COURT OF FINAL APPEAL, HKSAR
CHIEF JUSTICE GEOFFREY MA
JUSTICE PATRICK CHAN PJ
JUSTICE R.A.V. RIBEIRO PJ
JUSTICE LITTON NPJ
JUSTICE GLEESON NPJ
24 MAY 2012
Chief Justice Geoffrey Ma
We are, in this appeal, concerned with the elections to the Legislative Council which took place in September 2008, specifically the elections contesting the Information Technology Functional Constituency seat. Two candidates ran for that seat, the petitioner and the first respondent. At the conclusion of the elections, the first respondent was declared by the Returning Officer to be the winner. He had 2,017 votes in his favour while the petitioner had 1,982, a majority of 35 votes.
By an Election Petition dated 8 November 2008, the petitioner challenged the election of the first respondent on, among other grounds which no longer concern us, the basis that the first respondent had engaged in illegal conduct within the meaning of s 61 of the Legislative Council Ordinance Cap 542 (“the LCO”). This illegal conduct, which was said to contravene relevant provisions of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 (“ECICO”), involved the failure to disclose the full extent of election expenses incurred by the first respondent in relation to the elections. Specifically, these expenses related to activities that took place prior to his public declaration that he was going to stand as a candidate in the elections for the functional constituency seat.
Reyes J dismissed the Petition on 9 April 2009. On 3 December 2009, the Court of Appeal dismissed the petitioner’s appeal on the basis that no appeal was possible as a matter of jurisdiction (s 67(3) of the LCO). This was reversed by this Court in a Judgment handed down on 13 December 2010 in which s 67(3) of the LCO was held to be unconstitutional. The consequence was that the appeal from the decision of Reyes J on the merits had to be heard by the Court of Appeal. The Court of Appeal, by a majority decision (Tang Ag CJHC and Stock VP, Cheung JA dissenting), again dismissed the petitioner’s appeal. The petitioner now appeals to this Court.
The second respondent was the Returning Officer for the elections and took no part in either the proceedings before the Court of Appeal or before us. In any Election Petition, the Returning Officer must be joined as a party: s 63(1) of the LCO. I shall hereinafter refer to the first respondent simply as the respondent.
A.1 The Issues
A number of issues were canvassed before the lower courts, but only two issues now concern us: first, whether the respondent had exceeded the election expenses allowed under ECICO and therefore engaged in illegal conduct; and secondly, if so, the consequence of this and specifically, whether the Court can or should substitute the petitioner in place of the respondent to be the duly elected representative of the Information Technology Functional Constituency seat in the September 2008 elections. The first issue involves a consideration of the ambit of election expenses under the relevant provisions in ECICO. The second issue involves examining the scope of the Court’s power to grant relief under s 67(2) of the LCO.
On 6 January 2012, the Appeal Committee of this Court granted leave to appeal to the petitioner on the following two questions:-
I shall refer to these questions as, respectively, the First Issue and the Second Issue.
A.2 The facts relevant to the Issues
The facts relevant to the First Issue regarding election expenses center on the expenses incurred by the respondent (or on his behalf) in relation to eight video programmes that were broadcast on Cable Television between 30 May and 30 June 2009. These video programmes, each lasting between 60 and 90 seconds, were broadcast about 600 times during that period.
The Judgments of the Courts below detail the contents of these videos. It is unnecessary for me to set out the contents again. It is sufficient to say that these programmes featured only the respondent, and were intended to enhance his image and profile.
The evidence showed that a sum of $220,000 was spent by a company called TechMatrix Research Centre Limited (“TRC”) (of which the respondent was a director and 50% shareholder) on the airtime given for the broadcast of the videos on Cable Television. This was paid by TRC to Hong Kong Cable Television Ltd (“HK Cable TV”). It can be assumed that this was money spent on behalf of the respondent. In the Courts below, the petitioner asserted that the sum spent by TRC should in fact be taken as being over $2 million, and not just $220,000. The $200,000 had been a discounted figure (an 88% discount). This argument was maintained before us. The assertion was based on certain election guidelines provided by the Electoral Affairs Commission (“the EAC”) which stated that unless a discount was generally available, any discounted amount should be included in the computation of election expenses. Both Courts below had no difficulty in finding that the discount given to the respondent was a genuine discount that was available to all customers. This finding cannot be disturbed.
On 20 June 2008, the Chief Electoral Officer of the EAC gave notice in the Government Gazette that the elections for functional constituency seats in the Legislative Council would take place on 7 September 2008. He also specified 19 July 2008 as the commencement date for nominations to be made for candidates for functional constituency seats in these elections (the period when nominations should be made is known as the nomination period). On 13 July 2008, the respondent publicly announced (at a press conference) his intention to stand as a candidate for the Information Technology Functional Constituency seat.
The broadcast of the videos took place before these dates. The significance of these dates from a legal point of view will be dealt with later in this Judgment.
12. The videos were also uploaded onto the respondent’s website, his web log (blog) and on YouTube both before and after these dates. The purpose behind this was obviously to enhance the public image of the respondent. Since the copyright in the videos belonged to HK Cable TV, a sum of $20,000 had to be paid by the respondent to that company for this uploading. This sum was declared by the respondent as part of his election expenses, but not the $220,000 that he (or rather, TRC) paid. The respondent maintains that the sum of $220,000 did not constitute election expenses. Whether or not they were election expenses was the question in the Courts below and is the same factual question that is before us for determination. Reyes J made a number of important findings of fact (after hearing oral evidence), to which I shall refer when dealing with the First Issue.
