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Mok Charles Peter v Tam Wai Ho And Another

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date21 October 2011
Year2011
Judgement NumberCACV115/2009
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV115C/2009 MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

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)

____________

IN THE MATTER of the Legislative Council Ordinance, Cap. 542

and

IN THE MATTER of a Legislative Council election for the Information Technology Functional Constituency held on 7 September 2008

____________

BETWEEN

MOK CHARLES PETER Petitioner

and
TAM WAI HO 1st Respondent
VINCENT FUNG HAO-YIN 2nd Respondent

and
SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS Intervener

____________

Before: Hon Tang VP, Stock VP and Cheung JA in Court

Date of Hearing: 18 October 2011

Date of Judgment: 21 October 2011

________________

JUDGMENT

________________

Hon Tang VP:

1. This is the Petitioner's application for leave to appeal from our judgment of 9 June 2011.

2. It is said that the application involves questions, which by reasons of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3. Two questions have been identified, namely,

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

2. Is section 67(2) of the Legislative Council Ordinance, Cap 542 ('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' 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? ('Question 2')"

4. I take the first question to raise the issue whether expenses incurred prior to the public declaration of candidature or the statutory election period could be regarded as election expenses because they were incurred when the election could be said to be imminent. I remain of the view that the introduction of the concept of an election being imminent will create great uncertainty.

5. However, Mr Lee submits that the answer is Yes because in Fiona Jones [1999] 2 Cr App R 253 Lord Bingham described as succinct and accurate the following statement:

"An 'election expense' is 'spending during the election campaign or when it is reasonably imminent on something closely related to the machinery of the election, its processes, principally or primarily with the purpose and intention of promoting the candidate's election prospects'." 256F

6. But, as Lord Bingham has explained, in the United Kingdom:

"… The calling of a general election is a function of the Prime Minister. … In peacetime, general elections may be held in very close succession (as in 1910 and 1974), or at relatively short intervals (as in 1929/1931, 1950/1951 and 1964/1966), …" 255A

7. In my judgment of 9 June 2011 I noted the facts in Fiona Jones as follows:

"41. In Fiona Jones, the Prime Minister announced the general election on 17 March 1997. Mrs Jones was formally adopted as a candidate at a meeting on 29 March 1997. Parliament was dissolved on 8 April 1997. The Newark returning officer received the writ relating to the election on 9 April, and formal notice of the holding of the election was published on 11 April. Mrs Jones was duly nominated before nomination was closed on 14 April. Polling took place on 1 May. She was prosecuted because it was said that she and her election agent failed to declare expenses arising from the rental of an office in Newark (from which she later ran her campaign) during February and March 1997 before the election was called."

8. There was no suggestion in Fiona Jones or any of the cases which we have been referred to that prior to the announcement by the Prime Minister of his intention to call a general election (In the Borough of Oxford (1924) 7 O'M&H 49 another decision relied on by Mr Lee, the General Election was accepted to be imminent after the Prime Minister had announced a dissolution of Parliament), an election could be regarded as imminent for this purpose because, for example, of intense speculation (subsequently vindicated) that the Prime Minister might call an election. Elections are too important to permit such uncertainty.

9. Mr Lee emphasised the importance of this issue by reference to the forthcoming...

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