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)

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BETWEEN

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JUDGMENT

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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 election of the Chief Executive.  He submitted that a decision on the first issue may bear on the conduct of the likely candidates.  He said some potential candidates might have acted on the majority judgment.  Whether that is so or not, it is not a sufficient reason for leave to be given.

10.  In any event whether this is a point of great general or public importance, I would not grant leave to appeal.  In deciding whether to exercise our discretion to grant leave I believe we are entitled to consider the strength of the appeal.  Where a member of the court has taken a contrary view, normally I would be unwilling to express any view on the strength of the appeal.  In this case, I feel I must express a view to explain why I do not believe this is an appropriate case for us to grant leave to appeal.  The strength of the appeal (which, with respect, I regard as low) is one reason why I would not grant leave to appeal.  Also, I would be slow to grant leave to appeal because it is desirable that election petitions should be resolved quickly.  In refusing leave I know that, if thought appropriate, the Appeal Committee will give leave to appeal.  And an application to the Court of Final Appeal for leave to appeal can be heard relatively quickly.  There is also the advantage that in granting leave, the Appeal Committee may require the appeal to be heard expeditiously.

11.  So far as the second question is concerned, it was hardly argued before us.  In any event, it depends on the first issue and is academic otherwise.

12.  The Applicant also relies on the "or otherwise limb".

13.  He relies on the decision of this Court in Syed Haider Yahya Hussain and Another v. The Registrar of Births and Deaths (unreported, CACV 77/2000, dated 20 February 2001) where leave to appeal on the "or otherwise limb" was granted.  In doing so, Rogers VP, giving the judgment of the Court, said:

         "In my view, in this case the words 'or otherwise' are probably applicable in this case.  This is a matter of immigration.  It is a developing branch of law.  The decision of the Court of Appeal was a majority decision and overruled the judge below.  There are, therefore, clearly issues to be decided there.  Without saying more at this stage, immigration cases might be considered to be cases which are appropriate to be decided by the Court of Final Appeal.  Whether that situation will continue for long is a matter to be seen.  At any rate at this stage, the issues in this case are sufficient to bring the case within the proviso 'or otherwise' to merit giving leave to appeal to the Court of Final Appeal."

14.  It is true that our decision was not unanimous. But, that is not a sufficient reason for leave to appeal to be granted. 

15.  In Richfine Development Ltd t/a Keng Fai Jewellery v. Hugh Rupert Rivington (unreported, CACV257/2008, dated 22 June 2009) (Tang VP, Cheung JA and Yuen JA), we said:

"17.   … leave to appeal on the 'or otherwise' limb should rarely be granted by this court."

16.  I would refuse leave to appeal.

Hon Stock VP:

17.  It would seem from a combination of the terms of the first question posed and the argument advanced in support of it, that the gravamen of the majority judgment of this Court has been misunderstood as suggesting that expenses incurred before the election period for material used during the election period were not election expenses as defined.

18.  A reading of paragraphs 115 to 118 inclusive makes clear, I would suggest, that I expressed the view that "expenses incurred before the election period, the fruits of which are used during the election period may nonetheless constitute election expenses": see para 115.  Implicit in paragraph 116 , where the emphasis, by contrast, is on an exercise carried out (ie promotion material used) before the election, is the contrary scenario with which this case was primarily concerned.

19.  So, on the basis of the majority judgment, the answer to the question posed would be: "It depends on whether the material created by the expenses is utilised during the election period."

20.  That said, I can see that the issue to which the question is directed, albeit not as precisely as it might, is a question of importance.  But the construction contrary to the view of the majority opens a Pandora's box of uncertainty and the subject matter and the balance of the arguments are such that it seems to me that this is the type of case in which, for the reasons explained by Tang VP, it would be more appropriate for the question of leave to be determined by the Court of Final Appeal.

21.  I would therefore refuse leave in relation to the first question.

22.  As for the second question, it was not suggested - certainly not by my judgment in the appeal - that section 62 was connected with the specific grounds for questioning an election specified by section 61.  The question posed by section 62 is whether, if a person was not duly elected, some other person was duly elected instead.  That must turn on the facts.  I would refuse leave on the question posed.

23.  On the "or otherwise" limb, I would refuse leave for the reasons given by Tang VP.

Hon Cheung JA:

24.  For my part I consider the issues of pre-election expenses and the basis for the operation of section 67(2) of the Legislative Council Ordinance as identified by the two framed questions are matters of great general public importance that merit an examination by the Court of Final Appeal.  Accordingly, I would grant leave to appeal.

Hon Tang VP:

25.  By a majority leave to appeal is refused with a cost order nisi that the Petitioner pays the Respondent the costs of this application to be taxed unless agreed.

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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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 statutory maximum.  However, I will deal with Mr Lee's submission about the discount later in the judgment.

21.  Secondly, because the broadcast amounted to advertisement of a political nature within the meaning of section 12 of Schedule 4 to the Broadcasting Ordinance, Cap. 562 ("BO"), which gave Dr Tam an unfair advantage over Mr Mok and:

"... thereby caused a material irregularity to occur in relation to the Election within the meaning of section 61(1)(a)(iv) of the LCO."

22.  Section 12 of Schedule 4 to the BO provided:

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

23.  A contravention of this provision may result in substantial financial penalties.  Section 28 of BO.

24.  Under section 61(1)(a)(iv) an election may be questioned on the ground that a:

"material irregularity occurred in relation to the election, or to the polling or counting of votes at the election;"

25.  I will refer to this as the material irregularity argument. 

Corrupted or Illegal Conduct

26.  It is common ground that the expense of an election advertisement should be regarded as an election expense.  However, Mr Lee did not contend that the videos were election advertisement. 

27.  The EAC was of the view that they were not election advertisement.  In EAC's letter to Dr Tam dated 29 August 2008 in connection with a complaint to the EAC that the cost of the videos should be included as an election expense, the EAC after referring to the definitions of candidate and election advertisement in section 2 of ECICO and noting the fact that at a press conference on 13 July 2008, Dr Tam had declared that he would participate in the election, and that he had submitted a nomination form on 19 July, went on to say:

   "Upon understanding the contents of the above-mentioned programme, our committee is aware that the programme mainly introduced the work and life of those working in the information technology field. Although it did not mention the election matters nor did it contain canvassing messages, you were the host of every episode with the screen showing your name, technological inventions in the past, interests, and work in the information technology sector.

     Based on the provisions of the above-mentioned ordinance and our observation, our committee is of the opinion that prior to your public announcement of participating in the 2008 Legislative Council election on 13 July this year, you were not a 'candidate' defined in the Elections (Corrupt and Illegal Conduct) Ordinance and therefore the related programme broadcasted in the above-mentioned period is not an election advertisement and the related expenses are not election expenses as well. However, as the time of the broadcast (5 to 27 June this year) is very close to the time of your public announcement of participation in the election (13 July this year), and the related programme can help you to become more famous. It is likely for the public to query your purpose of making the above-mentioned programme and lodge complaints against you. Therefore, our committee hereby reminds you to avoid conducting similar promotion activities which are held close to your public announcement of participation in the election."

28.  In this context, the following definitions in section 2 of ECICO may be noted:

"'candidate' (候選人)-

(a)     means a person who stands nominated as a candidate at an election; and

(b)     also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election,

and in relation to an election to return Members for a Legislative Council geographical constituency, includes a person who is one of a group of candidates;

……

'election advertisement' (選舉廣告), in relation to an election, means-

(a)     a publicly exhibited notice; or

(b)     a notice delivered by hand or electronic transmission; or

(c)     a public announcement made by radio or television or by video or cinematographic film; or

(d)    any other form of publication,

published for the purpose of promoting or prejudicing the election of a candidate or candidates at the election;

……

'election expenses' (選舉開支), in relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of-

(a)     promoting the election of the candidate or group; or

(b)     prejudicing the election of another candidate or group,

and includes the value of election donations consisting of goods and services used for that purpose;

'election period' (選舉期間), in relation to an election, means the period beginning with the nomination day for the election and ending with the polling day for the election (or the last polling day if there is more than one polling day);"

29.  Whilst not disputing that the videos were not election advertisement, Mr Lee submitted that since election expense is defined in ECICO as:

"… expenses incurred … before, during or after the election period, … for the purpose of-

(a)     promoting the election of the candidate …"

the expense associated with the videos was an election expense, because the videos were political advertisement within the meaning of the BO. 

30.  Mr Lee relied on what the learned judge said about the videos in his judgment, as follows,

(1)  They "are undoubtedly advertisement" (Judgment §34);

(2)  They focused on the personality of Dr Tam (Judgment §45); and

(3)  undeniably promote a favourable image of Dr Tam (Judgment §46); and

(4)  "would ... have (and must have been intended to have) the effect of advertising Dr. Tam to the IT community" (Judgment §35).

(5)  promoted Dr Tam as an IT professional … (and) a suitable candidate for the IT sector (Judgment §61);

31.  What I have quoted in para 30(1), (2), (3) and (4) can be taken at face value.  However, the context of para 30(5) is important.  That observation was made by the learned judge when he was dealing with the fact that during the Election Period there was a link to the videos via Dr Tam's websites.  It was in that context that the learned judge said:

"61.   The videos promoted Dr. Tam as an IT professional.  Consequently, their being available online in the context of the Election Period has to be treated as an attempt to promote Dr. Tam as a suitable candidate for the IT sector.