As stated above, the elections for the Information Technology Functional Constituency seat of the Legislative Council took place on the 7 September 2008, when the respondent was elected.
Subsequent to the elections, as required by s 37 of ECICO, the respondent lodged with Chief Electoral Officer of the Electoral Affairs Commission an election return (dated 10 November 2008) setting out his election expenses. These expenses were stated at $187,129.13. If the $220,000 had to be included as part of his election expenses, the maximum amount allowable (being $336,000 as we shall presently see) would have been exceeded, and the respondent would thereby have engaged in illegal conduct for the purposes of ECICO. I will set out the relevant law in the next section when dealing with the First Issue.
There are three further matters that I ought to highlight at this stage before leaving the facts:-
The EAC (the body responsible for the conduct and supervision of elections: see s 4(b) of the Electoral Affairs Commission Ordinance Cap 541 (“EACO”)) received a letter dated 11 July 2008 from Mr Sin Chung-kai (the incumbent at that time of the Information Technology Functional Constituency seat) in which a complaint was made relating to the broadcast of the said videos. It was said that these broadcasts constituted election advertisements. Reference was made to s 2 of ECICO defining election advertisements as any form of publication (including video transmission) which promoted the election of a candidate. It was said that the respondent’s conduct breached election guidelines set by the EAC regarding election advertising . These programmes, it will be recalled, took place before the respondent’s public declaration of his intention to stand and before the start of the nomination period for the elections. The EAC replied to Mr Sin by a letter dated 29 August 2008, in which the following points were made in rejecting the complaint:-
Even though the videos (which by that time had also been uploaded to the respondent’s website, blog and YouTube) had highlighted the respondent’s personality, there was no mention of any election-related matter or canvassing message. It was said the programme related to the working life of information technology professionals in general.
The videos had been shown on Cable Television before the respondent had publicly declared his intention to run on 13 July 2008. They were therefore not election advertisements. However, the videos that were shown on the respondent’s website, blog and on YouTube after that date were to be so regarded.
A similar complaint was made to the Broadcasting Authority by Mr Sin (also by a letter dated 11 July 2008). It was said that the videos constituted political advertisements within the meaning of the Broadcasting Ordinance Cap 562. In its reply dated 27 October 2008, the Broadcasting Authority, like the EAC, took the view that the videos were not election advertisements. It was said “they were not election-related”.
By a letter dated 29 August 2008 to the respondent, the Complaints Committee of the EAC referred to a complaint that had been received in relation to the videos (the complainant was not identified but is likely to have been Mr Sin). The respondent was informed that the EAC did not regard the broadcast of the videos prior to 13 July 2008 as being election advertisements and that accordingly the expenses relating to such broadcast were not election expenses. It was on the basis of this letter that the respondent says (in his affidavit sworn in the present proceedings) he completed his election return in the way he did.
These being the basic facts, I now deal with both Issues. The First Issue is the more important one. As we shall presently see, the Second Issue does not arise.
B THE FIRST ISSUE: ELECTION EXPENSES
B.1 The law
In a society governed by the rule of law, where there is a real separation of powers, proper elections to public bodies are of importance. This is recognized in the Basic Law and also in the Bill of Rights. Hong Kong permanent residents have the right to vote and the right to stand for election: Article 26 of the Basic Law and Article 21 of the Bill of Rights. The Legislative Council, the body with which we are concerned in the present proceedings, is constituted by election: Article 68 of the Basic Law. Elections therefore represent a valuable right and it is critical that they have integrity so as to ensure that those elected are truly representative of those who are entitled to vote for them.
The integrity of elections is entirely dependent on their being genuine, open, honest and fair.
The particular question before us in this appeal focuses on the election expenses which can be incurred by a candidate in elections to a functional constituency in the Legislative Council. As we shall see, such expenses relate essentially to everything that is intended to make a candidate more attractive (or electable) to relevant voters or his opponents less so, this being a critical part of any election campaign.
The principal ordinance governing election expenses is ECICO. One of the main objects of this Ordinance is to ensure that elections to Legislative Council are conducted fairly, openly, honestly and free from corruption or illegal conduct: see the long title and s 3(a). The Ordinance seeks to ensure that candidates at elections do not exceed permitted levels of election expenditure: see s 3(c). We are directly involved with this aspect in this case. Section 24 of ECICO is the critical provision to be considered (this provision is set out below.). It is easy to see the public policy reason for a statutory cap on election expenditure: it is intended to make sure that no undue advantage is given at an election to those who have substantial financial means or access to such means, to the disadvantage of those who also seek to be elected but who have less financial means at their disposal. In short, the law regarding election expenses ensures a level playing field, a term that is frequently used in this context.
The First Issue for the consideration of this Court involves determining the precise ambit of the relevant statutory provisions. Before doing so, I must first set out the basic statutory framework. Two other ordinances are relevant to be considered as well in the context of election expenses: EACO and the LCO.
