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Yu Chi Shing Paul v Tin Ping Estate Proprietor Concernment Association And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date10 December 2012
Year2012
Judgement NumberHCAL8/2012
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL8/2012 YU CHI SHING PAUL v. TIN PING ESTATE PROPRIETOR CONCERNMENT ASSOCIATION AND OTHERS

HCAL 8/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 8 OF 2012

________________________

BETWEEN

YU CHI SHING PAUL （余智成） Petitioner
and
TIN PING ESTATE PROPRIETOR CONCERNMENT ASSOCIATION
（天平邨業主關注組）
 1st Respondent
OR SIN YI WINDY （柯倩儀） 2nd Respondent
CHEN YEE, DONALD,
RETURNING OFFICER for the
TIN PING EAST CONSTITUENCY		 3rd Respondent

________________________

Before: Hon Lam JA in Court
(Sitting as an Additional Judge of the Court of First Instance)
Date of Hearing :30 October 2012
Date of Judgment : 10 December 2012

________________________

JUDGMENT

________________________

1. The Petitioner was a candidate in the Tin Ping East Constituency of the North District Council election held on 6 November 2011. He ran as an independent candidate without any affiliation to any political party. That election was contested. Amongst the four candidates, out of a total of 3,488 valid votes, the Petitioner got 1,006 votes. The returned candidate, the 2nd Respondent [“Or”] got 1,241 votes. The other candidates got 1,163 votes and 78 votes respectively.

2. The Petitioner challenges the election result by this election petition. He contends that Or was not duly elected because,

(a) She engaged in illegal conduct within the meaning of s26(2) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“ECICO”];

(b) An organization, Tin Ping Estate Proprietor Concernment Association [“the Association”] engaged in illegal conduct within the meaning of s26(1) of the ECICO.

3. Under s49 of the District Council Ordinance Cap 547 [“DCO”], a return in a district council election may only be questioned on the specified grounds set out in sub-section (1). Illegal conduct of, or in respect of, the returned candidate is one of the specified grounds, see s49(1)(a)(ii). Illegal conduct in respect of somebody else can only be relied upon if it was generally prevalent at or in connection with the election, see s49(1)(a)(iii). Thus, concerning the allegation of illegal conduct of the Association committed in respect of other candidates, the Petitioner cannot succeed unless he satisfied the court that such conduct was generally prevalent.

4. As summarized in the Agreed List of Issues, the substance of the complaints of the Petitioner stemmed from three different sets of statements[1]. The first set of statements was those published by Or in her election leaflets. The second set of statements was those published by Takungpo on 19 October 2011 and the Petitioner alleged that Or authorized the publication. The third set of statements was published by the Association.

The Takungpo statements

5. Takungpo is a newspaper in Hong Kong and it has a website on which articles in the newspaper are uploaded. The Takungpo statements which the Petitioner complaint about were part of a feature article written by a reporter of Takungpo about Or as a candidate of the Tin Ping East Constituency. The article contained this statement,

“柯倩儀…同時亦服務天平東一帶的居民十多年”

6. It is not disputed that Or had not been serving the Tin Ping East Constituency for more than 10 years. She frankly admitted that when she was cross-examined by Mr Wong, counsel for the Petitioner.

7. The real issue about the Takungpo statements is whether Or can be held responsible for the publication of those statements on the basis that she authorized the same. She denied she had authorized such a statement. In her affirmation of 5 May 2012 paras 14 and 15, she said,

“14. On a diver day during the Election Period, I received a call at DAB’s Northern Branch from a male allegedly from Takungpao. I was at that time very busy handling my Election leaflets with my volunteer helpers. I briefly talked with the said male over the phone. I remember I told the male that I had been participating in community services for over 10 years and I am sure that I had never told him that I had worked for the Tin Ping East constituency for over 10 years.

15. I do not know why the Takungpao reported in the way as it was. At all the material times, I did not read the said report and I had no knowledge thereof.”

8. The Petitioner did not adduce evidence to contradict her in this respect. Though Mr Wong did cross-examine Or about her knowledge of the article after its publication, there was nothing in the cross-examination which led me to conclude that I should reject Or’s evidence.

9. At the end, perhaps realizing his difficulty in establishing that Or had authorized the publication of the Takungpo statements, Mr Wong sought to argue that on proper construction of s49(1)(a)(ii) it does not matter that the illegal conduct was not engaged in by the returned candidate. Counsel contended even if it was only a publication by Takungpo without the authority of Or, the illegal conduct was still in respect of her and that is sufficient for the purpose of s49(1)(a)(ii).

