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CACV 115/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 115 OF 2006
(ON APPEAL FROM HCAL NO. 141 OF 2008)
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IN THE MATTER of the Legislative Council Ordinance, Cap. 542
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and |
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IN THE MATTER of a Legislative Council election for the Information Technology Functional Constituency held on 7 September 2008 |
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BETWEEN
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MOK CHARLES PETER |
Petitioner |
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and
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TAM WAI HO |
1st Respondent |
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VINCENT FUNG HAO-YIN |
2nd Respondent |
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and
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SECRETARY FOR CONSTITUTIONAL
AND MAINLAND AFFAIRS |
Intervener |
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Before: Hon Tang Ag CJHC, Stock VP and Cheung JA in Court
Date of Hearing: 31 March 2011
Date of Judgment: 9 June 2011
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JUDGMENT
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Hon Tang Ag CJHC:
Introduction
1. This is Mr Mok's appeal against the dismissal by Reyes J of his election petition concerning the 2008 Election of the Information Technology (IT) Functional Constituency. At that election, Dr Tam was declared the winner. He had received 2,017 votes, beating his only opponent Mr Mok, who had received 1,982 votes, by 35 votes.
2. Legislative Council ("LegCo") elections are covered by the Legislative Council Ordinance (Cap. 542) ("LCO"), the Electoral Affairs Commission Ordinance (Cap. 541) ("EACO") and the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) ("ECICO"). Election for LegCo is held once every four years, under the supervision of an Electoral Affairs Commission ("EAC") which is constituted by the EACO. I ignore for the purpose of this judgment, the formation of the first LegCo in accordance with the decision of the National People's Congress of 4 April 1990, by-elections, or elections following upon a dissolution of LegCo in accordance with Article 70 of the Basic Law.
3. Under LCO, there must be a minimum of 42 days and a maximum of 63 days between the commencement of the nomination period and polling date. This period is the "Election Period" as defined in section 2 of ECICO. Election is defined in LCO as:
"an election to elect a Member at a general election or a by-election to elect a Member;"
4. The EAC is headed by a chairman who must be a judge of the High Court, appointed by the Chief Executive in consultation with the Chief Justice. There are two members who are appointed by the Chief Executive, in accordance with section 3 of the EACO.
5. The important functions of the EAC included, issuing:
"(a) guidelines relating to-
(i) the conduct or supervision of or procedure at an election;
(ii) the activities, in connection with an election, of-
(A) a candidate; …
(b) without affecting the generality of paragraph (a), guidelines relating to election expenses or the display or use of election advertisements or other publicity material in connection with an election; and
(c) guidelines relating to the procedure for making a complaint referred to in subsection (3)." Section 6(1) of EACO.
6. The EACO also provided that the EAC should consult the public in relation to the guidelines unless it was not practicable to do so because of an urgent need to issue, revoke or amend a guideline. Section 6(2) EACO.
7. Also section 6(3) of EACO required the EAC to:
"… consider as soon as reasonably practicable, any complaint relating to a guideline issued under subsection (1), and make any decision or, subject to subsection (4), take such action (including the issuing of a reprimand or censure), as it considers appropriate in respect of such a complaint."
8. However, before the EAC reprimands or censures, it should make a reasonable effort to contact the intended subject and give him a reasonable opportunity to make representations to the EAC as to why the reprimand or censure should not be issued. Section 6(4).
9. Guidelines have been published by the EAC, para 1.21 of which explained:
"The aim of such guidelines is to provide a code of conduct based on the principle of fairness and equality for conducting election-related activities and some directions in layman's language on how to comply with the relevant electoral legislation so that candidates can avoid breaching them due to inadvertence. Guidelines are issued for reference by the public to ensure that all public elections are conducted in an open, honest and fair manner. "
10. The importance of such Guidelines can be seen from para 1.24 which stated:
"Members of the public, in particular, electors, candidates and their agents as well as government officials engaged in election-related duties should read, familiarise themselves with, and strictly observe, these Guidelines."
11. Needless to say the Guidelines do not take precedence over any legislation, though, naturally, I would accord great respect to any guideline issued by the EAC.