The basic framework:-
The definition section in ECICO (s 2(1)) defines election expenses as follows:-
“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 –
and includes the value of election donations consisting of goods and services used for that purpose.
In the present case, we are of course concerned with the expenses of a single candidate (namely the respondent), not a group of candidates.
A candidate is defined in s 2(1):-
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 period means the following as defined also under s 2(1):-
|“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).|
The meaning of the nomination day for the election, polling day and of the time when nominations for candidates at an election are to be made (relevant to functional constituency seats in the Legislative Council) is as follows:-
Under Article 69 of the Basic Law, the term of office of the Legislative Council is four years, unless, exceptionally, it is dissolved earlier by the Chief Executive (as to which, see Articles 49, 50 and 70 of the Basic Law).
By s 6 of the LCO, the Chief Executive must specify a date for the holding of elections for members of the Legislative Council and notice of this date must be given in the Gazette.
As soon as practicable after the publication of this gazetted notice, the Chief Executive Officer of the EAC (he performs the functions of the EAC) must publish in the Gazette a notice which, apart from stating the date when elections for functional constituency seats are to take place, must also give the period (this is the nomination period) within which nomination forms for the relevant functional constituency must be submitted to the Returning Officer: s 5 of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation Cap 541D. A nomination form is the specified form to be used to nominate a person to stand for election to a functional constituency: s 2 of that Regulation. The parties in the present case have taken the nomination day (referred to in the definition of the election period) to mean the day when the nomination period begins. I am content to adopt this as the meaning of that term.
The nomination period must not begin earlier than the date of the s 5 notice and cannot be less than 14 days or more than 21 days; the period cannot end less than 28 days or more than 42 days before the date when the elections are to be held: s 7 of the Regulation.
Polling day is the day when polling takes place at an election. Obviously, polling will only take place where there is more than one candidate and where the number of candidates is fewer than those entitled to vote.
In the present case, the s 5 Notice was given by the Chief Electoral Officer on 20 June 2008 (para 10 above). The nomination day (the start of the nomination period) was stated to be 19 July 2008 and the polling day, 7 September 2008.
Each candidate at an election for the Legislative Council must, within the stipulated time, lodge with the Chief Election Officer an election return setting out that candidate’s election expenses, containing the requisite details and supporting documentation: s 37 of ECICO.
Maximum amounts which a candidate is allowed to incur by way of election expenses at an election are stipulated by the Chief Executive in Council: s 45(1) of ECICO. In the case of the Information Technology Functional Constituency of the Legislative Council, the maximum amount (and this was therefore applicable to the respondent in the present case) was $336,000: s 4(b)(ii) of the Maximum Amount of Election Expenses (Legislative Council Election) Regulation Cap 554D.
Serious consequences flow where a candidate at an election exceeds the maximum allowable for election expenses. This is regarded as illegal conduct under ECICO. Such illegal conduct can result in criminal prosecution as well as give rise (as in the present case) to a challenge being made (by way of an Election Petition) to the election of a person to the Legislative Council. The seriousness of the consequences of excessive election expenses reflects the public policy to which I have earlier made reference.
The relevant provision stating that excessive election expenses constitutes illegal conduct is s 24(1) of ECICO (which is contained in Part 3 of that Ordinance dealing with illegal conduct in its various forms):-
This provision is of course not a stand-alone provision: reference must be made to the statutory definition of election expenses and candidates: see para 22 above.
The criminal consequences of illegal conduct are spelt out in s 22 of that Ordinance (which applies generally to all the forms of illegal conduct set out in Part 3):-
The provisions which directly concern the present proceedings in relation to election petitions are contained in the LCO:-
Section 61 of the LCO states:-
It is s 61(1)(a)(ii) that is of particular relevance as regards to the respondent in the present case. The other provisions are, however, relevant to be considered under the Second Issue.
Section 62 identifies those persons entitled to lodge such an election petition, including a person claiming to have been a candidate in the relevant election. The petitioner was the other candidate at the election in the present case.
The critical question to be determined in the present case (and this question applies to any similar elections) is: what is the ambit of election expenses for the purposes of ECICO? Given the importance of this question in the statutory framework of election law to ensure that elections are conducted in a genuine, open, honest and fair manner – not to mention the severe consequences arising from a failure to comply with the law – it is imperative in my judgment that the law should be as clear as possible. This is a quintessential example of where clarity will enable persons to conduct their affairs without fear of the serious consequences that will ensue if the law is not adhered to.
In answering this critical question, I think there are essentially four main lines of inquiry:-
Who can incur such expenses?
What are election expenses?
When can election expenses be incurred?
Apportionment of expenses into election expenses and non-election expenses.
The first question can quickly be answered: the definition of election expenses in s 2(1) of ECICO (see para 22(1) above) states that election expenses are those incurred or to be incurred by a candidate (or group of candidates) or those incurred or to be incurred on his (or their) behalf. The term ‘candidate’ is defined under s 2(1): see para 22(2) above. This should pose no problems in practice.
The second question will in most cases be the critical one. A clear analysis is required here, otherwise, given what at first sight appears to be a wide definition of election expenses in the ordinance, all sorts of activity may be caught by the definition when this could not have been the statutory intention.