62.    With the change of context, the videos became an election advertisement. …"

32.  Much of Mr Lee's submissions both before us and below revolved around the question whether the videos could be regarded as political advertisement for the purpose of BO.  Whilst such submissions may be germane to his material irregularity argument, in relation to the corrupt or illegal conduct argument, they obscured the true issue.  I prefer to focus on whether the expense associated with the videos could be said to have been incurred "for the purpose of … promoting the election of the candidate".

33.  Mr Lee correctly submitted that an election expense may be incurred before the election period. 

34.  The Borough of Oxford (1924) 7 O'M&H 49 (a decision of Sankey and Swift JJ), is a leading authority on the point.  There, the court was concerned with section 8 of the Corrupt and Illegal Practices Prevention Act, 1883, which provided:

"Subject to such exception as may be allowed in pursuance of this Act, no sum shall be paid and no expense shall be incurred by a candidate at an election or his election agent, whether before, during, or after an election, on account of or in respect of the conduct or management of such election, in excess of any maximum amount in that behalf specified in the first Schedule to this Act."

35.  One of the complaints in the election petition was that the successful candidate, Mr Gray, was guilty of illegal practices by spending more than the maximum amount which he was entitled in law to spend in respect of the conduct and management of his election. Mr Gray was a sitting member for Oxford, having won the election held on 15 November 1922 as the Liberal candidate. In May 1923, he caused post-cards to be printed, in order that when the anniversary of his victory arrived in November he could send a message of thanks and goodwill to the electors. The post-card was printed at a cost of £72 17s. The maximum election expense at the time was £547.  The cards carried the following words:

"Polling Day, November 15th, 1922. You did not forget me a year ago. I shall not forget you. Frank Gray."

as well as a picture of the Houses of Parliament, with an inset of Mr Gray. At that time a Conservative Government, with Mr Baldwin as Prime Minister, was in power. On 25 October Mr Baldwin made a speech at Plymouth which indicated to many people that a Parliamentary Election could not be long postponed; in the afternoon of 13 November Mr Baldwin announced a dissolution of Parliament; on 16 November, Parliament was dissolved; on 17 November, the writ for the election was received at Oxford; on 20 November, Mr Gray was adopted as the Liberal candidate for Oxford City; 26 November was the nomination day; 6 December, polling and declaration of the poll. In the meantime, some of the post-cards were delivered to the post office on 13 November, and the remainder on 14 November, and they were posted on the later date.  Counsel for Mr Gray accepted announcement of the dissolution of Parliament on the afternoon of 13 November as the time when a General Election was imminent. 

36.  The court held that the expense of printing the post cards were election expenses although they were incurred before an election was imminent.  Sankey J explained:

"... It is impossible to hold that merely because the post-cards were ordered and paid for before the election day they were not an election expense. That would be contrary to the Act of Parliament. It would enable a man to store up literature long before an election in order to use it at the critical moment. …"  page 73

37.  And Swift J added:

   "I have therefore to ask myself whether material which may be used for electioneering purposes, paid for and received long before an election is contemplated, and acquired for quite a different purpose, is within the prohibition of s. 8, if in fact used for the purpose of promoting the success of a particular candidate at an election, and, in my opinion, it is. To hold otherwise would be to enable a candidate to store up electioneering material, paid for long before the election, until such time as it might be used, and so to defeat entirely the object of the section. With whatever motive the expenditure was originally incurred, the result of that expenditure was used for promoting this election, and it therefore comes, in my opinion, within the purview of s. 8."  page 93

38.  On the basis that an election expense may be incurred before an election, Mr Lee went on to submit that the expense incurred in relation to the broadcast of the video is election expense because the videos were political advertisement and they were broadcasted when the election was imminent. 

39.  However, in TheBorough of Oxford, the expense of the postcards was not regarded as an election expense because the postcards were political, they were regarded as election expense because they were used "on account of or in respect of the conduct or management of" the election. 

40.  Another relevant authority is a decision of the English Court of Appeal, Fiona Jones [1999] 2 Cr App R 253, which is concerned with section 76 of the Representation of the Peoples Act.

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.   

42.  The judgment of the Court was given by Lord Bingham CJ (as he then was) who said:

"Section 76 of the 1983 Act provides, so far as relevant:

'Limitation of election expenses

(1) No sum shall be paid and no expense shall be incurred by a candidate at an election or his election agent, whether before, during or after an election, on account of or in respect of the conduct or management of the election, in excess of the maximum amount specified in this section ...'

Section 118 of the Act defines 'election expenses' as meaning

'expenses incurred, whether before, during or after the election, on account of or in respect of the conduct or management of the election'.

Section 76 contains a formula to determine the maximum sum which a candidate may incur as election expenses at a general election. In the case of the Newark constituency in 1997 the total was £8,905.60.

The expressions now found in sections 76 and 118 have been in force, in different Acts, since 1883. They have been considered by the courts in a number of cases, most of them somewhat elderly. From these cases, certain principles relevant to these appeals can be drawn. Parliament has not, deliberately, chosen to enact that an election shall begin, or that election expenses shall begin to be incurred, at any specified time. It has instead defined election expenses by reference to their purpose for which the expenses in question are incurred, that is whether before, during or after the election, on account of or in respect of the conduct or management of the election (section 76(1); section 118). Election expenses are not incurred where a constituency party carries on its ordinary political activity otherwise than with reference to a specific election which is reasonably imminent, even though such activity has the ultimate aim of winning public support and gaining or retaining power in the constituency; nor are they incurred by a candidate who nurses a constituency. An election expense means expenses incurred, by or on behalf of a particular candidate, closely related to the machinery of the election, for the prime or principal purpose of promoting the interests of that candidate. The trial judge directed the jury succinctly and accurately in this case when he said (at page 9A of his summing-up):

'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".'" (Emphasis added)

43.  After saying that the summing up reflected the effect of a long line of cases including McCrory v. Hendron and Another [1993] N.I. 177, DC, Lord Bingham went on to say that at page 195 in McCrory, Kelly L.J. held that section 76 required proof of two elements: that the expenditure should be closely related to the machinery of an election; and that the expenses should be primarily or principally incurred for the promotion of the interests of the candidate. 

44.  Reyes J said:

"… Fiona Jones suggests (I think correctly) that, to qualify as an election expense, it must be established that a payment is 'so closely related to the machinery of an election'. It is not enough that the payment goes towards promoting a particular person."  Para 75.

45.  Mr Lee submitted that the learned judge erred in holding that to qualify as an election expense, it must be established that a payment is "so closely related to the machinery of an election" or that section 76 of the Peoples Act 1983, "contains a similar definition of 'election expenses' as that found in EO s.2." (para 72).  Reyes J also erred, Mr Lee submitted, when he took the view that it was not enough that the payment goes towards "promoting a particular person". Mr Lee submitted that the English tests stemmed from the statutory definition of "election expenses" in the UK since 1883 as: "expenses incurred, whether before, during or after the election, on account of or in respect of the conduct or management of the election" whereas in Hong Kong, "election expenses" is defined as: "expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of... promoting the election of the candidate ...".

46.  I do not believe the difference in language to be significant.  I note the passage in Swift J's judgment in TheBorough of Oxford quoted in para 37 above, where he asked:

"… whether material which may be used for electioneering purposes, … [was] in fact used for the purpose of promoting the success of a particular candidate at an election, …" (Emphasis added)

47.  I note also the direction to the jury in Fiona Jones to consider whether the expense was incurred "with the purpose and intention of promoting the candidate's election prospects" which Lord Bingham regarded as succinct and accurate.  See para 42 above. 

48.  It is helpful to note the following passages from Lord Bingham's judgment:

"… The intensity of political activity in the country varies from constituency to constituency, and from time to time. In many constituencies there is always some political activity. But it is probably true that the intensity of political activity between elections is higher in constituencies in which the representative of a different political party looks to have a reasonable chance of winning the seat at the next election than in a constituency where the tenure of a sitting member or the party he or she represents appears secure; and the intensity of political life in a constituency is likely to quicken when it is known that a general election is approaching. It is very normal, and has been for a century or more, for someone who does not currently represent a constituency but who hopes or expects to seek election in a forthcoming general election, to nurse a constituency: that is, the prospective or potential candidate tries to become known to and supported by as many voters as possible, so that when the election comes the candidate's views, personality, concerns and achievements will commend themselves to as many voters as possible. A sitting member does not nurse a constituency in quite this way: but, by performing his duties as representative of his constituents, and attending to their concerns, the member is likely to become known, directly or indirectly, to many of them."

49.  The expenses associated with such political activities, for they must be so regarded, were not regarded as election expenses as Fiona Jones shows.

50.  I believe expenditure "for the purpose of promoting the election of the candidate" in our definition required the expenditure to be, as Lord Bingham said in Fiona Jones and adopted by Reyes J at para 75 of his judgment, "closely related to the machinery of an election". 

51.  It follows, I agree, with respect, with the learned judge that an advertisement which merely promotes a favourable image of Dr Tam or promotes him to the IT community is not sufficient.  Even when it could be said, they have made him, generally, more electable.

52.  Furthermore, whether an expense was so closely connected with an election is largely a question of fact, one on which I cannot, nor would I, disagree with the learned judge. 

53.  I must deal with the emphasis placed in both The Borough of Oxford and Fiona Jones, on whether an expenditure was incurred when an election was imminent.  This formed an important plank in Mr Lee's submission.

