MOK CHUNG FAI REX AND OTHERS v. SECRETARY FOR JUSTICE

HCMP 280/2022

[2022] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 280 OF 2022

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D E C I S I O N

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1.  The 1^st to 13^th Applicants were candidates of the Education Subsector of the Election Committee Subsection Ordinary Elections held on 19 September 2021. They were duly elected in the said election. The Applicants are all principals of various kindergartens, primary schools and/or secondary schools.

2.  The Applicants appointed Mr Tsoi Wun Lam as their Election Agent.  On 9 September 2021, Mr Tsoi sent their printed election advertisement to the electorates of the Education Subsector by ordinary post for and on behalf of the Applicants.

3.  However, Mr Tsoi failed to furnish the information sheet and 2 copies of the said election advertisement to the returning officer under Regulation 108(1)(a)  of the Electoral Affairs Commission (Electoral Procedure)  (Election Committee)  Regulation, Cap 541I (the “Regulations”).

4.  The Applicants are applying to the Court for an order excepting the Applicants from the requirements under Regulation 108, pursuant to Regulation 109 of the Regulations.

5.  Under Regulation 109 of the Regulations, the Court may make an order excepting an act from the relevant requirement under Regulation 108, if the Court is satisfied that the non-compliance was due to, inter alia, inadvertence and was not due to bad faith; and the court believes it to be just that the act be so excepted.

6.  “Inadvertence” means negligence or carelessness and the circumstances show an absence of bad faith (See: 陳佩怡 訴 選舉事務委員會, HCMP 2886/2012 (17/04/2013), at paragraph 17).

7.  The Registration and Electoral Office takes a neutral stance on the application, and fairly accepts that the breach of regulation in question is technical in nature.

8.  Having considered all the evidence filed by the Applicants in these proceedings, the nature of the breach in question, and the background of the Applicants, I am satisfied that the non-compliance of Regulation 108 by the Applicants was due to inadvertence and was not due to bad faith; and the court believes it to be just that the act be so excepted.

9.  Accordingly, I make an order in terms of paragraphs 1 and 2 of the Originating Summons dated 3 March 2022.

(Discussion re costs)

10.  Costs of the application be paid by the Applicants to the Respondent, summarily assessed at $20,535 to be paid within 28 days.

Mr S C Tsoi, instructed by Y K Tam & Co, for the 1^st to 13^th Applicants

Mr Dickson Heung, Government Counsel of the Department of Justice, for the Respondent