The definition of election expenses in s 2(1) of ECICO states that in order to qualify as such, they must be incurred for the purposes of either promoting the election of a candidate or prejudicing of the election of another candidate, or both.
It has been said in effect that these purposes are really two sides of the same coin in that prejudicing the election of a rival candidate will usually involve promoting oneself in the election: see DPP v Luft  AC 962, at 983G-984A.
These stated purposes seem at first sight to be clear enough but can in practice cause difficulties if construed too widely. Some people may wish, for whatever reason, to raise their public profile. Some do so with an eye towards taking part in public life at some stage, others may do so for self-promotion alone. Others may want to ‘test the water’ to see whether they are sufficiently popular to be able to garner votes at an election, but sometimes without a clear idea as to the type of election in which they might wish to stand (in Hong Kong, there are elections for the Legislative Council (functional constituency or geographical constituencies), the District Council, Rural Committees etc). It may loosely be said that in raising one’s public profile, one is promoting oneself as a candidate in an election or at least that this may be one of the purposes of whatever activity is embarked on. If this is what the provisions in ECICO regarding election expenses were intended to cover, there is potentially a very wide range of activity that will be caught. I do not believe the relevant statutory provisions with which we have to grapple in the present case are intended to go so far.
I leave aside for the time being the position of expenses which are partly attributable to one or both of the purposes mentioned in the definition of election expenses and partly for some other purposes. I deal with this under the fourth question regarding apportionment. I am at the moment concerned with the true nature of election expenses.
In my view, in determining what are election expenses, which of course requires looking at the purpose for their incurrence, I think it is helpful to examine the nature of the type of activity or matter (for which the relevant expense has been incurred) that is intended to be covered by the statutory provisions, when such activity or matter can take place or occur.
For an activity or matter, the expense for which can be regarded as an election expense, so as to be caught by ECICO, this activity or matter must be confined to a specific election, and not just some vague electoral purpose. The language of ECICO reinforces this: the definition of election expenses refers to candidates “at an election”; s 24(1) refers to illegal conduct “at an election” and highlights the election expenses “incurred at or in connection with the election” (my emphasis) by or on behalf of a candidate. There is also of course the reference to the “election period” in the definition of election expenses:- this further reinforces the point.
From the express wording in the relevant provisions in ECICO, it can be seen that the relevant provisions in ECICO regarding election expenses emphasize three aspects: the relevant elections themselves, the election period for such elections and the candidacy for them.
This strongly suggests, in my view, that the type of activity or matter intended to be caught by the election expense provisions in ECICO consists only of those activities or matters which are referable to a specific election and which take place or occur during the election period or the period of a person’s candidacy (whichever period begins earlier). In relation to candidacy, ECICO has chosen to define a candidate as meaning either a person who stands nominated as a candidate at an election or 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. Thus, clear lines are drawn as to when a person is to be treated as a person who seeks election to the relevant body. Unlike the definition of candidate in other jurisdictions (such as the United Kingdom, where the statutory definition is narrower), ECICO paints the line at either formal nomination as a candidate or, significantly, before formal nomination, when a person has made a public declaration of his intention to stand as a candidate at an election. As regards the latter, it will of course be a question of fact in any given situation whether a person has effectively made such a public declaration. There is no set form for such declaration to be made. For example, a person who promotes himself publicly as being a suitable candidate for elections to a particular body, may well be treated as effectively having made a public declaration to stand as a candidate even in the absence of a formal declaration as such.
Accordingly, on a true construction of the legislation, in particular the references to specific elections, the election period and the status of a candidate in those elections, there is imported a temporal limitation on the objectives to which expenses must be directed if they are to qualify as election expenses.
Further, in relation to the nature of election expenses, I have also found of some guidance the position in England. In Fiona Jones and Desmond Whicher  2 Cr App R 253, the Court of Appeal had to consider s 76 of the Representation of the People Act 1983 which prohibited election expenses being in excess of the maximum allowed “on account of or in respect of the conduct or management of the elections”. Election expenses were defined (in s 118 of the Act) to mean “expenses incurred, whether before, during or after the elections, on account of or in respect of the conduct or management of the election”. Lord Bingham CJ, in the judgment of the Court, at 256E stated the meaning of election expenses in the following way: “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”.
In our legislation, ECICO does not specifically refer to expenses “in the conduct or management of an election” as such but in my view, election expenses refer precisely to those activities or matters in the conduct or management of an election by those seeking to be elected (the candidates); in other words, those activities or matters which go to the machinery of an election. This is providing of course these activities or matters are for the purpose of either promoting the election of a candidate or prejudicing the election of another candidate. The expenses incurred in relation to such activities or matters would then be (to adopt the wording of the s 2(1) definition of election expenses) those incurred by a “candidate … at an election” and (to use the words in s 24(1) of ECICO) expenses “incurred at or in connection with the election by or on behalf of the candidate”. These are the very activities or matters in relation to a specific election that take place or occur during the election period or during the period of a person’s candidacy. Thus, the said references in our legislation to specific elections, the election period and the status of a candidate in the elections provide guidance, not just on the temporal aspect of expenses (see para 39 above), but also on their functional aspect.
