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Mok Charles Peter v Tam Wai Ho And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date24 May 2012
Year2012
Citation(2012) 15 HKCFAR 489
Judgement NumberFACV2/2012
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV2/2012 MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

FACV No. 2 OF 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 115 OF 2009)

____________

BETWEEN
MOK CHARLES PETER Petitioner
(Appellant)

and
TAM WAI HO 1st Respondent
VINCENT FUNG HAO-YIN 2nd Respondent
____________
Before: Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Mr Justice Gleeson NPJ
Date of Hearing: 3 May 2012
Date of Judgment: 24 May 2012

_________________________

J U D G M E N T

_________________________

Chief Justice Ma:

A INTRODUCTION

1. We are, in this appeal, concerned with the elections to the Legislative Council which took place in September 2008, specifically the elections contesting the Information Technology Functional Constituency seat. Two candidates ran for that seat, the petitioner and the first respondent. At the conclusion of the elections, the first respondent was declared by the Returning Officer to be the winner. He had 2,017 votes in his favour while the petitioner had 1,982, a majority of 35 votes.

2. By an Election Petition dated 8 November 2008, the petitioner challenged the election of the first respondent on, among other grounds which no longer concern us, the basis that the first respondent had engaged in illegal conduct within the meaning of s 61 of the Legislative Council Ordinance Cap 542 (“the LCO”). This illegal conduct, which was said to contravene relevant provisions of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”), involved the failure to disclose the full extent of election expenses incurred by the first respondent in relation to the elections. Specifically, these expenses related to activities that took place prior to his public declaration that he was going to stand as a candidate in the elections for the functional constituency seat.

3. Reyes J dismissed the Petition on 9 April 2009. On 3 December 2009, the Court of Appeal dismissed the petitioner’s appeal on the basis that no appeal was possible as a matter of jurisdiction (s 67(3) of the LCO). This was reversed by this Court in a Judgment handed down on 13 December 2010 in which s 67(3) of the LCO was held to be unconstitutional. The consequence was that the appeal from the decision of Reyes J on the merits had to be heard by the Court of Appeal. The Court of Appeal, by a majority decision (Tang Ag CJHC and Stock VP, Cheung JA dissenting), again dismissed the petitioner’s appeal. The petitioner now appeals to this Court.

4. The second respondent was the Returning Officer for the elections and took no part in either the proceedings before the Court of Appeal or before us. In any Election Petition, the Returning Officer must be joined as a party: s 63(1) of the LCO. I shall hereinafter refer to the first respondent simply as the respondent.

A.1 The Issues

5. A number of issues were canvassed before the lower courts, but only two issues now concern us: first, whether the respondent had exceeded the election expenses allowed under ECICO and therefore engaged in illegal conduct; and secondly, if so, the consequence of this and specifically, whether the Court can or should substitute the petitioner in place of the respondent to be the duly elected representative of the Information Technology Functional Constituency seat in the September 2008 elections. The first issue involves a consideration of the ambit of election expenses under the relevant provisions in ECICO. The second issue involves examining the scope of the Court’s power to grant relief under s 67(2) of the LCO.

6. On 6 January 2012, the Appeal Committee of this Court granted leave to appeal to the petitioner on the following two questions:-

“(1) Do the expenses incurred by or on behalf of a person (who ultimately becomes a candidate) in a Legislative Council election in relation to a promotion exercise carried out before the election period or before he publicly declares an intention to stand as a candidate constitute “election expenses” within the meaning of section 2 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“the ECICO”) ?

(2) Is section 67(2) of the Legislative Council Ordinance, Cap 542 (“the LCO”), requiring the Court to determine, in the event that it has determined that the person whose election is questioned was not duly elected, “whether some other person was duly elected instead” confined only to the ground that “material irregularity occurred in relation to the election” (such as polling, irregular votes, or counting) and does not apply to the other three grounds set out in section 61(1)(a) of the LCO, in particular, that “illegal conduct was engaged in by or in respect of (the candidate) at or in connection with the election” who has incurred election expenses exceeding the statutory maximum limit?”

