Re Kong Chan Nam
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HCMP 567/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 567 OF 2015 _______________
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_______________ DECISION INTRODUCTION 1.I have before me an application made by way of an ex parte originating summons dated 11 March 2015 seeking the following relief:-
2.Notice of the application has been given to the Secretary for Justice. By a letter dated 8 May 2015 from the Department of Justice to Messrs Leung, Tam & Wong (the applicant’s solicitors), the Secretary for Justice informed the applicant that he has no objection to the present application. BACKGROUND FACTS 3.This application arose out of the election (“the Election”) of rural representative for Pak Ngan Heung, Mui Wo, Lantau Island (“the Village”), which was held on 4 January 2015. The applicant stated that he had been a resident for some 43 years, and an active member, of the Village, but had no previous experience in any election. He said that in early November 2014, he was approached by other residents of the Village to stand as candidate for the forthcoming election of rural representative for the Village, and he decided to participate in the Election on 18 November 2014. The applicant engaged his wife, who similarly had no previous experience in election matters, to act as his election agent. 4.The applicant stated that he was given a lot of materials from the Home Affairs Department in relation to the Election. He was given to understand that he had to submit an election return to the Returning Officer within 30 days after the publication of the result of the Election, and mistakenly thought that this requirement also applied to election advertisements and other permission and consent forms. The applicant now accepts that the time for submitting election advertisements and permission and consent forms is within 1 day after their publication as required by Chapter 4 of the Guidelines on Election-related Activities in respect of the Rural Representative Election (“the Guidelines”). 5.In conjunction with the Election, the applicant published:-
6.The 14 December Leaflet contained the names of two residents of the Village, namely, Mr Chow Wo and Mr Wong Man Hon. They gave their consent in writing for the inclusion of their names in the 14 December Leaflet on 10 and 13 December 2014 respectively. 7.The Banner was displayed at certain private premises, and the relevant permission for the display of the Banner at those premises were given in writing by Ms Yuen Yuet Wah and Mr To King Tin on 14 and 15 December 2014 respectively. 8.Although the applicant did submit copies of the 14 December Leaflet and the Banner to the Returning Officer on 10 December 2014, the applicant failed to make available electronic copies of the same for public inspection in accordance with the requirements set out in section 92(2) of the Regulation, or submit the Consent Forms and Permission Forms to the Returning Officer in accordance with the requirements set out in section 92(3) of the Regulation and paragraph 4.42 of the Guidelines. As a matter of fact, the Consent Forms and Permission Forms were submitted to the Returning Officer only on 15 January 2015. 9.In so far as the 26 December Leaflet is concerned, the applicant similarly failed to submit the same to the Returning Officer until 15 January 2015. Also, the applicant failed to make available an electronic copy of the 26 December Leaflet for public inspection in accordance with the requirements set out in section 92(2) of the Regulation. 10.The applicant explains that the failure to comply with the relevant requirements imposed by section 92(2) and (3) of the Regulation and the Guidelines was due to a misunderstanding of the relevant requirements on the part of himself and his wife. 11.The applicant points out that all necessary consent and permission were obtained prior to the publication of the 14 December Leaflet and the Banner, and all expenses and details of the 14 and 26 December Leaflets and Banner were properly set out in the election return submitted on 15 January 2015. He further submits that his failure to comply with the aforesaid requirements was due to inadvertence and not due to bad faith. Discussion 12.Section 92(1)(a) of the Regulation states as follows:-
13.Section 92(2)(a) and (b) of the Regulation states as follows:-
14.Section 92(3) of the Regulation goes on to state as follows:-
15.Finally, section 93(1) and (2) of the Regulation provides as follows:-
16.The requirements imposed by the Electoral Affairs Commission relevant for the present purposes are set out in paragraph 4.42(d) of the Guidelines, which provides as follows:-