The expenses that go to the conduct or management of an election will include those incurred in relation to activities or matters such as the hiring of election staff, the renting of office space for election purposes, advertisements or promotions of a candidate to make him electable. A useful list of election activities and matters is contained in Appendix M of the Guidelines on Election-related Activities in respect of the Legislative Council Election (2004) provided by the EAC.
It is convenient at this juncture to point out an important difference between the Hong Kong legislation and the English one. I have earlier stated that on a true construction of our relevant legislation, election expenses must be confined to those activities or matters which are in relation to a specific election and which take place or occur during the election period or the period when a person is a candidate (whichever begins earlier). Our legislation makes the assumption in relation to candidates that until a person is formally nominated or has made a public declaration of his interest to stand in elections, he is not to be treated as a candidate. This is the way that the legislature has chosen to define the meaning of a candidate.
In England, the Representation of the People Act 1983 defines candidate to mean a person who is elected to serve in parliament after an election or a person who is nominated as a candidate at the election or is declared by himself or by others to be a candidate on or after the date of the issue of the writ for the election or after the dissolution or vacancy in consequence of which the writ was issued. It is a narrower definition than that in Hong Kong. This, I venture to suggest, would explain the English position whereby instead of restricting the definition of election expenses to those activities or matters which take place or occur during the election period or after a person has become a candidate, the English courts have held instead that election expenses relate to activities which take place when a specific election is “reasonably imminent”: see, for example, Fiona Jones at 256D-F. This is a far less precise test than the test I have articulated as applicable to Hong Kong, but if a reasonable imminence test were not adopted in England, the narrowness of the definition of candidate in the English legislation could rise to potential abuse. Where, for example in England, a person had not formally become a candidate at an election, but in effect was acting as such, the expenses incurred in activities or matters during the period before he formally became a candidate, may not be covered but for the reasonable imminence test. In Hong Kong, on the other hand, this scope for abuse is much more limited. Where a person has all but declared his candidacy, the definition of candidate under the Hong Kong legislation will be sufficiently wide to enable expenses of activities or matters which take place or occur during the time a person is to be taken to be a candidate, to be treated as election expenses.
A concrete example may assist to understand the difference. A person begins publicly to campaign for his election to the Legislative Council when elections are reasonably imminent but before there is even an announcement is made as to when elections are to be held. In England, the expenses incurred in this activity (which would be before the writ of election is issued) would not, but for the reasonable imminence test, be caught; the definition of candidate will not assist here. In Hong Kong, such a public campaign would very likely be construed as in effect a public declaration of an intention to stand for election. Based on the view the law I have taken, the expenses going to such a campaign will be caught under the definition of election expenses.
A test based on reasonable imminence was rejected by the majority of the Court of Appeal in the present case as being too vague and instead, they opted for clearer and more definite lines, these being the period beginning either with the election period or with the public declaration of an intention to stand, whichever began earlier. With respect, I agree. Particularly given the serious consequences of exceeding the permitted maximum expenditure for election expenses, it is compelling that clear lines must exist.
I now move onto the third line of inquiry: when can election expenses be incurred? The legislation does not stipulate any period of time so as to restrict when expenses may be incurred for the purposes of being election expenses. Quite the contrary, the definition of election expenses in s 2(1) of ECICO states that such expenses can be incurred “before, during or after the election period”. I daresay most election expenses will be incurred during either the election period or the period after a person has become a candidate, but the statutory definition does not confine the incurrence of such expenses to just these two periods. This is an additional reason why the scope for abuse in Hong Kong is limited.
What is the position, then, where the relevant expense has been incurred before (or after) the election period or the period after a person has become a candidate (assuming of course the relevant activities or matters are for one or both of the requisite purposes)? A few examples will help illustrate:-
A person who eventually becomes a candidate pays money upfront to a printer of leaflets which promote that person to be a suitable candidate to be elected to the Legislative Council. He pays (and therefore incurs the expense) before the election period and before he becomes a candidate (as defined). After he has become a candidate or enters the election period, he uses the leaflets to promote his candidacy.
The same person rents premises as his election offices. He again pays the whole of the rental upfront before the election period and before becoming a candidate. After he has become a candidate or enters the election period, the premises are used as his election offices.
He hires staff for the purposes of his election campaign. He agrees to pay his staff only after the election (when, as defined, the election period has ended and he has also ceased to become a candidate). The staff is engaged during the election period or during the time he is a candidate, for the purposes of promoting the election of that person or prejudicing the election of another candidate.
In these situations, the expenses will be caught by the definition of election expenses. As long as the activities or matters to which the expenses relate, took place or occurred either during the election period or during the period of a person’s candidacy (and that such expenses were incurred for one of the two said purposes), it does not matter when such expenses were actually incurred, whether before, during or after the election period. I am conscious in such a situation, for the purposes of s 24 of ECICO, a legal consequence may be that a person could fall foul of its provisions even though at the time of the actual incurrence of the relevant expenses, he may not necessarily be a candidate yet (as defined in ECICO). This, however, would be inevitable given the definition of election expenses which states that expenses can be incurred “before, during or after the election period.” In terms of criminal liability, I would also refer to s 22(2) of ECICO which states that a person may be convicted of the offence of having engaged in illegal conduct at an election if he is found to have engaged in the conduct “before, during or after the election period.”
I now deal with the fourth line of inquiry: can expenses be apportioned into election expenses and non election expenses?