54.  When considering the concept of an imminent election it is helpful to remember that in the United Kingdom as Lord Bingham LCJ explained in Fiona Jones:

"… The calling of a general election is a function of the Prime Minister. The maximum period between general elections is fixed by statute, the minimum period is not. 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), or at intervals approaching the statutory maximum (as in 1974/1979 and 1992/1997)."

55.  I would add that as The Borough of Oxford shows, Mr Gray who was elected on 15 November 1922 faced a snap general election in 1923. 

56.  In Hong Kong, the situation is different. General elections are to be held once every 4 years. There must be a minimum of 42 days and a maximum of 63 days between the commencement of the nomination period and polling day (the Election Period).  I believe it is unhelpful to introduce a concept of a period where an election could be regarded as imminent, for the purpose of the calculation of election expenses.  The question, at what time, may an election be regarded as imminent, is of course a question of fact, hence, fact sensitive and uncertain.

57.  Mr Lee submitted that the broadcasts took place when the election was imminent.  Presumably, he regarded all the broadcasts between 30 May and 30 June 2008 to be caught by the imminence test.

58.  In this regard, it is useful to note that in Chapter 16 of the Guidelines which was devoted to "Election Expenses and Donations" para 16.2 provided:

"16.2    Election expenses mean expenses incurred or to be incurred before, during or after an election, by a candidate or his election expense agent on his behalf for the purpose of promoting his election, or prejudicing the election of another candidate or other candidates and include the value of election donations consisting of goods and services used for that purpose [s 2 of the ECICO].  The term 'candidate' relating to election expenses ( and donations) therefore includes a person who has publicly declared an intention to stand for election in respect of a constituency at any time before the close of nominations for the election, regardless of whether he has submitted his nomination form or after submission of the nomination form, his nomination is ruled invalid by the RO [s 2 of the ECICO].  A prescribed person who has applied under PCBP (LC & DC) Reg to have his emblem registered should not, by that act alone, be treated as having publicly declared an intention to stand for election."

59.  Para 16.2 is a helpful guideline and, no doubt, a product of public consultation.  It provided clear guidance to a candidate and other persons involved in an election.  I am unwilling to engraft, on this guideline, an uncertain period, when an election is said to be imminent. 

60.  Elections must be allowed to be determined by the electorate.  Its credibility depends on it.  A candidate who has followed the Guidelines and won an election should not be unseated because of fine arguments. I would be reluctant to hold that, outside of the Guidelines, expenditure promoting a potential candidate when an election could be said to be imminent, which must be a question of fact on which reasonable disagreement is possible, should be included.

61.  Further, I would note that the following paragraphs in Chapter 11 of the Guidelines "Election Broadcasting, Media Reporting and Election Forums":

"11.7    During the election period (ie the period beginning with the commencement of the nomination for the election and ending with the polling day for the election), broadcasters should ensure that the 'equal time' principle as well as the 'no unfair advantage' principle are applied to all political parties or political organisations which have members contesting the LegCo election and the said prescribed bodies, whether or not contesting the same constituency. If a political party or a political organisation whose members contest as candidates in the election is invited to take part in a current affairs or any other programme whose entire or partial theme is on the election, then all political parties or political organisations which have members contesting the LegCo election or a prescribed body the registered name or registered emblem of which has been printed on any ballot papers for the election, whether or not contesting the same constituency, should also be invited.

……

Candidates Appearing on TV/Radio/Movie as Presenters, Regular Contributors, Actors, Musicians, Singers or Other Entertainers

11.9     A presenter, including a guest presenter, or a regular contributor should not appear in any programme in his normal programme role after he has publicly declared his intention to stand for the election or during the election period if he becomes a candidate. This is to avoid unfair extra publicity for him at the critical time. A presenter or regular contributor may, of course, appear as a candidate in election forums referred to in Part IV below.

11.10   A person who has contracted to appear as presenter, regular contributor, actor, musician, singer or any other form of entertainer in any performance scheduled to be shown before his declaration of intention to stand for the election or before and after the election period may always do so and continue to do so. However, such a person should make his utmost endeavour to request the person(s) responsible not to broadcast his appearance in any media after his declaration of intention to run for the election or during the election period if he becomes a candidate.

Candidates Appearing in Commercial Advertisements

11.11   A person should not participate in the making of an advertisement in which his image, name or voice appears ('the relevant advertisement') and which he knows will be broadcast on TV/radio/cinema after his declaration of intention to stand for the election or during the election period if he becomes a candidate.

11.12   If, after the relevant advertisement has been made, the person then decides to run in the election, and it comes to his attention that the relevant advertisement will appear in TV/radio/cinema after his declaration of intention to stand for the election or after the nomination period has commenced if he becomes a candidate during that period, he should make his utmost endeavour to request the person(s) responsible not to broadcast the relevant advertisement after his declaration of intention to stand for the election or during the election period." (Emphasis added)

62.  These paragraphs highlight the importance placed on the election period and the public declaration of one's candidacy (public declaration) whichever is earlier.  I believe the introduction by the court of a concept of an imminent election which may predate either would undermine the Guidelines.  Unless compelled by the clear language of the legislation, I would not forsake the clarity of the Guidelines.  I have already mentioned the requirement of public consultation before guidelines are made.  No doubt the EAC would take into the account the importance of certainty, e.g. from what time should the calculation of election expenses commence?  I have alluded to the immense practical difficulty of uncertainty.  Given that the court is not unanimous, I believe I should elaborate.  How should one know when an election could be said to be imminent?  3 months, 2 months, 1 month?  Wouldn't any period be artificial?  Might it vary according to the constituency or the elective office?  Might it depend on what preparatory steps had been taken by a potential candidate?  If an uncertain period is engrafted, should the statutory maximum be revised?  Should it remain the same if the expenditure covers a longer period?  But how is the statutory maximum to be fixed until it is known what is the period of imminence?

63.  In the affirmation of Dr Tam at para 47, he referred to the cost of advertisement boards that were placed at the entrance to the Tate's Cairn Tunnel and Tseung Kwan O Tunnel from March 2008 and April 2008 respectively by Mr Tong Ka Wah, Ronny and Mr Tien Pei Chun James, Dr Tam said:

"Mr Tong Ka Wah, Ronny and Mr Tien Pei Chun, James announced their intentions to run for the election on 13 July 2008 and 19 July 2008 respectively, which were after the advertisement boards were displayed.  The costs in relation to the making and the display of these advertisement boards were not included in both Mr Tong and Mr Tien's Return and Declaration of Election Expenses and Donations."

64.  I think such conduct probably reflected the common understanding of Guideline 16.2 and illustrated the danger of interference by the courts.

65.  Moreover, if a concept of an election being imminent has any place under our legislation, I can see no reason not to regard the choice by the EAC, reflected in the Guidelines, to adopt the date of public declaration if its earlier than the election period to be the critical earliest date for so many of the provisions, as where the line should be drawn for imminence.

66.  Nor would a period spanning public declaration, if earlier, and the election period be unreasonably short.  Because as one might expect, it is publicity within such period which is likely to have the most impact on the outcome of an election.  Indeed, often it is only when the whole field of candidates are known (after the nomination period has ended) that uncommitted voters would begin to consider the relative merit of the candidates.  It therefore makes sense to impose a statutory maximum for expenditure covering the election period or from public declaration, if earlier.

67.  Mr Lee has also referred us to cases concerning illegal treating or bribes, in particular, Youghal Election Petition (1869) IR 3 CL 530, which has been referred to in the judgment of Cheung JA which I have the advantage of reading in draft.  That was a case of illegal treating.  In essence it decided that illegal treating could take place before a person became officially a candidate.  There, the respondent arrived at a constituency before the issue of the writ for election and declared he was a candidate and would stand as such at the election to be held.  The treating took place before he was a candidate for Parliament which was defined as including:

"… all persons elected to serve in Parliament at such election, and all persons nominated as candidates at such election, or who shall have declared themselves candidates, on or after the issuing of the writ for such election, or after the dissolution or vacancy in consequence of which such writ shall have been issued."

68.  The provision against treating read:

"… Every candidate at an election who shall corruptly, by himself or with any person, … at any time either before, during, or after any election, directly or indirectly give or provide, … any meat, drink, entertainment, or provision, to or for any person, in order to be elected, or for being elected, or for the purpose of corruptly influencing such person, or any other person, to give or refrain from giving his vote at such election, or on account of such person having voted or refrained from voting, or being about to vote or refrain from voting, at such elections, shall be deemed guilty of the offence of treating, …"  [s 3] of the Corrupt Practices Prevention Act, 17 & 18 Vict. C. 102.

69.  In such contest, Monahan CJ said:

"… If a party do the acts before the dissolution, intending to become a candidate, but does not, in fact, after the dissolution, become a candidate, and is not elected, he cannot be guilty of the statutable offence of treating.  But the Respondent having been elected, is, in our opinion, guilty of the offence, though committed before the dissolution. …"

70.  With respect, I agree with the decision in Youghal.

71.  In Hong Kong, such activities are covered by ECICO.  For example, s 12(1) outlaws "providing, food, drink or entertainment for another person for the purpose of inducing the other person … to vote at the election for a particular candidate or particular candidates".

72.  I have no doubt that such offences may be committed before an election period or before a public declaration of candidacy.  However, these offences require proof that the bribe or the treating was for the purpose of "inducing a person to vote at the election for a particular candidate".  These requirements are more specific than those required in the definition of election expenses.  I do not believe authorities relating to bribes or treating to be helpful in our consideration of election expenses.

73.  I have endeavoured to explain above why for expenses to be so regarded, they have to be "closely related to the machinery of an election".  And why it is undesirable to adopt an uncertain notion of an election being imminent, a notion on which different persons may come to reasonable but different conclusions.