I shall refer to these questions as, respectively, the First Issue and the Second Issue.

A.2 The facts relevant to the Issues

7. The facts relevant to the First Issue regarding election expenses center on the expenses incurred by the respondent (or on his behalf) in relation to eight video programmes that were broadcast on Cable Television between 30 May and 30 June 2009. These video programmes, each lasting between 60 and 90 seconds, were broadcast about 600 times during that period.

8. The Judgments of the Courts below detail the contents of these videos. It is unnecessary for me to set out the contents again. It is sufficient to say that these programmes featured only the respondent, and were intended to enhance his image and profile.

9. The evidence showed that a sum of $220,000 was spent by a company called TechMatrix Research Centre Limited (“TRC”) (of which the respondent was a director and 50% shareholder) on the airtime given for the broadcast of the videos on Cable Television. This was paid by TRC to Hong Kong Cable Television Ltd (“HK Cable TV”). It can be assumed that this was money spent on behalf of the respondent. In the Courts below, the petitioner asserted that the sum spent by TRC should in fact be taken as being over $2 million, and not just $220,000. The $200,000 had been a discounted figure (an 88% discount). This argument was maintained before us. The assertion was based on certain election guidelines provided by the Electoral Affairs Commission (“the EAC”) which stated that unless a discount was generally available, any discounted amount should be included in the computation of election expenses. Both Courts below had no difficulty in finding that the discount given to the respondent was a genuine discount that was available to all customers. This finding cannot be disturbed.

10. On 20 June 2008, the Chief Electoral Officer of the EAC gave notice in the Government Gazette that the elections for functional constituency seats in the Legislative Council would take place on 7 September 2008. He also specified 19 July 2008 as the commencement date for nominations to be made for candidates for functional constituency seats in these elections (the period when nominations should be made is known as the nomination period). On 13 July 2008, the respondent publicly announced (at a press conference) his intention to stand as a candidate for the Information Technology Functional Constituency seat.

11. The broadcast of the videos took place before these dates. The significance of these dates from a legal point of view will be dealt with later in this Judgment.

12. The videos were also uploaded onto the respondent’s website, his web log (blog) and on YouTube both before and after these dates. The purpose behind this was obviously to enhance the public image of the respondent. Since the copyright in the videos belonged to HK Cable TV, a sum of $20,000 had to be paid by the respondent to that company for this uploading. This sum was declared by the respondent as part of his election expenses, but not the $220,000 that he (or rather, TRC) paid. The respondent maintains that the sum of $220,000 did not constitute election expenses. Whether or not they were election expenses was the question in the Courts below and is the same factual question that is before us for determination. Reyes J made a number of important findings of fact (after hearing oral evidence), to which I shall refer when dealing with the First Issue.

13. As stated above, the elections for the Information Technology Functional Constituency seat of the Legislative Council took place on the 7 September 2008, when the respondent was elected.

14. Subsequent to the elections, as required by s 37 of ECICO, the respondent lodged with Chief Electoral Officer of the Electoral Affairs Commission an election return (dated 10 November 2008) setting out his election expenses. These expenses were stated at $187,129.13. If the $220,000 had to be included as part of his election expenses, the maximum amount allowable (being $336,000 as we shall presently see) would have been exceeded, and the respondent would thereby have engaged in illegal conduct for the purposes of ECICO. I will set out the relevant law in the next section when dealing with the First Issue.

15. There are three further matters that I ought to highlight at this stage before leaving the facts:-

(1) The EAC (the body responsible for the conduct and supervision of elections: see s 4(b) of the Electoral Affairs Commission Ordinance Cap 541 (“EACO”)) received a letter dated 11 July 2008 from Mr Sin Chung-kai (the incumbent at that time of the Information Technology Functional Constituency seat) in which a complaint was made relating to...

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