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Ho Yin Fai v Wu Chi Kin And Another

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date04 October 2017
Year2017
Judgement NumberHCAL28/2016
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL28/2016 HO YIN FAI v. WU CHI KIN AND ANOTHER

HCAL 28/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2016

____________

IN THE MATTER of the District Councils Ordinance, Cap 547

and
IN THE MATTER of a District Council election for the Chi Choi Constituency held on 22 November 2015

____________

BETWEEN
HO YIN FAI (何賢輝) Petitioner

and
WU CHI KIN (胡志健) 1st Respondent
CHOI MA ON-KI, ANGEL 2nd Respondent
(the Returning Officer for the Chi Choi Constituency)

____________

Before: Hon Au-Yeung J in Court
Dates of Hearing: 11 and 12 July 2017
Date of Judgment: 4 October 2017

_______________

J U D G M E N T

_______________

A. INTRODUCTION

1. The District Council Election was held on 22 November 2015 (“the Election”). The Chi Choi Constituency was one of the constituencies of the Wong Tai Sin District Council. Tan Fung House and Chi Mei House of the Choi Hung Estate formed part of the Chi Choi Constituency.

2. The Petitioner (“Mr Ho”) and the 1st Respondent (“Mr Wu”) were both candidates contesting the Chi Choi Constituency seat in the Election. The 2nd Respondent declared that Mr Wu was elected for the Chi Choi Constituency on 23 November 2015, notice of which was gazetted on 30 November 2015. Mr Wu defeated Mr Ho by 5 votes.

3. Mr Ho challenges the result of the Election by reason of 3 types of allegedly corrupt or illegal conduct of Mr Wu in connection with the Election:

(1) Provision of food, drinks or entertainment (“1st Ground”);

(2) Publishing of false or misleading election advertisement that included a false claim of support (“2nd Ground”); and

(3) That corrupt or illegal conduct was generally prevalent at or in connection with the Election (“3rd Ground”).

B. UNDISPUTED FACTS

4. The Choi Hung Estate Social Service Association (“the Association”) was a registered non-profit organisation set up in 1984. Its objects were to serve the residents in the Choi Hung Estate, respect the elderly, care for the young and the weak, promote and organize civic activities in order to promote harmony in the neighbourhood and the spirit of mutual caring.

5. Amongst other activities, the Association organized Respect for the Elderly Meals (“the Meals”) annually.

6. Since 2013, Mr Wu has been a volunteer officer of the Association, assisting in organizing activities, health checks, meeting the public and home visits.

7. The Association organized 6 kinds of activities in 2015 (“the Activities”) that formed the subject matter of the 1st Ground:

(a) Between 26 July 2015 and 30 August 2015, 12 buffet lunches, each with a day trip and sightseeing transportation, to the residents in Choi Hung Estate in every Saturday and Sunday;

(b) Between 7 and 16 September 2015, distribution of gift packs of rice to most residents at Choi Hung Estate;

(c) Between 22 September 2015 and 25 September 2015, distribution of gift packs of mooncakes and fruits free of charge to residents at Choi Hung Estate;

(d) On 11 October 2015, 2 sessions of the Meals were held. The President of the Association Mr Wong Chai Chung (“the President”) stated in a speech that Mr Wu could not attend those Meals because he had already stood nominated as a candidate for the Election;

(e) Between 16 and 30 October 2015, holding 10 Chinese afternoon-tea buffets (“the Chinese Buffets”) for residents of the Choi Hung Estate;

(f) Between 1 and 10 November 2015, holding 20 afternoon-tea buffets in a hotel (“the Hotel Buffets”) for residents for the Choi Hung Estate.

Those meals were all below cost and gift packs for free.

8. In between the 6 Activities, on 1 October 2015, Mr Wu held a Pledge Ceremony and declared his intention to stand for election in the Election. On 5 October 2015, Mr Wu stood nominated as one of the candidates for the Election.

9. On 14 October 2015, Mr Ho and other residents of the Chi Choi Constituency lodged a complaint to the Registration and Electoral Office (“REO”) (“the Oral Complaint”). Eventually the Returning Officer did not consider the complaints to fall within her purview and, with the consent of the complainants, referred the matter to the ICAC.

10. On 20 October 2015, Mr Wu submitted a Consent to Support Form (“the Consent Form”) to REO. The Consent Form contained a declaration that Mr Wu had obtained the support of the Mutual Aid Committee of Tan Fung House (“the MAC”) in a “general meeting”. In fact, no such general meeting was ever held. There was only a purported committee meeting held by the MAC on 10 October 2015 (“the Committee Meeting”).