The Irregularity Argument

74.  Mr Lee's basic argument is that the broadcast of the videos violated Schedule 4 at paragraph 12 of the BO which provided:

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

75.  Mr Lee emphasised that that advertisement on television has been described as "the most influential advertising option" (Regina (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312.

76.  Mr Lee devoted much of his submissions on his point that the videos could be regarded as advertisement of a political nature. He relied on what the majority in the High Court of Australia in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, at 124 (Mason CJ, Toohey and Gaudron JJ) said:

"And, if an actor were seeking election, or even appointment, to a public office, discussion not only of his or her policies but also of his or her conduct, though not of his or her acting ability, would constitute political discussion if that conduct were relevant to fitness for public office.

For present purposes, it is sufficient to say that 'political discussion' includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices ...."

77.  Mr Lee submitted that the judge was wrong in not holding that the Videos were of a "political nature", because the Videos were intended by Dr Tam to promote and did promote a favourable image of himself and enhance his popularity in the IT community which comprised all his voters, and emphasised his "fitness for public office" as a legislator for the IT Functional Constituency.

78.  In Mr Lee's written submissions, he submitted:

"14.   The Judge failed to have any or any sufficient regard to the following material facts, which are not in dispute:

(1)     R1 had contested the same IT Functional Constituency seat in the September 2004 LegCo elections, and lost only by about 10% of all the votes cast (Amended Petition §2 and Judgment §47);

(2)     R1 'was known at the time' to be 'seriously contemplating running for LegCo' (Judgment §§40 and 37);

(3)     According to R1, the 'purpose of making the [Videos] had always been to raise the profile of the I.T. Industry amongst the youth through providing the general public with insight into the lifestyle and interesting facts about the I.T. Industry, with view to promoting and improving the industry as a whole';

(4)     Further, according to him, the Videos were an attempt on his part to ' salvage and improve the image of the I.T. Industry' after the 'Edison Chen' incident;

(5)     There were a total of 600 spots of the Videos broadcast by the Cable TV during the period of 31 days from 30 May 2008 to 30 June 2008;

(6)     All the votes were in the I.T. Industry; and

(7)     The primary facts (§8 above)."

79.  Mr Lee's submission has wide and dangerous implications.  If he is right, it maybe that a broadcasting media may not permit a politician to air his/her view.  It is to be noted that the prohibition in the BO is not confined to the election period.  Indeed, as Chapter 11 of the Guideline shows provided equal time is given, during the election period, candidates may be invited to appear on televisions.  And they do. 

80.  Advertisement is not defined in BO.  Naturally, most advertisement are paid advertisements but if "advertisement" were to be construed as widely as Mr Lee wished to construe the word "political", unpaid advertisement might also be covered.  Moreover, "payment" could take many forms, a politician who agreed to present a programme otherwise than for a market price could be said to have "paid" for advertisement.

81.  I would also note that Theophanous, where the observations quoted in para 76 were made, was concerned with an action on defamation and the defence relied on was the freedom under the Australian Commonwealth Constitution to publish material:

"(a)    discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament."

82.  It does not follow that "advertisement of a political nature" in BO requires so wide a construction.

83.  The learned judge said:

"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 advertisements with the same host were about the lifestyle of IT personnel. A flipcard showed the profile of the host [Dr. Tam] was found and credits giving acknowledgment to various organizations and companies were displayed at  the end of each version. There was no reference to any political party or election matter; (ii) the advertisements concerned were not considered as election advertisements; and (iii) the advertisements adopted a programme style which was certainly not clearly identifiable as advertisements.

The BA considered that an advertisement would constitute "an advertisement of a political nature" if it sought to further the interests of a particular political party or person.

The BA considered that although it was obvious that the advertisements were intended to enhance the popularity of the host in question and build up his strong connection with the IT field, they were not "advertisements of a political nature" as (1) they did not contain materials which promoted the interests of any political grouping or person; and (2) they were not election related. The advertisements were not in breach of section 12 of Schedule 4 to the BO which prohibited the inclusion of advertisements of a political nature in domestic pay television programme services.

Nevertheless, the BA considered that the advertisements adopted a programme style which was not clearly identifiable as advertisement and had not been flagged as such. The advertisements were in breach of paragraphs 4 and 5 of Chapter 3 of the Generic Code of Practice on Television Advertising Standards ("TV Advertising Code") which stipulated that advertising material should be clearly identifiable and that advertisement adopting a programme style had to be flagged in a clearly legible manner.

Hong Kong Cable Television Limited was given an advice to observe closely the relevant provision in the TV Advertising Code.'

33.    I agree with the BA's reasoning.

34.    The videos are undoubtedly advertisement. But of what?"

84.  However, because Dr Tam had not yet officially declared himself, and that it was conceivable that he might have decided not to run and on scrutiny of the videos themselves, Reyes J said:

"40.   ... apart from the fact that Dr. Tam was known at the time to be thinking of running for LegCo, there is anything in the videos which overtly furthers a 'political' agenda."

85.  Reyes J went on to say:

"42.   A working (but by no means comprehensive) test of what constitutes a 'political' advertisement might be 'something that expressly or impliedly encourages the public to vote a person or group into public office on the strength of their credentials; or what they promise to do once in office; or the unsuitability of some other person or group aspiring to or already in public office'.

43.    I do not find such overt elements in the videos.

44.    The videos do not mention a group or party as suitable for any particular public office.

45.    The videos do focus on the personality of Dr. Tam. But they do not say anything about what he proposes to do if elected or why it would be a good idea for him to represent the IT industry in public office. Nor do they criticise the LegCo incumbent or potential rivals of Dr. Tam.

46.    The videos undeniably promote a favourable image of Dr. Tam. But, like the BA, I do not think that such, without more, is enough to make the videos 'political'.

47.    Dr. Tam previously ran for LegCo. He was unsuccessful. In my view, it would be applying too extreme a definition of 'political' to say that, due to his previous abortive or possible future candidature, anything that Dr. Tam does before an Election Period to promote himself as an IT person should be regarded as 'political' in nature."

86.  He then concluded at para 51 that he did not think that the broadcasting of the videos before the Election Period were political broadcasts which gave Dr. Tam an unfair advantage over Mr. Mok.

87.  The views of the Broadcasting Authority and the learned judge must command my respect.  But I do not believe I need to come to a concluded view on the matter.  I prefer to consider, whether, even on the assumption that the broadcasts could be regarded as advertisement of a political nature, they amounted to an irregularity within the meaning of section 61 of LCO. 

88.  Section 61(1)(a)(iv) of LCO enabled an election petition to be made on the ground of –

"(iv)  material irregularity occurred in relation to the election, or to the polling or counting of votes at the election;"

89.  Section 3 of LCO defined "election" as "an election to elect a Member at a general election …".  However, election is given an extended meaning in section 61, it is defined to include "nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer".  Thus, an irregularity at the nomination proceedings is covered by section 61(1)(a)(iv).

90.  I do not believe the broadcast of the videos, even if it could be regarded as an irregularity was one which "occurred in relation to the election".  I believe the expression "in relation to the election" only covers matters or procedure which are closely related to the machinery of the election.

Videos uploaded

91.  For a fee of $20,000, the videos were uploaded and maintained on Dr Tam's websites.

92.  The learned judge found in para 79 that:

"79.   The $20,000 licence fee covered the use of the videos in Dr. Tam's web sites before and during the Election Period. On that basis, Mr. Fung argues (and I agree) that the correct amount to be accounted in relation to the Election Period must at most be $20,000. That is the effective cost of carrying the videos as an election advertisement on Dr. Tam's websites during the Election Period."

93.  This is a finding of fact.  One which Reyes J was entitled to make.

Costs of the videos

94.  I return to Mr Lee's argument that the costs of the videos were at $1.89 million, because the 88% discount should be disregarded.

95.  The learned judge said in para 69 of the judgment:

"69. But it seems to me on the evidence that $220,000 was the result of protracted arm's length bargaining between TechMatrix and Cable TV. There is no evidence that the 88% discount was some sort of special deal not available to any member of the general public after bargaining."

96.  Mr Lee complained that there was no evidence that there had been any bargaining protracted or otherwise.

97.  Mr Lam Wing Kwan Ringo made an affirmation in support of Dr Tam. There he went into great lengths over the evolution of the videos. In para 26, he said when discussing different formats to be adopted for the video:

"26    … This option was also dropped because this format would involve shooting in multiple locations, and a lot of post production editing, which Cable TV was not able to provide within the price range that we were negotiating within. The third option was to hire a female host or model who would act as an interviewer, and would ask the guest in each episode certain LT. questions. The guest would be an LT. professional. This option was also dropped because of price range within which Cable TV and I were negotiating within cannot include provision of talents." (Emphasis added)

98.  Then in para 27 he said that:

"27    ... In the light of the circumstances and constraints at that time, this fourth option was adopted. ..."

99.  Mr Lee did not cross-examine Mr Lam.  Mr Lee said that is because the burden of proof was on the Dr Tam to show that the discount was "generally available to all customers".   Para 16.20 of the Guidelines. 

100.  Mr Lee seemed to suggest that para 16.20 must be taken literally.  In other words, it was not sufficient that the discount was given at arms' length but it must be proved that it was "generally available to all customers".  He further submitted that the burden is on Dr Tam to show that it was so.  I do not accept that on an election petition, the burden of proof is on a respondent.  But it is not necessary for me to decide this point.  I am satisfied that the learned judge's conclusion cannot be faulted.  