In ascertaining the purpose of an expense, it is possible to encounter a situation where an expense may be incurred for more than one purpose. For example, an office is rented or staff is engaged by a candidate in an election, but more than one purpose is served by that office or staff, only one of which is to promote the election of that candidate or to prejudice the election of another candidate. How are the expenses to be dealt with in such a situation?
In these circumstances, it seems to me wrong to treat the whole of such expenses to be election expenses; it is equally wrong to treat no part of the expenses as an election expense. This must be so as a matter of common sense. In my judgment, in situations where an expense can be said to relate to more than one purpose, an apportionment exercise is called for. Such apportionment would be between those expenses relating to the purposes stated in the definition of election expenses and those in relation to any other purpose. In any given case, it will be a question of fact as to whether an apportionment exercise is appropriate and if so, how the apportionment should be made. Only the part of the expense relating to one or both of the statutory purposes, will be treated as an election expense.
It is of course possible that in any apportionment exercise, difficulties may arise but in most cases, I would hope that the exercise would be a relatively simple one. It may be that the EAC will consider issuing guidelines under s 6(1)(b) of EACO.
I am reinforced in the view I have taken of the appropriateness of this approach by the following:-
Nothing in ECICO prevents an apportionment exercise where appropriate; in particular nothing in the definition of election expenses in s 2(1) forbids this.
In Fiona Jones, an issue arose as to the direction given by the Crown Court judge to the jury regarding the apportionment of expenses in that case (for the relevant direction to the jury, see 261C-F and 263E-264F). The issue before the Court of Appeal was whether the judge was correct in having placed this issue of apportionment before the jury when this was not the way the case had been opened by the prosecution; in other words, the judge had reformulated the case against the accused: at 264G-265D. The Court of Appeal was of the view the conviction was therefore unsafe by reason of this, but nothing was said to indicate that an apportionment exercise was somehow impermissible in any event. Indeed, I would say quite the opposite: at 265A-D.
B.2 Consideration of the law by the courts below
Reyes J dealt briefly with the law. He referred principally to Fiona Jones and then said at para 75 of his Judgment:-
Nothing was said about election expenses having to relate to activities or matters which take place or occur during the election period or the period when a person is a candidate. This demarcation was, as we have seen, held by the majority of the Court of Appeal to be applicable.
In his dissenting judgment, Cheung JA rejected the clear line approach and instead adopted the position in England. Reference was made to para 628 of Halsbury’s Laws of England Vol 15 (4th ed, Reissue):-
From his earlier citation of a passage from Fiona Jones, Cheung JA appears to have adopted the reasonable imminence test. I am, for my part, for the reasons given above, unable to agree.
I have already set out the material differences between the English statutory provisions and ours (see paras 43 to 45 above). The clear and bright lines drawn represent, I believe, the intention behind our statutory provisions. I reiterate that in this area where severe consequences may result, clarity assumes particular importance.
B.3 Summary of legal position
I have now dealt in detail with the legal principles applicable to election expenses. In answering the critical question of the ambit of election expenses under ECICO, I have suggested there are four lines of inquiry: see para 28 above.
In most situations involving the ascertainment of election expenses by a candidate at an election, the following indicators of whether the expenses concerned constitute “election expenses” and two other inquiries should be considered. They provide a useful summary of the legal position as well. Expenses are likely to qualify as “election expenses” if they meet the following five criteria; there are two further inquires as well:-
They have been incurred by or on behalf of a candidate (as such a person is defined under s 2(1) of ECICO).
Having identified the activities or matters to which the relevant expenses relate, such activities or matters are referable to a specific election.
Such activities or matters go to the conduct or management of the election; in particular to the machinery of the election.
The expenses were incurred for the purpose of promoting the election of the relevant candidate or prejudicing the election of another candidate.
The activities or matters financed by the expenses have taken place or occurred either during the election period (as defined in s 2(1) of ECICO) or during the period when the relevant person was a candidate.
The date when the relevant expenses were incurred should be ascertained (although, as we have seen, this is not a critical question since election expenses may be incurred before, during or after an election period).
In relation to the relevant activities or matters, it should be considered whether an apportionment exercise appropriate between election expenses and non election expenses is necessary.
B.4 Application to the facts in the present case
The activity or matter, the expenses for which are said by the petitioner to constitute election expenses, is the broadcast of the videos on Cable Television in the one month period from 30 May 2008 to 30 June 2008.
In relation to this issue, the findings of Reyes J, who had the advantage of hearing the testimony of live witnesses as well, were as follows:-
In dealing with the issue (which was not pursued before us) of whether the videos represented political advertisements under the Broadcasting Ordinance (this was raised as a complaint to the Broadcasting Authority: see para 15(2) above), Reyes J held they were not. He was of the view there were no overt elements of encouraging the public to vote for the respondent into public office or discouraging the public from electing another person, although it was accepted that the videos promoted the respondent’s personality and created a favourable image of him.
The Judge also regarded the videos as too frivolous and simplistic for the purpose of influencing the public in favour of the respondent. The Judge said this at para 50 of his Judgment:-
In dealing with the issue of whether the videos were political advertisements, the Judge also referred to the contents of the reply dated 27 October 2008 from the Broadcasting Authority to Mr Sin (see para 15(2) above).