The Videos
12. Between 30 May and 30 June 2008, a series of 8 videos (each between 60 and 90 seconds' length) entitled "IT 達人Talk" (known in English as "IT Guru Talk") were broadcasted on Cable TV. During the Election Period (which as noted, was the period between the nomination day, 19 July, and the polling day, 7 September 2008, para 3 above), there was a link to the videos via Dr Tam's websites, for which, Dr Tam paid Cable TV, who owned the copyright of the videos, $20,000.
13. Reyes J provided a helpful description of the contents of these videos. He said:
"23. The videos covered the following questions:-
(1) What sort of clothing does a trendy IT professional wear?
(2) Is it true that IT professionals are more likely to have daughters than sons?
(3) Do 'High Tech' computers 'mess up' by frequently breaking down?
(4) Do IT professionals often 'slack off' their job, especially by coming to work late?
(5) Are IT jobs being increasingly outsourced to 'IT guerillas' (that is, persons who accept outsourced jobs)?
(6) What relation is there between IT and environmental protection?
(7) What trendy slang expressions are used by IT people?
(8) Are mobile phones evolving from 'big tortoises' to 'small tortoises' (that is, becoming smaller and smaller)?
24. It will immediately be seen that the video topics are frivolous. They do not explore the nature of IT with any degree of profundity.
25. The profile of Mr. Tam which is screened in each video runs as follows (in translation):-
'Samson Tam's Most Extraordinary File
-- Chinese male with the title of 'Dr.'
-- Suspected to be in his forties
-- Identity not confirmed -- because he is too lazy to look up in the dictionary so he invented the first Chinese/English electronic dictionary
-- After some thinking, he also invented the first Cantonese reading machine for the blind
-- Fond of making a fuss, he has opened a listed technology company
-- So fond of playing football then he has set up a football team
-- Like karaoke singing in his spare time and has become the shareholder of a karaoke
-- Being enthusiastic about public affairs, he has established the first technology think tank
-- In order to explore business in innovative technology, he has also become an angel investor
-- Contributes money, efforts and even scientific research technology to promote technology development of Generation Next
-- Hence too many identities make him difficult to define
-- But is sure that he is extremely enthusiastic about technology development. He is a real super IT Guru."
The Election Petition
14. Section 61(1)(a) LCO provided the grounds on which an election might be challenged by an election petition. Mr Martin Lee, SC contended that Dr Tam was not duly elected on two bases.
15. First, because "corrupt or illegal conduct was engaged in by or in respect of [Dr Tam] at or in connection with the election;" contrary to section 61(1)(a)(ii) of LCO. I will refer to this as the "corrupt or illegal conduct" argument.
16. Section 61 provided the following definitions:
"'corrupt or illegal conduct' means corrupt or illegal conduct in contravention of the [ECICO];
'election' includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer."
17. Under section 24(1) of ECICO it was:
"… illegal conduct at an election if the aggregate amount of election expenses incurred at or in connection with the election by or on behalf of the candidate exceeds the maximum amount of election expenses prescribed …"
18. Mr Lee contended that the cost of the production of the videos should have been included in Dr Tam's election expenses, and if so included Dr Tam would have exceeded the maximum amount of election expenses permitted for the IT functional constituency as prescribed by Regulation 4(b)(ii) of the Maximum Amount of Election Expenses (Legislative Council Election) Regulation, Cap. 554D, i.e. $336,000 (the statutory maximum) in breach of section 24(1) of the ECICO.
19. The cost of producing or broadcasting the videos was at least $220,000. I say "at least" because that was the cost to Dr Tam after an 88% discount on Cable TV's published tariffs. Mr Lee submitted that the discount should be ignored unless Dr Tam could prove that the discount was generally available. He relied on para 16.20 of Chapter 16 of the Guidelines entitled "Election Expenses and Donations", where under the term "donation in kind" it said:
"Unless the discount is generally available to all customers, the difference between the market/regular price and the price charged is a donation and must be declared and included as such and correspondingly as an election expense in the form of return."
20. It probably does not much matter because it is common ground that if the entire cost of $220,000 is treated as an election expense, Dr Tam would have substantially exceeded the...
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