101.  Furthermore, what we are concerned with is the fee ($20,000) which Dr Tam had to pay for using the programme on his site. We have no reason to proceed on the basis that $20,000 was not a reasonable amount.

To declare Mr Mok, the winner

102.  Lastly, Mr Lee submitted that if we grant the petition we should declare Mr Mok the winner.  This is academic, but, in any event, I would not do so.  Section 72(2) provided that:

"If, on the hearing of an election petition, the Court determines that a person was duly elected as a Member in place of a person that the Court has determined not to have been duly elected at the election, the first-mentioned person becomes a Member from the date of determination."

103.  We can make no such determination.  This is not a case where, for example, that there had been some error in the counting of votes, and that on the correct counting, a particular candidate could be shown to have been duly elected.

Disposition

104.  For the above reasons, I would dismiss the appeal and make an order nisi that Dr Tam is to have the cost of appeal, such cost to be taxed unless agreed.

Hon Stock VP:

105.  It seems to me, especially when one examines the testimony of the respondent to the Petition, that he has not been open about his objective in producing and broadcasting the eight videos between end of May and end June 2008.  His contention in the course of his evidence, and in the affidavit which he placed before the court below, was that the videos were produced in order to promote the interests of the IT industry.  A study of the videos shows that not to be the case, in the sense of that as the prime objective.  Their prime purpose, as the judge found, was to promote Dr Tam and, in my judgment, to promote his credentials for the functional constituency for which he was minded to stand.  He also said, in his oral testimony, that he was not sure that the title of the episodes (IT Guru) referred to him and that it never occurred to him whether the eight episodes “would have good or bad influence to my candidacy.”  Those suggestions do not sit well with the content of the videos, and the timing of their broadcast.  It appears obvious that the production of the videos and the broadcast of them was designed by Dr Tam to enhance his standing with potential voters in the functional constituency and one is naturally tempted to the conclusion that any expenditure incurred to that end was an election expense.

106.  As against that temptation, which might be said to be a commonsense approach on the facts, lie the cogent factors pressed by the Chief Judge, which suppose, correctly in my respectful view, that the legislature intended as much certainty as was reasonably practicable in the application of the rules for elections prescribed by the Election (Corrupt and Illegal Conduct) Ordinance (ECICO), Cap. 554.

107.  Whether at any given stage or in any given circumstance the conduct of an individual becomes conduct prohibited by the ECICO is inevitably a question of the proper statutory construction of the provision which is said to bite and of the facts of the case.

108.  The objects of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 are:

“(a) to ensure that, as far as practicable, elections to elect … persons to membership of the Legislative Council… are conducted fairly, openly and honestly and are free from corrupt and illegal conduct; and

(b) to regulate electoral advertising so as to ensure, as far as practicable, the fairness and honesty of electoral advertising; and

(c) to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed prescribed levels of expenditure.” (Section 3)

109.  The Ordinance applies “to all conduct concerning an election, whether the conduct is engaged within Hong Kong or elsewhere.” (Section 5).

110.  The Ordinance is designed to promote the integrity of the electoral process and a purposive construction of it is one which has at its forefront the imperatives of transparency, fairness, and a level playing field.  It is no doubt with those imperatives in mind that the Ordinance places a limit upon the amount of election expenses that may be incurred by a candidate and requires full and frank disclosure in election returns.

111.  Much concentration has understandably been devoted in this case to the definition of ‘election expenses’ by section 2 ECICO, namely:

“ … expenses incurred….. before during or after the election period by… a candidate for the purpose of-

(a)  promoting the election of the candidate… .”

112.  Without going further than the face of that provision, one might readily conclude that, since the purpose of the broadcasts in May and June 2008 was to promote Dr Tam in the eyes of a constituency in the hope of garnering votes, the expenses incurred in their production fell for disclosure and accounting once he became a candidate.

113.  But section 2 does not stand on its own.  The key provision in the case is section 24, for it is section 24(1) that Dr Tam is said to have transgressed:

“(1) A candidate engages in 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 … .” (emphasis added)

114.  The question, therefore, is whether the conduct in question, namely, the incurring of expenses in the production of the broadcasts, was conduct at or in connection with the election to be held in September 2008, notice of which election was given on 20 June 2008, and the nomination day for which was 19 July 2008 which, by definition, was also the date upon which the election period commenced.  The question posed demands a construction of the statutory provision, a construction which must be purposive.

115.  It is evident from the terms of the section 2 definition of “election expenses” that expenses incurred before the election period, the fruits of which are used during the election period, may nonetheless constitute election expenses.  See also The Borough of Oxford (1924) 7 O’M & G 49 at 57.

116.  What of the expenses of a promotion exercise carried out before announcement of candidature and before the election period?

117.  On the one hand, it might be said that the imperative of a level playing field dictates that it would be entirely unfair for a man of substantial means, say, to be permitted to spend significant sums prior to the election period and without announcing his candidature, even though he intended to stand for election, on promotional material used only before the election in such a way as may well influence prospective voters, to the disadvantage of a prospective candidate of lesser means.

118.  On the other hand, the legislature must have intended a sensible degree of certainty in the application of the rules.  The reality that emerges from experience tells us that between elections, politicians, whether sitting members of a legislature or hopefuls with an eye to the next election, engage – to one degree or another – in electioneering in its broad sense; in other words, in promoting themselves – overtly or by implication – as suited, by reason of their experience, personality or agendas (or a combination of all three) for election to that legislature.  It follows that if one deems the phrase “at or in connection with an election” to embrace no more than self-promotion with an eye to election, the consequence becomes significantly unpredictable; and, in my opinion, a significant lack of predictability must be assumed to have been outwith the intention of the legislature.

119.  I would not myself pray the Guidelines in support of this conclusion.  Guidelines may be incomplete.  Guidelines can change but the interpretation of the section’s import must remain constant, whatever the complexion of the Guidelines at any given time.

120.  It seems to me that in the context of Hong Kong elections, in relation to a person who ultimately becomes a candidate, the section bites in respect of promotional conduct once that person declares his candidacy, notwithstanding that the election period has not commenced and, further, that it bites once the election period has commenced even if that person has not at that date declared his candidacy.

121.  Accordingly, I would hold that the respondent did not fall foul of the provisions of s. 24.

122.  Whether the promotional activity constituted a political advertisement is doubtful.  I do not dissent from the judge’s conclusion in this regard nor from his attribution of expenses for the cost of placing the material in question on-line.

123.  Accordingly, I too would dismiss the appeal and make the order as to costs proposed by the Chief Judge.

124.  In relation to the suggestion by my Lord Cheung JA, as to the proper disposition of the case in the event that a breach of section 24 were proved, I would respectfully suggest that it would nonetheless not be open in the circumstances of this case, for this Court to declare under s. 67(2) of the Legislative Council Ordinance that the petitioner was duly elected instead of the respondent.  It seems to me, on a natural reading of that provision, that it is directed to cases in which a material irregularity has occurred in the election process, such as polling, irregular votes, or counting, such that it is demonstrated that, but for the irregularity, a person other than he or she whose election is questioned was in fact chosen.  

Hon Cheung JA:

Overview

125.  The eight videos were not election advertisements within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (‘E(CIC)O’) by reason of the fact that Dr. Tam was not yet a candidate within the statutory definition of a candidate under that ordinance when the videos were first aired.  At that time he did not ‘stand nominated as a candidate’ and he had not publicly declared an intention to stand as a candidate.

126.  However, in my view, the $220,000 production expenses for the eight videos were election expenses and Dr. Tam had engaged in ‘illegal conduct’ within the meaning of section 61(1)(a)(ii) of the Legislative Council Ordinance (‘LCO’) as defined by section 2 of the E(CIC)O in that he had, in breach of section 24 of E(CIC)O, incurred election expenses in excess of the prescribed maximum amount.

Content of the videos

127.  The inquiry must begin by ascertaining the nature and purpose of the eight videos.  The Judge summarised the contents of the videos are as follows : 

‘ 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)?

128.  As found by the Judge, each of the video also contained a profile of Dr. Tam as follows :

‘ 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 Judge’s view

129.  The Judge then held that :

‘ 35. Dr. Tam says that the videos were designed to spotlight the IT industry. That may be the case. However, one has only to read the profile of Dr. Tam broadcast in each programme to appreciate that the videos would also have (and must have been intended to have) the effect of advertising Dr. Tam to the IT community.’

130.  The Judge in discussing the question of the prohibition of a licensee from broadcasting political advertisement under the Broadcasting Ordinance (Cap. 562), held that :

‘ 36. Nonetheless, such element of self-promotion would not to my mind be enough to turn the videos into “political” advertisements.

37.   It is true that at the time of the videos’ broadcast the LegCo Election was known by the public to be imminent.  It is also true that Dr. Tam was seriously contemplating running for LegCo.  He said as much in a number of interviews.

38.   But Dr. Tam had not yet officially declared himself.  It was conceivable that at the last minute before the Election Period he could have decided not to run.  Thus, at least as a matter of first impression, Dr. Tam could not have been promoting himself as a political candidate in the videos.’

131.  The Judge then considered the other factors which he said were against the contention that the videos were political, such as they did not say anything about what Dr. Tam proposed to do if elected or why it would be a good idea for him to represent the IT industry in public office.  Nor did they criticize the incumbent at the Legislative Council or potential rivals of Dr. Tam. The Judge also considered that the videos were far too frivolous and simplistic to have had a political purpose.  At best the videos raised the profile and eccentricities of IT people in the public mind.