It is significant to note that the Judge was fully aware of the possibility of a person effectively being a candidate even though a formal declaration of candidacy had yet to be made. In essence, the Judge was of the view that a person could be regarded as a candidate within the statutory definition when his conduct would suggest he had to all intents and purposes effectively made a public declaration of candidacy. This is the same point made earlier in this judgment: see paras 38, 44 and 45 above. The Judge said this at paras 38 and 39 of his judgment:-
The Judge’s findings must be seen in this light.
In determining the issue of whether the expenses relating to the videos constituted election expenses, the Judge found that with the public declaration of intention to stand made by the respondent on the 13 July 2008, the context of the videos changed entirely. Subsequent to that date, the availability of the videos on the respondent’s website, blog and on YouTube was clearly intended to promote the respondent’s election to the Legislative Council. Before that crucial date, given the findings in relation to the issue of political advertisements, the Judge (by reference to the phrase used in English authorities such as Fiona Jones) held that the $220,000 incurred in relation to the videos were not closely related to “the machinery” of the election.
In the judgment of the Court of Appeal, the following matters should be noted:-
In the judgment of Tang Ag CJHC, it was noted that leading counsel for the respondent did not contend the videos were election advertisements (although counsel effectively withdrew this concession before us).
Reference was also made to the contents of the said letter dated 29 August 2008 from the Complaints Committee of the EAC to the respondent (para 15(3) above).
After stating (correctly with respect) that the question of whether expenses are election expenses is largely a question of fact, Tang Ag CJHC was ultimately of the view that the Judge’s findings could not be criticized.
Stock JA initially expressed some disquiet on the conduct of the respondent but, after dealing with the law and the need for clarity (an aspect that, as I have already said, is of considerable significance), agreed with the Judge’s conclusions in holding that the respondent did not fall foul of the provisions of s 24 of ECICO.
Cheung JA, in his dissenting judgment, however, reversed the findings of the trial judge, holding that Reyes J had taken too narrow a view. After evaluating the facts, Cheung JA concluded at para 134 of the judgment:-
In view of the facts as found by Reyes J, supported by the judgments of the majority in the Court of Appeal, it is not possible to disturb these concurrent findings. I would particularly emphasize those findings that lead to the conclusion that the relevant activity or matter (that is, the broadcast of the videos) took place or occurred prior to the election period and prior to the respondent having become a candidate (as that term is defined in s 2(1) of ECICO).
In any event, even if it were somehow open to reconsider these findings, I would not have done so. I have already set out the facts relevant to the Issues in this case (see s A.2 above). I need only emphasize two aspects:-
First, although the views of the EAC and the Broadcasting Authority in the letters written to the respondent and to Mr Sin (see paras 15(1) and (2) above) are not conclusive, they are nevertheless of some evidential value, as both Reyes J and the majority of the Court of Appeal found.
Secondly, no one has suggested (and indeed the facts of the present case do not indicate) that any of the disputed election expenses (the $220,000) related to activities or matters that took place or occurred after the respondent had become a candidate (or during the election period). It was not suggested that at some stage prior to 13 July 2008 the respondent had in effect publicly declared his intention to stand as a candidate in the elections. Reyes J had, I would suggest, found quite the opposite: see para 63 above.
I have already said I am unable to agree with Cheung JA’s approach on the applicable law (para 58 above). This no doubt affected his conclusion on the facts. In any event, I am not persuaded that Reyes J had, as Cheung JA held, taken too narrow a view on the facts or had in any way erred in making his findings.
Finally, in this context, I should also just deal with the facts by reference to the matters set out in para 61 above:-
The $220,000 was incurred by TRC on behalf of the respondent.
The activities or matters to which the relevant expenses relate are the broadcast of video programmes between 30 May and 30 June 2008 and they are not referable to a specific election, not being election-related.
They do not go to the conduct or management of the election, nor to the machinery of the election.
The expenses were not incurred for the purpose of promoting the election of the relevant candidate or prejudicing the election of another candidate. The purpose of the videos was to create a favourable image of the respondent himself, but they were not election-related.
The videos financed by the relevant expenses were broadcast before the election period and before the respondent was a candidate. The broadcasts took place between 30 May and 30 June 2008. The election period began on 19 July 2008. The respondent publicly declared his intention to stand for election on 13 July 2008.
The expenses were incurred on various dates prior to the respondent’s declaration of his candidacy and prior to the election period.
No apportionment is called for in this case.
B.5 Conclusion under the First Issue
The petitioner must accordingly fail under the First Issue. Applying the above-mentioned indicators, the $220,000 incurred by the respondent in relation to the videos were not election expenses.
C. THE SECOND ISSUE : CONSEQUENCES OF A FINDING OF ILLEGAL CONDUCT FOR THE PURPOSES OF SECTION 67(2) OF THE LCO
C.1 The relevant statutory provisions
I have already set out the provisions of s 61 of the LCO enumerating the possible grounds based on which an election returning a member of the Legislative Council can be questioned (para 26 above). An election result can only be questioned in an Election Petition: s 61(2).