17.In the present case, the non-compliance with the aforesaid requirements imposed by section 92(2) and (3) the Regulation and paragraph 4.42(d) of the Guidelines relates to (i) the 26 December Leaflet, (ii) the Consent Forms in respect of the 14 December Leaflet, and (iii) the Permission Forms in respect of the Banner. On the other hand, as earlier noted, copies of the 14 December Leaflet and the Banner were duly submitted to the Returning Officer on 10 December 2014. 18.The principles applicable to an application under section 93 of the Regulation are well established. For this purpose, “inadvertence” means “negligence or carelessness where the circumstances show an absence of bad faith”: see Re Brook Bernacchi [1957] HKLR 185, at 186 per Gould J; Re Liu Sing Lee [2003] 3 HKLRD 162, at §26 per Chu J (as she then was). Also, there must generally be some reasonable excuse for the inadvertence before the court would grant relief: see Re Brook Bernacchi, supra, at 186; Re Sai Kung Constituency Regional Council Election, ex p Leung Kam Ho Gilbert [1994] 3 HKC 544, at 550; and Re Country Councils’ Elections, Layton and Woodbridge’s Case (1889) 5 TLR 198. 19.I am satisfied on the evidence that the non-compliance with the aforesaid requirements imposed by section 92(2) and (3) of the Regulation and paragraph 4.42(d) of the Guidelines in respect of (i) the 26 December Leaflet, (ii) the Consent Forms, and (iii) the Permission Forms, was due to inadvertence and not due to bad faith on the part of the applicant, and believe it to be just that they be excepted from those requirements. 20.I am therefore prepared to make an order excepting the requirements under section 92 of Regulation as it applies to (i) the 26 December Leaflet, (ii) the Consent Forms, and (iii) the Permission Forms. 21.In passing, I should mention that it is not clear, on the face of the 14 December Leaflet, whether the mere mentioning of the names of Mr Chow Wo and Mr Wong Man Hon in that document indicated their support of the applicant in relation to the Election, and it is open to argument as to whether (i) their consent to the mentioning of their names in the 14 December Leaflet was required to be obtained, and (ii) the Consent Forms were required to be submitted to the Returning Officer. However, out of an abundance of caution, I am prepared to make an appropriate order to cover the Consent Forms as well. 22.In so far as section 27 of the Ordinance is concerned, it does not appear to have application on the facts of the present case, there being no allegation or suggestion that the applicant had not obtained the written consent of Mr Chow Wo and Mr Wong Man Hon for the mentioning of their names in the 14 December Leaflet prior to the publication of the same. The Department of Justice has also confirmed in a letter dated 8 May 2015 to Messrs Leung, Tam & Wong that the Secretary for Justice does not insist on an application under section 31 of the Ordinance. In these circumstances, I am not prepared to make an order under that section of the Ordinance. DISPOSITION 23.In all, I make an order as indicated in paragraph 20 above, with no order as to costs. 24.Before I leave this matter, I wish to say something about the procedure adopted in making the present application. As earlier mentioned, this application was commenced by way of an ex parte originating summons. Order 7 rule 2(1) of the Rules of the High Court provides (inter alia) that every ex parte originating summons shall be in Form No 11 in Appendix A, and rule (1C) goes on to provide that Form No 11 is to be used “if there is no party on whom the summons is to be served”. 25.In relation to applications under the Electoral Affairs Commission Ordinance or its regulations or the Ordinance to, effectively, cure irregularities in the conduct of elections, I understand that there has not been any uniform practice by practitioners on whether to make such applications on an ex parte or inter partes basis. In Re Fan Gary Kwok Wai and 8 Others, HCMP 1980/2013 (20 January 2014) which concerned applications under section 106 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation, and sections 31(2) and 40(4) of the Ordinance, Au Yeung J noted at paragraph 53 of her judgment that the applications before her were made on an ex parte basis with notice to the Department of Justice. In my view, the Secretary for Justice has an obvious interest in applications of this nature, and would likely be able to provide valuable assistance to the court. I venture to suggest that in future, such applications ought to be made on an inter partes basis with the Secretary for Justice being joined as respondent to the applications. 26.In the present case, as noted above, notice of the application has been given to the Secretary for Justice who has indicated that he has no objection to the relief sought by the applicant. I am content to proceed on the basis of the ex parte originating summons currently before me, but I will not be prepared to do so in future in the absence of some convincing justification for proceeding in such manner.
Mr Ryan T H Law, of Leung, Tam & Wong, for the applicant Ms Evelyn Tsao, of Department of Justice, for the Secretary for Justice |
Cases cited in this judgment