132.  However, the Judge went on to hold that once Dr. Tam declared himself as a candidate the videos became election advertisements promoting him as a suitable candidate for the IT sector.

The videos as promotional material

133.  In my view the Judge has taken too narrow a view that prior to Dr. Tam publicly declaring himself to be a candidate, the videos were not to be treated as promotional material for him in the Legislative Council Election.  A broader view must be considered, in particular having regard to the following :

(1)     Dr. Tam was one of the candidates in the 2004 Legislative Council Election for the IT constituency.  He lost the election.

(2)     The next election was to be held on 7 September 2008.  Dr. Tam announced his candidacy on 13 July 2008 which was about two months before the election.  The broadcast of the videos began on 30 May 2008 which was about one and a half months before his public announcement.

(3)     Prior to the broadcast of the videos, Dr. Tam had formed an organization called the ‘Coalition for Defending the Status of Technology’ which published manifestoes in three major local newspapers.  A foundation called ‘Tech Matrix’ was later set up with Dr. Tam as its chairman, convener and spokesperson. This foundation was responsible for the payment of the production costs of the videos.  Dr. Tam donated $900,000 to the foundation.

(4)     On 8 and 9 April 2008 respectively, Dr. Tam informed two local newspapers that he was actively preparing to stand for election again.  On 28 May 2008 two local newspapers reported on the inauguration of the foundation and statement by Dr. Tam that he would actively consider running for the Legislative Council Election.

(5)     After Dr. Tam’s announcement, there was active campaigning by him.  His campaign website broadcasted the videos from 19 July 2008.  The videos had been uploaded on 20 June 2008 to Youtube under Dr. Tam’s account and also uploaded to Dr. Tam’s personal website.

134.  I have no reservation whatsoever that considering the timing and context of the broadcast, the videos were prepared and aired for the primary purpose of promoting Dr. Tam as a candidate in the 2008 election even before he had formally declared his decision to run as a candidate.  In my view the discussion has been sidetracked by the issue of ‘political advertisement’ under the Broadcasting Ordinance.  Irrespective whether the videos fall within the statutory ambit of a political advertisement or not, the clear fact that emerged from the evidence is that the videos served to promote the election of Dr. Tam in the forthcoming election.

Election expenses

135.  The next crucial question is whether the production expenses of $220,000 for the videos come within the statutory definition of ‘election expenses’.  In my view, they were election expenses.

136.  Unlike the definition of ‘election advertisement’, ‘election expenses’ referred to expenses incurred before, during or after the election period. Under section 2 of E(CIC)O,

‘ “election expenses” (選舉開支), in relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of—

(a)     promoting the election of the candidate or group; or

(b)     prejudicing the election of another candidate or group,

and includes the value of election donations consisting of goods and services used for that purpose;’

(emphasis added)

The ‘election period’ is defined as the period beginning with the nomination day for the election and ending with the polling day for the election. 

137.  There is no doubt that Dr. Tam eventually became a candidate for the election and won the election and based on the authorities he had incurred election expenses before the election.

Authorities

138.  In Youghal Election Petition (1869) IR 3 CL 530, the relevant legislation in Ireland i.e. Parliamentary Elections Act (1868) defined ‘candidate at an election’ as including all persons elected to serve in Parliament at such election; and all persons nominated as candidates at such election, or who shall have declared themselves candidates on or after the day of the issuing of the writ for such election, or after the dissolution or vacancy in consequence of which such writ shall have issued.

139.  Section 4 of the Corrupt Practices Act provided that every candidate at an election who corruptly, either before, during, or after any election, did the acts mentioned in the section, shall be deemed guilty of the offence of treating.  The prohibited acts included providing any expenses incurred for any meat, drink, entertainment, or provision, to or for any person, in order to be elected, or for being elected.

140.  Monahan CJ held that,

‘ … any person who shall be elected, or who shall be nominated, or who shall have declared himself a candidate, after the issuing of the writ or dissolution, and who shall at any time, though before the dissolution, have done the acts mentioned in the section, is guilty of the offence of treating. If a party do the acts before the dissolution, intending to become a candidate, but does not, in fact, after the dissolution, become a candidate, and is not elected, he cannot be guilty of the statutable offence of treating. But the Respondent having been elected, is, in our opinion, guilty of the offence, though committed before the dissolution.’

141.  The authority for this view can be traced to Dorsetshire, Eastern Division, Case (1910) 6 O’M & H 22 at 40 per Lawrance J.

142.  Fiona Jones and Another [1999] 2 Cr. App R 253 is a modern authority on the meaning of election expenses.  Section 76 of the Representation of the People Act 1983 provided that,

‘ Limitation of election expenses

(1)   No sum shall be paid and no expense shall be incurred by a candidate at an election or his election agent, whether before, during or after an election, on account of or in respect of the conduct or management of the election, in excess of the maximum amount specified in this section…’

143.  Section 118 of the same Act defined ‘election expenses’ as meaning

‘ expenses incurred, whether before, during or after the election, on account of or in respect of the conduct or management of the election.’

144.  Lord Bingham CJ at 256 stated that :

‘ The expressions now found in sections 76 and 118 have been in force, in different Acts, since 1883. They have been considered by the courts in a number of cases, most of them somewhat elderly. From these cases, certain principles relevant to these appeals can be drawn. Parliament has not, deliberately, chosen to enact that an election shall begin, or that election expenses shall begin to be incurred, at any specified time. It has instead defined election expenses by reference to the purpose for which the expenses in question are incurred, that is whether before, during or after the election, on account of or in respect of the conduct or management of the election (section 76(1); section 118). Election expenses are not incurred where a constituency party carries on its ordinary political activity otherwise than with reference to a specific election which is reasonably imminent, even though such activity has the ultimate aim of winning public support and gaining or retaining power in the constituency; nor are they incurred by a candidate who nurses a constituency. An election expense means expenses incurred, by or on behalf of a particular candidate, closely related to the machinery of the election, for the prime or principal purpose of promoting the interests of that candidate.’ (emphasis added)

145.  Halsbury’s Laws of England, Vol 15 (4^th Ed, Reissue), Para 628 contained a useful summary of the English approach :

‘ 628. Effect in relation to expenses of definition of ‘candidate’. In spite of the statutory reference to election expenses being incurred before, during or after an election, it has been argued that no election expenses can be incurred at a parliamentary election before the issue of the writ for the election or the dissolution or vacancy in consequence of which the writ was issued, because before then there can be no candidate within the statutory definition. This argument has been rejected. It has been pointed out that in some cases canvassers are set to work and committees are formed long before the dissolution or the issue of the writ; and that, if expenses are not to be returned as election expenses, the words of the statute as to the maximum amount of expenditure are set at naught. The grounds on which the judges have reached this conclusion are not always clear. Some judges appear to have reached this conclusion on the ground that the word ‘candidate’ should be construed not in accordance with its statutory definition but as having a more extended meanings. The other view, which seems preferable, is that the reference to a candidate excludes persons who do not come within the statutory definition, but is not a limitation in time so as to exclude payments made before a person comes within that definition.’ (emphasis added)

Illegal Conduct

146.  Section 24 of E(CIC)O is as follows :

‘ (1) A candidate engages in 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 for a candidate by regulations in force under section 45.’

147.  The E(CIC)O is also targeted at expenses incurred for the purpose of, among other things, ‘promoting the election of the candidate’.  Hence the English cases clearly are of assistance in construing the meaning of our legislation.  The difference between, on the one hand, ‘election’ in the English legislation and, on the other hand, ‘election period’ in our legislation does not make any real difference in interpretation.

148.  While the English legislation referred to the ‘conduct or management of the election’ it is clear from the decisions that those words had been interpreted to cover the ‘prime or principal purpose of promoting the interests of that candidate’.  This requirement has been satisfied in the present case.

149.  What is effectively being argued on behalf of Dr. Tam is that before the nomination day (i.e. when the election period began) he could not be a candidate and thus no election expenses were incurred by him.  This was precisely the same argument that was rejected by the Courts.  The statutory definition of a candidate is not a limitation in time so as to exclude payments made before a person comes within that definition.  Applying the same method of construction as in the English cases, since Dr. Tam did become a candidate and won the election, the expenses that were incurred before the election period for the production of the eight videos whose purpose was to promote him in the imminent election were caught by section 24.  They came within the statutory definition of ‘election expenses incurred at or in connection with the election’.  What is contained in paragraph 16.2 of the Guidelines cannot be a substitute for the true legal position.  It cannot override a legislation passed after consultation and scrutiny.

Issue of certainty

150.  The office of a member of the Legislative Council is for a fixed period of four years.  That means elections are held every four years.  The election has been held in September.  The Chief Executive will, of course, have to decide on the exact date of election by an election notice.  After the election notice has been given, there is the nomination period.  Under section 7(3) of the Electoral Affairs Commission (Electoral Procedural) (Legislative Council) Regulation (Cap. 541 Sub Leg. D), the nomination period must end not less than 28 days and not more than 42 days before the date on which the election is to be held.  This means someone who wishes to stand as a candidate will know with some degree of certainty the relevant milestone dates for the election.

151.  The promotion by a candidate for the election would naturally be near the election period.  Take the present case as an example, the 2008 Legislative Council election was held on 7 September 2008, the notice of election was issued on 20 June 2008 and the video were broadcasted about three months before the election on 30 May 2008.

