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Te Wing Chi v Secretary For Justice

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date19 November 2021
Neutral Citation[2021] HKCFI 3473
Year2021
Judgement NumberHCMP981/2021
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP981/2021 TE WING CHI v. SECRETARY FOR JUSTICE

HCMP 981/2021

[2021] HKCFI 3473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 981 OF 2021

________________________

IN THE MATTER of Section 40 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554)
and

IN THE MATTER of a discontinued Legislative Council general election for the Hong Kong Island geographical constituency originally scheduled to be held on 6th September 2020

________________________

BETWEEN
TE WING CHI Applicant

and
SECRETARY FOR JUSTICE Respondent

________________________

Before: Hon Coleman J in Chambers (Open to Public)

Date of Submissions: 1, 8 and 15 November 2021

Date of Decision: 19 November 2021

_________________

D E C I S I O N

_________________

A. Introduction

1. By Originating Summons dated 14 July 2021, the Applicant seeks an order allowing her to lodge the ‘Return and Declaration of Election Expenses and Election Donations’ (“Election Return”) with the Chief Electoral Officer, out of time. For the reasons which will be traversed below, the Election Return was due to be lodged by 29 September 2020. Therefore, the Applicant is asking for a significant extension of time of over nine months. But, also for the reasons which will be traversed below, the Election Return involves no election expenses and election donations at all.

2. The application is made pursuant to section 40 of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”). The Applicant is represented by Mr Kev LH Wan and Mr Colman Li, Counsel.

3. The Secretary for Justice (“SJ”), as respondent to the application, takes a neutral stance. But she also has a duty to assist the Court by drawing to its attention any matters which may cast doubt on the Applicant’s case. The SJ is represented by Ms Ally Shum, Government Counsel.

4. I directed the matter to be dealt with on paper, by reference to written submissions to be filed in accordance with a set timetable. Mr Wan and Ms Shum have filed their respective submissions on 1, 8 and 15 November 2021.

5. Having considered those submissions, this is my Decision.

B. Factual Background

6. I take most of the following factual background from the evidence filed by the Applicant, some of it filed in response to the evidence filed by an officer of the Registration and Electoral Office (“REO”), which evidence I have also taken into account.

7. The particular facts giving rise to this application arose in the circumstances of the then unprecedented postponement of the 2020 Legislative Council General Election (“2020 Election”), with polling originally scheduled to take place on 6 September 2020. The nomination period for the 2020 Election commenced on 18 July 2020 and ended on 31 July 2020.

8. Only an hour or so before the closure of that nomination period on 31 July 2020, the Applicant submitted her application of candidacy to the Central and Western District Office of the Home Affairs Department (“HAD”). The Applicant was to be a candidate for the Hong Kong Island geographical constituency. She had no prior experience in running for an election. She had no political affiliation with any political party, and no election agent and/or manager.

9. However, also on 31 July 2020, the Government announced that due to the severe public health situation caused by COVID-19, the Chief Executive in Council had decided to invoke the Emergency Regulations Ordinance Cap 241 to postpone the 2020 Election for a year to 5 September 2021.

10. The widely and publicly advertised media announcements and press releases emphasised the fact of the decision to “postpone” the 2020 Election. The original press releases also identified that measures to deal with the postponement remained undecided, including as to the lacuna in the Legislative Council sixth term, which was about to expire.

11. Therefore, the Applicant says that at the time she submitted the application of candidacy, although the officers of the HAD received the nomination, they were unclear about the logistics arising from the just announced postponement. Obviously, at that point, the Applicant had not yet commenced any election campaign, nor had she incurred any election expenses or received any election donation. Nor did she ever do so.

12. The later resolution that the sixth term of the Legislative Council be extended for not less than one year was made on 11 August 2021.

13. Prior to submitting her application for candidacy, the Applicant had studied the materials given to her by the officers of HAD. She had noted, and reached the understanding, that section 37(1B) of the ECICO requires a candidate to ensure her election return is lodged before expiry of the period of 60 days after an election is “settled”, which is defined in section 37(1C) to mean the later date of the events being either (1) the result of the election is notified in the Gazette, or (2) the election is declared to have failed.

14. On that basis, the Applicant believed that the postponement was neither such scenario, and erroneously misunderstood that she did not have to file the return. That belief or understanding was correct at the time, but not correct after 1 August 2020, when The Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation Cap 241L (“Regulation”) came into operation. As Mr Wan says, the Regulation, amongst other things, superseded and/or superimposed the new deadline for submission of an election return, outside the long-established statutory framework under the ECICO. The new period for the Applicant to have lodged her Election Return was for 60 days starting 1 August 2020, therefore expiring on 30 September 2020.

15. The Applicant says she was first aware of the Regulation and its effect – and, therefore, her failure to have filed the Election Return in time – only when she was requested by ICAC officers to attend an interview in around February 2021. Thereafter, the Applicant says, she...

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