10. I find Or to be a credible witness and I accept her evidence with regard to her lack of knowledge of the Takungpo article. There is no factual basis for holding that Or authorized the publication of the Takungpo statements in such manner. Though she had talked briefly with the reporter, she should not be held liable for the mistake of the reporter in reporting.

11. In respect of the argument as to acts committed by person other than the candidate under s49(1)(a)(ii), Mr Wong’s contention of law is correct. This is supported by the Chinese version of this subsection which reads,

“(1) 選出民選議員的選舉只可基於以下理由而受質疑─

(a) 選舉主任按照根據《選舉管理委員會條例》(第541章)訂立並正有效的規例宣布在該項選舉中當選民選議員的人，因以下理由而並非妥為選出─

(i) …

(ii) 該人在該項選舉中或與該項選舉有關連的事宜中作出或有人就該人在該項選舉中或該等事宜中作出舞弊或非法行為；或(由2000年第10號第47條修訂)…”

12. The problem with this contention is that the only plea in the Petition with reference to the Takungpo statement was that it was a statement published by Or, see paras 1(c)(ii), 16,19 and 20 of the Petition. There is no alternative plea that the publisher of Takungpo was the person who committed an illegal conduct in respect of Or. Mr Wong accepted this deficiency in the pleadings.

13. It is not simply a pleading point. There is strict time limit for the lodging of election petition and the court has stressed repeatedly that amendments which have the effect of bringing in a new ground for challenging the return would not be granted after the expiration of the time limit as it would be against the underlying policy for having such time limit. Further, if the new point is entertained, the court will need to have evidence from the publisher as to his belief in the truth of the statement. In the recent judgment by the Appeal Committee of the Court of Final Appeal in Re Ho Chun Yan, Albert FAMV Nos 21,22, 24,25, 26, 32, 33 and 34 of 2012, 13 November 2012[2], para 39, the requirement of the law in respect of a false statement as an illegal conduct under s26 of ECICO is stated as follows,

“It requires proof to the requisite standard that by reason its content it bore a materially false or misleading meaning and that it was uttered for the purpose of promoting or prejudicing a relevant candidate at a specific election, without a belief on reasonable grounds that the statement was true at the time when it was made.”

14. Though this might be an obiter as far as the reasonable belief of the publisher is concerned[3], I am of the respectful view that it must be correct. Illegal conducts are dealt with under Part 3 of the ECICO. In my judgment, what constitute illegal conducts under that part must be construed by reference to that part as a whole instead of simply focusing on one sub-section in s26. The first provision one comes across under Part 3 is s22(1) which states that any person who engages in illegal conduct at an election commits an offence. Thus, the Part makes the engagement in an illegal conduct an offence. Zooming in on the illegal conduct of publication of false statement, s26 must be read as a whole. s26(4) provides a defence of reasonable belief in a prosecution. Putting aside the question of burden of proof, once the court finds that the publisher of the statement has a reasonable belief the offence would not be established. In other words, the making of a statement with a reasonable belief would not be a conduct in contravention of Section 26, as such not an illegal conduct in contravention of the ECICO and therefore not within the definition of “corrupt and illegal conduct” under s49(3) of the DCO. As a matter of principle, I do not see why such a defence should only be available in a criminal prosecution but not when the same conduct is relied upon in an election petition. As the Appeal Committee observed at para 41 of the judgment in Re Ho Chun Yan, Albert, supra., the effect of s49(1)(a)(ii) is to make the commission of an offence by way of illegal conduct as a ground for questioning the election in an election petition. It follows that if the offence is not established, the ground in the petition is not made out.

15. Therefore, if the alternative basis for challenging the return has been pleaded, the court must examine the reasonable belief of the publisher and evidence has to be called in that regard. Neither party has adduced such evidence at the trial.

16. In such circumstances, it would not be right to allow Mr Wong to rely on this alternative basis.

17. The challenge based on the Takungpo statements fails.

The statements by Or in election leaflets

18. The relevant statements by Or in her election leaflets were in these terms,

“天平東是一個融合私人屋苑、公屋、租者置其屋、村屋及低密度住宅的社區，倩儀的社區工作就在這裏誕生、萌芽、成長。在區內我經常接觸不同的居民。透過閒談了解他們的生活，了解他們所需，亦從而與他們成為好朋友。

我服務社區不經不覺已十多年，多年來在區內舉辦多類型的活動，聆聽居民訴求，反映大眾意見，今天就讓...

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