152.  Inevitably when the legislation uses terms such as ‘before, during or after’, the whole of the circumstances must be looked at in deciding whether the expenses are within the ambit of the legislation.  A measure of common sense has to be applied.  Should the authorities decide that for the sake of administrative convenience, some specific cut off dates are to be adopted, then it is for them to use clear language or introduce measures to carry out that intention.  As it is, the issue of uncertainty simply does not arise.

Breach

153.  Once the $220,000 was caught by definition of election expenses, then it must be this sum and not merely the $20,000 licence fee paid for the copyright of the videos that constituted Dr. Tam’s election expenses. 

154.  If $220,000 was to be included as election expenses then Dr. Tam must be in breach of section 24 of E(CIC)O because Dr. Tam’s aggregate election expenses exceeded the prescribed maximum election expenses which in term would constitute illegal conduct under section 61(1)(a)(ii) of the LCO.  There is no respondent’s notice for relief under section 40 of E(CIC)O.

Not necessary to consider issue of material irregularity

155.  Having reached this conclusion it is not necessary to consider whether the action by Dr. Tam in causing the videos to be displayed on pay television, constituted material irregularity in relation to the election within the meaning of section 61(1)(a)(iv) of LCO.

Declaration

156.  In my view the petitioner Mr. Mok has made out a case that Dr. Tam had engaged in illegal conduct and that he was not duly elected.  I would allow the appeal with costs nisi to Mr. Mok.

No need for by-election

157.  The present petition was lodged pursuant to section 61(1)(a) of the LCO which provides that,

‘ (1) An election to return a Member may be questioned only on the following grounds-

(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541) to have been elected as a Member at the election was not duly elected because-

(i)  the person was ineligible to be, or was disqualified from being, a candidate at the election; or

(ii)  corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or (Amended 10 of 2000 s. 47)

(iii)  corrupt or illegal conduct was generally prevalent at or in connection with the election; or (Amended 10 of 2000 s. 47)

(iv)  material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or’

158.  Section 67(2) of the LCO further provides that,

‘ (2) At the end of the trial of an election petition in relation to an election that was contested, the Court must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.’

159.  In my view section 67(2) requires this Court (which, in the light of decision of the Court of Final Appeal in FACV 8/2010, must include this Court) to determine, in the event that it has determined Dr. Tam not duly elected, whether someone else was elected.  In my view, in the light of section 61(1)(a) of the LCO the determination whether someone else was elected is not confined to election material irregularity but to all the four situations provided in section 61(1)(a).

160.  There were only two candidates in the IT constituency.  If Dr. Tam is disqualified then Mr. Mok who received 1,982 votes and lost only by 35 votes to Dr. Tam must be entitled to be declared to be duly elected at the election.  I have no difficulties in reaching this decision.  This is not a case where, for example, there are two remaining candidates after a third one is declared not duly elected and these two had each received the same number of votes.  In such a case the Court cannot determine who should be properly elected instead.  A by-election is only to be called for under section 36(1)(d) of LCO if the Court determines that no other person was duly elected instead.

Hon Tang Ag CJHC:

161.  By a majority, the appeal is dismissed with a cost order nisi in favour of the 1^st Respondent.

CACV 115/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 115 OF 2009

(ON APPEAL FROM HCAL NO. 141 OF 2008)

----------------------

----------------------

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)

____________

____________

_________________________________

REASONS FOR JUDGMENT

_________________________________

Hon Tang VP:

1.  The result for the election for the Information Technology (IT) Functional Constituency in the 2008 Legislative Council election was declared on 8 September 2008. The 1^st respondent was declared the winner, having received 2,017 votes, while the petitioner had received 1,982. By an election petition dated 10 November 2008 and subsequently amended on 8 December 2008, the petitioner requested the court to determine, inter alia,

“(1)  whether (the 1^strespondent) declared by the Returning Officer for the above-mentioned Constituency to be elected in the notice of result of the election was duly elected;”

2.  The election petition was presented to the Court of First Instance pursuant to section 64 of the Legislative Council Ordinance, Cap. 542 (“the LegCo Ordinance”):

3.  Section 64 provides:

“64.  Court to have jurisdiction to determine election petitions

(1)  The Court has the same jurisdiction and the same functions in respect of an election petition as it has in respect of an ordinary cause of action within its jurisdiction.

(2)  An election petition is triable in open court and, unless the Chief Justice otherwise directs, before one judge.

(3)  The Chief Justice may make rules providing for giving effect to this Part and for regulating matters relating to the preparation, lodgement, service, trial and withdrawal of election petitions and costs in respect of those petitions (including the giving of security for costs), and the practice and procedure concerning the trial of those petitions.”

4.  After hearing, Reyes J ordered that the amended election petition be dismissed and declared that the 1^st respondent was validly elected to represent the IT Functional Constituency.

5.  Reyes J’s determination of the election petition is final as to the matters at issue concerning the election petition. Section 67(3) of the LegCo Ordinance.

6.  Section 14(3) of the High Court Ordinance, Cap. 4 provides:

“(3)  No appeal shall lie-

(c)  from a judgment or order of the Court of First Instance, where it is provided by any Ordinance or by rules of court that the same is to be final;”

7.  At issue before the court is whether, notwithstanding section 67(3) and section 14(3)(c) of the High Court Ordinance, the petitioner may nevertheless appeal to this court.

8.  Mr Martin Lee, SC, for the petitioner, submitted that the decision of the Court of Final Appeal in Solicitor v Law Society of Hong Kong and Secretary for Justice (Intervener) [2003] 6 HKCFAR 570 is authority that insofar as section 67(3) provides that the determination at first instance shall be final, it is repugnant to Article 82 of the Basic Law.

9.  Article 82 provides that:

“The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region, …”

10.  Law Society of Hong Kong arose out of certain disciplinary proceedings before the Solicitors Disciplinary Tribunal established under the Legal Practitioners Ordinance, Cap. 159 (“LPO”) which ordered the appellant to be fined and censured. Under section 13, a person subject to the tribunal’s order has a right of appeal, however,

“… the decision of the Court of Appeal on any such appeal shall be final.”

11.  There, the issue relevant to this appeal is whether the provision in section 13(1) that the decision of Court of Appeal on an appeal against an order of the Tribunal shall be final has any legal effect. The Court of Final Appeal held that it had no effect because it had unduly limited the power of final adjudication vested in the Court of Final Appeal.

12.  However, the Chief Justice (with the concurrence of the other members of the Court) acknowledged that limitation may properly be placed on the right of appeal to the Court of Final Appeal:

“31.  … But limitation cannot be imposed arbitrarily by the legislature.  The limitation imposed must pursue a legitimate purpose and there must be reasonable proportionality between the limitation and the purpose sought to be achieved.  These dual requirements will be referred to collectively as ‘the proportionality test’.”

13.  The Chief Justice went on to say:

“32. In the exercise of their independent judicial power, it is the duty of the courts to review any legislation enacted which seeks to impose any limitation on the power of final adjudication vested in the Court by art. 82 and to consider whether the limitation satisfies the proportionality test.  If the courts decide that it does not satisfy this test, the limitation must be held to be unconstitutional and hence invalid.  The limitation imposed would have exceeded the parameters of proper limitation of the Court’s power of final adjudication vested by art. 82.

33.  In applying the proportionality test to a particular limitation, the purpose of the limitation must first be ascertained.  In ascertaining its purpose, matters such as the subject matter of the dispute, whether it concerns fact or law, whether it relates to substantive rights and obligations or only procedural matters, what is at stake, the need for speedy resolution and the cost implications of dispute resolution, including any possible appeals, will have to be considered.  The legitimacy of any proposal will depend on whether it is consistent with the public interest, which of course has many facets, including the proper administration of justice.  Then, in considering whether the limitation is reasonably proportionate to the legitimate purpose, it will be necessary to examine the nature and extent of the limitation.

34.  Whether a particular limitation imposed by statute satisfies the proportionality test will depend on an examination of all the circumstances.  There may be instances where a statutory limitation providing that a decision of the Court of Appeal or the Court of First Instance on appeal, whether from a statutory tribunal or a lower court, shall be final may be able to satisfy that test.”

14.  Mr Lee has referred us to the Chief Executive Election Ordinance, Cap. 569 which also provides for an election petition to be tried in the Court of First Instance in exactly the same way but section 22(1)(c)(i) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 enables leave to appeal to the Court of Final Appeal from such determination to be granted by the Court of Final Appeal.

15.  I note that in the case of an election of a Chief Executive, there is no right to appeal to this Court. Mr Martin Lee did not contend that, there, the absence of an appeal to this Court contravened Article 82.

16.  Even if Mr Lee is right that in the case of an election to the Legislative Council a prohibition against any appeal to the Court of Final Appeal is disproportionate and therefore inconsistent with Article 82, I do not believe it can be said that the absence of an intermediate appeal to this court can be said to contravene Article 82.

17.  That is all we have to decide, namely, whether section 67(3) contravenes Article 82 because as a result no appeal may be bought to us because of section 14(3)(c) of the High Court Ordinance. If I am right, it is unnecessary for us to decide whether the finality provided for under section 67(3) would also preclude an appeal to the Court of Final Appeal, and if so, whether that contravenes Article 82.

18.  As I have said Mr Lee did not contend that the absence of a right of appeal to this Court on an election petition concerning the election of the Chief Executive contravenes Article 82. He submitted, however, that the absence of an equivalent to section 22(1)(c)(i) of the Hong Kong Court of Final Appeal Ordinance has rendered section 67(3) and section 14(3) unconstitutional. I do not agree. If the Court of Final Appeal considers that Article 82 requires a possibility of appeal to the Court of Final Appeal, no doubt it will enable such an appeal to be made.

