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Re Tam Wai Ho

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date09 April 2009
Year2009
Judgement NumberHCMP202/2009
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCAL000141/2008 MOK CHARLES PETER v. TAM WAI HO AND ANOTHER

HCAL 141/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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

HCMP 202/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 202 OF 2009

____________

IN THE MATTER of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554
and
IN THE MATTER of a Legislative Council election for the Information Technology Functional Constituency held on 7 September 2008

____________

TAM WAI HO Applicant

____________

(Heard together)

Before: Hon Reyes J in Court

Dates of Hearing: 7 and 9 April 2009

Date of Judgment: 9 April 2009

_______________

J U D G M E N T

_______________

I. INTRODUCTION

1. In the 2008 LegCo Election Mr. Mok and Dr. Tam were the only 2 candidates for the Information Technology (IT) Functional Constituency. The Election Period ran from 19 July (nominations day) to 7 September 2008 (polling day).

2. The results of the Election were declared on 8 September. Dr. Tam received 2,017 votes, while Mr. Mok received 1,982. Dr. Tam was therefore the winner with a slim majority of 35 votes.

3. Mr. Mok now makes a number of complaints about the conduct of Dr. Tam’s campaign.

4. First, Mr. Mok complains that immediately before the Election Period Dr. Tam commissioned a series of 8 videos (each between 60 to 90 seconds length) entitled “IT Talk” (known in English as “IT Guru Talk”). The series featured Dr. Tam as host.

5. The videos were broadcast on Cable TV between 30 May and 30 June 2008.

6. The videos (Mr. Mok says) highlighted Dr. Tam’s profile, image, reputation and popularity in the IT sector. They were in effect (Mr. Mok contends) political advertisements for Dr. Tam.

7. By causing the videos to be broadcast on Cable TV before the Election Period, Dr. Tam (Mr. Mok claims) gained an unfair advantage. This (Mr. Mok argues) was contrary to Guidelines on LegCo Elections (Guidelines) published by the Electoral Affairs Commission.

8. Second, Mr. Mok complains that, in breach of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulations (Cap. 541D sub leg) (Regulations), Dr. Tam failed to furnish 2 copies of the videos to the Election Returning Officer.

9. Before and during the Election Period the videos were accessible by the public through websites associated with Dr. Tam (such as Dr. Tam’s YouTube account and Dr. Tam’s blog). Since the videos must have been intended to enhance Dr. Tam’s profile as an IT constituency candidate, Dr. Tam (Mr Mok argues) should have provided copies of the videos to the Returning Officer.

10. Dr. Tam has since provided copies of the videos to the Returning Officer. But that was only after complaint was made.

11. Third, Mr. Mok says that, contrary to the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554) (EO), Dr. Tam exceeded the maximum amount ($336,000) which an IT candidate may spend to secure election to LegCo.

12. Following the Election, Dr. Tam declared in his Return of Expenses and Donations that he had incurred expense of $187,129.13 for the purposes of the Election. But the Return did not include the cost of producing or broadcasting the videos (at least $220,000).

13. Mr. Mok contends that the full cost of producing and broadcasting the videos should have been included in Dr. Tam’s Return as the videos were used to promote Dr. Tam during the Election Period. Had that full cost been taken into account, Dr. Tam (Mr. Mok argues) would have surpassed the permissible maximum by at least some $70,000.

14. Fourth, Mr. Mok contends that Dr. Tam failed to disclose miscellaneous items in his Return. Those items relate to the salaries of campaign staff, the expenses of promotional gatherings and materials, and sundry travelling expenses. Mr. Mok says that, in so failing to declare those items of expense, Dr. Tam acted illegally and corruptly.

15. On the basis of his complaints, Mr. Mok petitions the Court to annul Dr. Tam’s election and declare Mr. Mok the winner instead.

16. Dr. Tam accepts that his Return contained omissions. Those admitted omissions are $1,950 for drinks; $1,010.20 for petrol; $5 for a T-shirt; and $27 for a donation. Even if these items are added to the $187,129.13 declared in his Return, the resultant figure (Dr. Tam points out) would still be well below the $336,000 maximum.

17. Dr. Tam applies to the Court to exercise its power under the EO to allow him to correct his Return to reflect the omissions accepted by him. He says that those items were left out inadvertently. He says that he had no intention deliberately to mislead or make false statements in his Return.

18. Apart from those identified items, Dr. Tam does not accept that his Return was defective.

19. He denies that he acted corruptly or that he surpassed the limit of election expenses. He disagrees that the videos were political in nature. He says that the videos were made to generate interest in IT among the general public.

20. Dr. Tam further observes that, insofar as the videos were shown before the Election Period, that was a time when Dr. Tam was only contemplating running for the IT constituency. Before the Election Period, he was not yet certain that he would run and had not declared himself to be a candidate.

21. In any event, Dr. Tam points out that he accounted in his Return for the cost ($20,000) of making the videos accessible through his websites during the Election Period. That $20,000 cost was the amount which Dr. Tam paid to Cable TV for a licence to show the videos on his websites.

II. DISCUSSION

A. Complaint 1: Were the videos political advertisements before the Election Period?

22. The videos concern a variety of IT-related topics. Typically, in each video, a passerby asks some question about the IT industry. Dr. Tam comes on the scene and attempts to answer the question. Shortly after Dr. Tam appears, a resume of his credentials as an “IT Guru” is flashed onscreen.

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.”

26. Mr. Martin Lee SC (appearing for Mr. Mok) submits that the broadcasting of the videos before the Election Period violated Broadcasting Ordinance (Cap.562) (BO). That provides in Sched. 4 §12:-

“A licensee shall not include in its service any advertisement of a religious or political nature or concerned with any industrial dispute.”

27. A licensee is defined in BO s.2 as the holder of a licence to provide television programme services. Cable TV is a licensee.

28. Mr. Lee further points to Guidelines §11.4 which states:-

“No unfair advantage should be offered to or obtained by any candidate/GC list over others regarding election campaigning.”

29. Mr. Lee contends that, before the Election Period, Dr. Tam by the videos promoted his prospective candidacy. The videos were broadcast on TV contrary to BO Sched.4 §12 and in effect obtained for Dr. Tam an unfair advantage over Mr. Mok.

30. I am not persuaded by Mr. Lee’s submission.

31. In fact Mr. Sin Chung Kai (the previous incumbent of the LegCo IT constituency) complained about the broadcast of the videos to the Broadcasting Authority (BA).

32. In response, the BA stated on 27 October 2008:-

“The BA noted that (i) the series of eight...

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