Lam Kin Man v Leung Wai Kuen Edward And Another

CourtCourt of Final Appeal (Hong Kong)
Judgment Date11 Jul 2013
Judgement NumberFAMV11/2013
SubjectMiscellaneous Proceedings (Civil)
FAMV11/2013 LAM KIN MAN v. LEUNG WAI KUEN EDWARD AND ANOTHER

FAMV No 11 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO11 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCAL NO 1 OF 2012)

_______________________

Between :

LAM KIN MAN Petitioner
(1st Respondent)
and
LEUNG WAI KUEN EDWARD 1st Respondent
(Applicant)
and
KWOK WONG WING-KI VICKI (RETURNING OFFICER FOR THE KING’S PARK CONSTITUENCY) 2nd Respondent
(2nd Respondent)
and
CHIEF ELECTORAL OFFICER Intervener

_______________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ
Hearing and Determination: 4 July 2013
Date of Reasons for Determination: 11 July 2013

_______________________

REASONS FOR DETERMINATION

_______________________

Mr Justice Tang PJ:

1. Section 27(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”) makes it illegal conduct at an election for a candidate to publish or authorize publication of an election advertisement which implies that the candidate has the support of named persons or organizations unless, before publication of the advertisement, the person or organization has consented in writing.

2. On 22 October 2011, the applicant published an election advertisement which listed 58 supporters of whom 52 had not given their written consent before publication. On 6 November 2011, he was returned as the elected candidate in the District Council election, winning the election by two votes. He received 1045 votes while his main rival, the 1st respondent, obtained 1043 votes.

3. By an election petition dated 5 January 2012, the 1st respondent challenged the applicant’s election. One of the complaints relied on concerned the aforesaid election advertisement.

4. On 28 June 2012, in HCMP 1321/2012, the applicant applied for relief under s 31 of ECICO on the basis that publication of the advertisement without the prior written consent of the named supporters constituted illegal conduct contrary to s 27(1) of ECICO.

5. Under s 31(2) the court may grant relief but only if it:

“(a) is satisfied that -

(i) the act or omission was due to inadvertence, an accidental miscalculation or any reasonable cause and was not due to bad faith; … and

(b) believes it to be just that the applicant should not be subjected to one or more of those penalties and disqualifications.”

6. HCMP 1321/2012 was heard before Lam JA on 10 January 2013. It was accepted that in the applicant’s election advertisements, there were 58 claimed supporters of whom 5 had consented in writing on or before 17 October 2011, and one had consented in writing after 17 October 2011. 4 supporters told ICAC investigators that they had given verbal consent of support to the applicant on an unrecorded date prior to 17 October 2011. The other 48 claimed supporters (which included 6 organizations) told ICAC investigators that they had given their verbal consent of...

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