11. In November 2015, Mr Wu started distributing pamphlets which stated that he had the support of the MAC (“the Pamphlets”).

12. Mr Ho alleged that the Pamphlets contained a false declaration of support in that no general meeting of Tan Fung House was held. This formed the 2nd Ground.

13. Mr Ho also alleged that corrupt or illegal conduct was prevalent. This formed the 3rd Ground.

14. Mr Ho had made a report to a “government authority”, presumably meaning the ICAC.

15. On 21 December 2015, the ICAC invited Mr Wu to assist in the investigation regarding corrupt or illegal conduct during the Election. Mr Wu was never arrested or charged.

C. THE DEFENCES

16. Mr Wu does not dispute that the Activities had taken place but denies knowledge of or consent to the arrangement of the Activities. He did not take part in the Activities and was not involved in packing the gifts. In fact, he was not aware that gifts would be distributed until 14 October 2015.

17. He claims that after the Pledge Ceremony, he had on the same day immediately informed the Association. He had since ceased attending the local activities of the Association or used its name to do any advertising or home visits.

18. He claims to have told the Association not to mention him in any activities or distribute any advertising items and gifts with his photo and/or name; and to cover his name and/or photo with white paper on all advertising materials (“the Oral Request”). He believed that someone had removed the covering white paper without his or the Association’s consent.

19. Mr Wu also claims that he had taken reasonable steps to verify the alleged support and that he reasonably believed that the statement of support of MAC was true at the time it was made.

20. The issues are as follows:

(1) Whether the Activities were for the purpose of inducing the public to vote for Mr Wu in the Election; or were otherwise corrupt conduct;

(2) Whether Mr Wu knew about and had given consent to the organizing of the Activities for the designated purpose;

(3) Whether the claim of support of the MAC on Mr Wu’s election advertisements was false or misleading;

(4) Whether Mr Wu had taken reasonable steps to verify the alleged support from the MAC before causing it to be published in his election advertisements and/or statements.

D. BURDEN AND STANDARD OF PROOF

21. The first 2 Grounds in this election petition are based on sections 12(1)(a), 26 or 27 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”) and the 3rd Ground is based on section 49(1)(a)(iii) of the District Council Ordinance, Cap 547.

22. The burden is on Mr Ho to establish the Grounds. The standard of proof is one of balance of probabilities. However, as the allegations involve criminal misconduct punishable by imprisonment, cogent evidence is required notwithstanding these are civil proceedings: Re Ho Chun Yan Albert (2012) 15 HKCFAR 686, Appellate Committee, at §25.

23. The Appellate Committee further observed, obiter, in the context of illegal conduct under section 26 of the ECICO, that:

“… A more demanding approach is called for where it is sought to establish the commission of a criminal offence as the relevant election petition ground. The Court would have to determine whether it is proved to a standard equivalent to the criminal standard that the words, given their natural and ordinary meaning, constituted a materially false or misleading statement made with the purposes specified and without belief on reasonable grounds in the truth of the statement.” (at §41)

24. This observation has been applied to election petitions in (a) Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association, HCAL 8/2012, 10 December 2012, at p 10, §27, Lam JA (as Lam VP then was) (sitting as an additional judge of the Court of First Instance) where his Lordship called for a “more stringent approach” in determining the meaning of a statement; and (b) Wong Yun Keung Simon v Lam Cheuk Ting, HCAL 29/2016, 30 November 2016, at pp 9-10, §§14-15, G Lam J.

25. By the same token, the stringent approach should be equally applicable to corrupt conduct under section 12 of the ECICO, because:

(a) The maximum penalty for corrupt conduct is more than that of illegal conduct. Corrupt conduct is punishable by up to 3 years’ imprisonment on summary conviction, and up to 7 years on conviction on indictment: section 6 of the ECICO.

(b) The court cannot grant relief to a candidate who commits corrupt conduct whereas relief can be granted for certain illegal conduct: section 31 of the ECICO.

E. 1ST GROUND: PROVISION OF FOOD, DRINKS OR ENTERTAINMENT

E1. Legal principles

26. Section 12(1)(a) of the ECICO provides that:

“(1) A person engages in corrupt conduct at an election if the person provides, or meets all or part of the cost of providing, food, drink or entertainment for another person for the purpose of inducing the other person or a third person—

(a) to vote at the election for a particular candidate or particular candidates;

…

(6)...

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