19.  Mr Lee submitted that the Chief Justice has said that:

“32.  … it is the duty of the courts to review any legislation enacted which seeks to impose any limitation on the power of final adjudication vested in the Court by art. 82 and to consider whether the limitation satisfies the proportionality test. …”

20.  This Court will do its duty. However, I believe, all that we are required to consider is whether the combined effect of section 67(3) and section 14(3) which prohibits appeal to this Court contravenes Article 82. This we can decide without deciding whether an appeal to Court of Final Appeal is possible.

21.  Mr Lee also relied on in para. 29 of the learned Chief Justice’s judgment, where he said:

“… The Court’s function as envisaged by the Basic Law is not merely to exercise an appellate power, but a final appellate power which, by its nature, is usually exercisable upon appeal from an intermediate appellate court, such as the Court of Appeal. …”

22.  Mr Lee argued that the deprivation of a right of an intermediate appeal is an infringement of Article 82 insofar as it impinges on the proper function of the Court of Final Appeal. I do not believe it will have that effect. In case I am wrong, I go on to consider whether in any event this is a disproportionate limitation.

23.  Mr Lee accepted the importance of a speedy and final resolution of any dispute over the validity of an election. However, he submitted that if the reasons given by the Court of First Instance for dismissing an election petition are unconvincing, and the legal system does not allow any appeal from that determination, the public may lose confidence in our judicial system. He also relied on what Dame Sian Elias J said in her dissenting judgment in Prem Singh v Krishna Prasad [2003] NZAR 385 at 401 that:

“Speed in electoral matters may be a very good thing but not if it comes at the expense of fundamental rights.”

24.  Mr Lee also mentioned that there is no specialised election court in Hong Kong, and election petitions are generally decided by only one judge. That is so but in a suitable case, the Chief Justice may cause an election petition to be heard by more than one judge. It is open to a party to make representations to the Chief Justice if it is of the view that the case is suitable to be heard by more than one judge.

25.  I turn to Prem Singh v Krishna Prasad. It was a decision of the Supreme Court of Fiji Islands, which was the highest court of Fiji Islands. There the court was concerned with the Fiji Islands Constitution Amendment Act 1997 which provided, by section 73(7), that a determination of the High Court, sitting as the court of disputed returns, is final. However, section 121(2) of the same Act provided that both the Court of Appeal and the Supreme Court has jurisdiction in relation to any appeal:

“1  … from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.”

26.  As Elias J recognised:

“… the matter remains one of interpretation.  The scope of s. 73(7) turns on its construction in context.”  Page 399.

27.  The majority (Sir Thomas Eichelbaum and Beaumont JJ) were of the view that a specific provision (such as section 73(7)) which prevented an appeal would prevail over a general appellate provision such as section 121(2). However they also commented on the judgment of Elias J and said:

“Having had the opportunity of reading the separate judgment of Elias J we wish to add this. Of course we share her view of the significance, in terms of human rights, of the right to vote. However, in enacting the 1997 Constitution, the Legislature both recognised those rights, and at the same time provided that the determination of the Court of Disputed Returns, when dealing with a question whether a person had been validly elected, was ‘final’. That was a well established expression meaning, as Parliament would have known, there was no right of appeal. Courts are obliged to give effect to the plain meaning of statutes and with respect we cannot see that Parliament's language left room for implying that in some cases, nevertheless an appeal would lie. Nor can we agree that in adopting a precedent established by Parliaments all round the world, the Legislature produced a result that was ‘manifestly absurd’ or ‘made no sense’”.

28.  Here, in deciding whether the limitation is disproportionate, I accept we should take into account the importance of the right to vote.

29.  I turn to consider whether the deprivation of a right to an intermediate appeal could be said to be disproportionate such that it is an arbitrary limitation on the right to appeal to the Court of Final Appeal.

30.  In Théberge v Laudry [1876] 2 AC 102, Lord Cairns, the Lord Chancellor, in delivering the advice of the Privy Council said at 106 that:

“… one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known.”

31.  As Lord Upjohn explained in delivering the advice of the Privy Council in Devan Nair v Yong Kuan Teik [1967] 2 AC 31, on appeal from Malaysia, the reason for the curtailment of the right of appeal to the Privy Council:

“… was, as the authorities show, the recognition of the necessity for a speedy determination of an election issue”.

32.  Furthermore, as Mr Blanchflower for the intervener has pointed out in his written submission, a Legislative Council’s term is 4 years (Article 69 Basic Law), and a by-election cannot be held within the last 4 months of Legislative Council’s current term. Section 36(2)(a). So there is only 3½ years for the determination of a petition. As Lord Hobhouse had pointed out in Kennedy v Purcell (1888), 59 TLR 279, the legal duration is a reason why it is important that:

“… no time should elapse before the constitution of the body is known …”

33.  Mr Lee has produced a schedule showing the possibility of an appeal in different parts of the common law world.

34.  In the United Kingdom, under the Representation of the People Act 1983, where an election petition would be heard by two judges on the rota for the trial of parliamentary election petitions from the judges of the King’s Bench Division. With special leave of the High Court, an appeal to the Court of Appeal was possible. The decision of the Court of Appeal is final.

35.  In Australia, for federal elections, there is no right of appeal although the election petition would be heard by a judge of the highest court (“the High Court”) or the High Court may refer it to a judge of the Federal Court. In many of the Australian states, an election petition would be heard by a first instance judge, with no right of appeal.

36.  Thus, no appeal or only one appeal is permitted in important parts of the common law world.

37.  Here, even if the absence of an appeal to this Court could be regarded as a limitation of the power of final adjudication of the Court of Final Appeal, it is not disproportionate. Speed and finality in the determination of a disputed election are important. There are also cost and resource implications. The possibility of multiple appeals (here we are concerned with an intermediate appeal) has costs implication, which may inhibit participation in elections.

38.  Mr Lee also submitted since the outcome of an election petition would not invalidate acts purporting to have been done by the person who was originally declared to have been elected: section 71 of the LegCo Ordinance, the consequence of delay is less serious. He stressed that the right to vote is a fundamental right. The right to vote is a right shared by all and it is not only the right to vote of those who voted for the “aggrieved” candidate which has to be considered. It is common sense that a continuing dispute may undermine the legitimacy of a member, and possibly the Legislative Council, particularly if there is a fine balance in the Legislative Council. Moreover, surely the right to vote must carry with it, the right to see that the candidate of one’s choice should be able to carry on his duties without a cloud of illegitimacy hanging over his head for an unduly long period. I cannot ignore the right to vote of those persons who voted for the candidate sought to be impugned.

39.  For the above reasons, I have dismissed the appeal.

Hon Yeung JA:

40.  I agree with the judgment of Tang VP and Lam J. I have nothing else to add.

Hon Lam J:

41.  I agree with the judgment of the Vice-President. In the application of the proportionality test, there does not appear to be much dispute that a legitimate purpose can be identified for the curtailment a general right of appeal in the context of election petition. The main issue is whether the limitation is reasonably proportionate.

42.  In the consideration of this issue, I see much room for contending that the court should accord deference to a balance struck by the legislature.

43.  Historically, in England at least, the House of Commons had the privilege to provide for its own composition, see de Smith, Constitutional and Administrative Law, 4^th Edn p.322-3. Before 1868, election petitions were presented to and heard by the House. The nature of the jurisdiction of an election court was considered by the High Court of Australia in Holmes v Angwin (1906) 4 CLR 297. At p.309, Barton J said,

“The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants.  It is that domestic jurisdiction which … has been transferred [to the court]…”

44.  Since it was perceived as an incidence of the legislative power, historically there was no right of appeal. The transfer of the jurisdiction to the court was brought about by statute. But the character of the jurisdiction remains the same, see Holmes v Angwin (1906) 4 CLR 297. Thus, in de Smith, Constitutional and Administrative Law, (5^th ed) at p. 273, it was said,

“In form the judgment of an election court is a report to the Speaker, which the House is directed by statute to accept.  By the act of resolving that the report be recorded in the Journals of the House, the empty shell of the ancient privilege of the House is preserved.”

45.  The legislature did not deem fit to create any right of appeal when the jurisdiction was transferred to the court. Though it is right to observe that Basic Law were not in place when a similar finality provision was introduced in Hong Kong, the LegCo Ordinance was enacted in 1997 after the promulgation of the Basic Law. The legislature must be taken to have the provisions of the Basic Law well in mind, including Article 82, when Section 67(3) was enacted.

46.  If the jurisdiction remains an incidence of legislative power, and those in the Legislative Council must be in a better position than the court to assess the impact of any delay in the final resolution of election dispute, I can see a strong argument that the court should not lightly conclude that the right balance had not been struck simply because there were other mechanisms in overseas jurisdictions.

47.  Having said so, I appreciate that due to the manner in which arguments were deployed before us, we may not have heard all the submissions that can be canvassed in relation to this point. Hence, all I wish to say is that this appears to be a point that has to be addressed in the event that this case is taken to the Court of Final Appeal.

(I) Leave to appeal by the Petitioner from judgment of HCAL141/2008 given by the Appeal Committee. Please refer to FAMV3/2010 dated 2 June 2010 (II) Appeal by the Petitioner to Court of Final Appeal allowed. Please refer to FACV8/2010 dated 13 December 2010