Dr. Chow Chun Bong v. Secretary for Justice

HCMP 93, 94, 95, 96, 97, 99 & 100/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO93 OF 2014

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO94 OF 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO95 OF 2014

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO96 OF 2014

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO97 OF 2014

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO99 OF 2014

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO100 OF 2014

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R E A S O N S   F O R   J U D G M E N T

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1.These 7 applications are for reliefs under sections 40(3) and 40(5) of the Elections (Corrupt and Illegal Conduct Ordinance), Cap 554 (“the Ordinance”).

The background

2.The applicants were doctors and candidates in the 2011 Election Committee Subsector Election for the Medical Council.  They ran as a group of 7.  Save for Doctor Law, the other applicants were duly elected.

3.The applicants engaged the services of one Public Communication Strategic Consultancy Limited (“PCSC”) to run their election campaign.  Each applicant appointed his/her own election agent and election expense agent, 3 of whom were employees of PCSC, namely Mr Sam Wong for Doctor Chow (applicant in HCMP 93/2014), Ms Winnie Fu for Doctor Chu (applicant in HCMP 94/2014) and Ms Kathy Chan for Doctor Ko (applicant in HCMP 96/ 2014). 

4.The election return of each applicant was compiled through the coordination of PCSC, by collating the shared common expenses incurred by PCSC on behalf of the 7 applicants and the record of expenses of each of the election agents or election expense agent.  Consequent upon enquiries of ICAC, the applicants have discovered certain errors in and omissions from their election returns.   Those can largely be divided into 2 parts: (1) common errors/omissions; and (2) special errors/omissions applicable to 4 applicants only.

The legal principles

5.Under section 40(3) of the Ordinance, the court can make an order to enable the applicants to correct errors in their respective election return. The court will exercise its powers to grant relief if it is satisfied that the error was due to inadvertence or an accidental miscalculation by the applicant or any other person, or any reasonable cause; and was not due to the applicants’ bad faith: section 40(4).

6.Under section 40(5) of the Ordinance, the court can make an order excepting the applicants from the requirement laid down in section 37(2)(b)(i) of the Ordinance to submit invoices and/or receipts to the Returning Officer.  The court will make an order if it is satisfied that the error was due to inadvertence or an accidental loss or destruction of the invoice or receipt by the applicant or any other person; or any reasonable cause and was not due to the applicants’ bad faith: section 40(6).

7.“Inadvertence” means negligence or carelessness where the circumstances show an absence of bad faith. The evidence should show some reasonable excuse for the inadvertence and the negligence must not be of so gross a nature or so culpable as of itself to raise doubts concerning the good faith of the applicant: Re Brook Bernacchi & Ors [1957] HKLR 185, at 186.  See also Wong Yee Him v Secretary for Justice, HCMP 611/2000, 10 March 2000, per Deputy Judge Li who commented that the decision in Re Brook Bernacchi was largely justified on the ground that there were joint candidates involved and the accounts for the shared expenses were more complicated than usual.

8.In Leung Wai Kuen Edward v Secretary for Justice, HCMP 1321/2012, 17 January 2013, at para 54, Lam JA (sitting as an additional judge of the Court of First Instance) observed in relation to section 40(5) relief,

“Whilst it may be argued that a failure to accompany the return with the requisite invoice and receipt in accordance with s37(2)(b) would constitute an offence under s38(1), and as such the court may have the power to grant relief under s40(5), I do not believe it is the intention of the legislature to require an applicant who has already produced some proper documentation to verify an item of expenses and given adequate explanation on the practical difficulties in strict complicate with s37(2)(b) to come to court to seek relief simply because the documents were not in the format of a separate invoice or receipt exclusively for that item …”

The common errors/omissions

9.The common errors or omissions can be classified as follows:

10.The applicants seek the same relief under sections 40(3) and (5) of the Ordinance in respect of the common issues.

11.I am satisfied from the evidence filed by each applicant and Ms Kathy Chan that the errors in classes 2 and 3 were clearly miscalculations.  The errors in classes 4, 5 and 6 were made out of inadvertence in transcribing the figures from the supporting documents onto the Return or in reporting an item. 

12.In respect of class 5, the Declaration of Election Advertisement not Submitted by Email dated 28 November 2011 to the Returning Officer and the corrective Declaration on the following day correctly stated that 12,000 copies of booklets had been printed.  Thus the expenses in respect of class 5 were declared elsewhere and there was clearly no bad faith involved: Leung Wai Kuen Edward v Secretary for Justice, above.

13.In respect of error in class 6 (one email to the press sent by PCSC for the 7 applicants), the production costs of this and other emails were covered by the service fee of PCSC.  Due to misunderstanding of the staff of PCSC, the related internet service fee as not reported to the applicants nor was it charged by PCSC.  With the internet service invoices, the one day charge for each applicant is now reported.

14.As a result of discovery of the errors/omissions, it is appropriate to adjust the total or sub-total calculations accordingly.

15.It was quite clear that the errors or omissions had no impact on the correctness on the overall picture of the election expense of each applicant and the ceiling for election expense has not been exceeded.  There was no bad faith involved.  It was just to grant relief under section 40(4) of the Ordinance.

16.In respect of class 1, the invoice or receipt of a relevant item would have disclosed the expense.  There was clearly no intention to conceal.  The omissions were consequences of carelessness of the election agents in not asking for or retaining the relevant invoices or receipts.  The items of expenses have been reported in the Returns.  There was clearly no bad faith on the part of either the applicants or their election agent

17.PCSC had, pursuant to the request of the applicants, obtained retrospectively the issue of some of the invoices and official receipts by the relevant service providers.

18.It was just to grant relief under section 40(6) of the Ordinance.

The special errors/omissions

19.The special issues concern firstly, additional taxi fares expended by Doctor Chow and Doctor Chu.  These applicants seek relief excepting them from submitting the receipts of tax fares of less than $100 to the Returning Officer.

(i) Doctor Chow: 5 items of taxi fares, each for less than $100.

(ii) Doctor Chu: 3 items of taxi fares, each for over $100; 4 items of less than $100;

(iii) Doctor Fang: 5 items of taxi fares, each for less than $100; and

(iv) Doctor Poon: 7 items of taxi fares, each for less than $100.

These taxi fares have been reported in section E2 of the relevant Returns.  The applicants have failed to ask for receipts.  For obvious reasons, the receipts cannot be issued retrospectively. 

20.Secondly, there was an additional item 6 of an email sent on 9 December 2011 by Doctor Fang to his university classmates for the election campaign.  There was an additional cost of $13 incurred by him.  The internet service invoice and receipt were lost.

21.Thirdly, Doctor Law strictly did not have a special error but he did clarify the charges for van hire, bus and MTR.

22.These errors or omissions were clear inadvertence and there was no bad faith involved in any of the applicants or their election agents. It is appropriate to grant relief under section 40(5). 

Conclusion

23.I make an order in terms of each of the amended originating summons.  All errors and omissions on the returns shall be corrected by filing a corrective return with the Returning Officer within 7 days from today.

24.Since the Secretary for Justice is not seeking costs, I make no order as to costs.

25.I thank Mr Pao and Ms Tsao for their assistance.

(Queeny Au-Yeung) Judge of the Court of First Instance High Court

Mr Felix Pao, instructed by T.S. Tong & Co, for all the applicants

Ms Evelyn Tsao, Government Counsel of the Department of Justice for the respondent