Following the trial of an Election Petition (in the present case involving a contested election), the Court must make the following determination under s 67(2) of the LCO:-
The petitioner contends in the present case that in the event he is successful on the First Issue (which of course would mean the respondent had engaged in illegal conduct), the Court should order that he (the petitioner) should be held to have been duly elected in place of the respondent.
C.2 The Views of the Courts Below
In light of the decisions of Reyes J and the majority of the Court of Appeal on the main issue in the proceedings, it was, strictly speaking, unnecessary to make a decision under s 67(2) of the LCO other than to confirm that the respondent was duly elected.
Reyes J dismissed the petition and declared the respondent to have been duly elected to represent the Information Technology Functional Constituency. He did not go on to consider what would have been the position had the petitioner succeeded.
The majority of the Court of Appeal upheld the decision of Reyes J. However, in relation to what might have been the relief had the petitioner succeeded, the views of the Court of Appeal were divided: -
Tang Ag CJHC was of the view that the Court would not in any event have declared the petitioner to be the duly elected member. He said this at para 103 of the judgment: -
Stock VP was of the same view.
Cheung JA, after reaching his decision that $220,000 attributable to the videos should count towards election expenses, had no difficulty in deciding that the petitioner should be regarded as having been duly elected in place of the respondent. His reasoning was as follows:-
C.3 Determination of the Second Issue
For my part, I am reluctant to engage in a detailed discussion of the Second Issue in view of the conclusion reached under the First Issue. It is unnecessary to do so. I would, however, like to make some observations in view of the lack of consensus in the approach of the Court of Appeal in determining what might have been the relief had the petitioner succeeded.
Section 67 of the LCO sets out what is to be done at the conclusion of a trial of an Election Petition. As far as s 67(2) is concerned (that is, where there has been a trial of an Election Petition in relation to a contested election), the Court must determine whether the person whose election was contested, was duly elected and if not, whether some other person was duly elected. The Court is required to make this determination, but it does not follow that the Court must, in the event an Election Petition succeeds, declare some other person to have been duly elected. The Court may after all decide that no person (whether the person whose election was contested or some other person) was duly elected at all, or that it was not in a position on the evidence to make such a decision.
This conclusion on the role of the Court under s 67(2) follows from both the nature of the power given to the Court under the provision and from its very wording:-
The nature of the power given to the Court under s 67(2) is to ensure that persons who truly represent the wishes of the relevant electorate, are elected and declared to be elected. This obviously follows from the right to vote contained in Article 26 of the Basic Law, to which I have already referred (see para 17 above).
The wording of s 67(2) supports this. The Court must determine whether a person has been “duly elected” (my emphasis).
In practical terms, therefore, the Court must determine whether a person has been “duly” elected and this is a question of fact. In the examples given by Tang Ag CJHC and Stock VP, which both relate to material irregularities such as irregular votes or wrong counting, these would often enable the Court to arrive at the conclusion that a particular candidate at an election was, or was not, duly elected. Material irregularities of course come under the provisions of s 61(1)(a)(iv) of the LCO.
I do not accept (as the petitioner contends) that Tang Ag CJHC and Stock VP were holding that as a matter of law, the determination by the Court under s 67(2) is confined only to material irregularities under s61(1)(a)(iv). The short answer to the certified question raised under the Second Issue (see para 6 above) is therefore No.
It is in principle entirely possible for the Court to make a determination under s 67(2) when any of the four grounds set out in s 61(1)(a) is engaged. For instance, we were referred to a number of authorities in which it had been held that where a candidate at an election was ineligible or incapable of being elected (cf s 61(1)(a)(i)) and it is shown that the people who voted for that candidate knew or can be taken to have known of that ineligibility or incapacity, then the Court would be in a position to discount the votes of these electors. In such a situation, the Court may find it possible to say with confidence that another person was duly elected. See here: the decision of the six-member Court of Appeal in Beresford-Hope v Lady Sandhurst (1889) LR 23 QBD 79, following the decision of the Court of Common Pleas in Drinkwater v Deakin (1874) LR 9 CP 626.
It is unnecessary (and undesirable) to expand on other or further facets of s 67(2). It is sufficient in the present case merely to say that on the facts, even if the petitioner had succeeded under the First Issue, it would not have been right for a Court to make a declaration that he was duly elected in place of the respondent. The Court would not have been in a position to do so.
For the above reasons, I would dismiss the appeal.
As to costs, I would make an order nisi that the respondent should have the costs of this appeal, to be paid by the petitioner, such costs to be taxed if not agreed. If either party wishes to have a different order for costs, written submissions should be served on the other party and lodged with the Court within fourteen days of the handing down of this judgment, with liberty on the other party to lodge written submissions within fourteen days thereafter. In the absence of such written submissions, the order nisi will stand absolute at the expiry of the time limited for submissions.
Justice Chan PJ
I agree with the judgment of the Chief Justice.
Justice Ribeiro PJ
I agree with the judgment of the Chief Justice.
Justice Litton NPJ
I agree with the Chief Justice’s judgment and with the orders he proposes.
Lest it be said that our conclusion would open the flood-gates to abuse by those of extravagant means, thereby undermining the “level playing-field policy” that underlies the legislation for controlling expenditure at elections, as Mr Martin Lee SC submits it would, let me say this : There is no set form for declaring a candidacy, as the Chief Justice has said in his judgment (§ 38 and 44); a Court of First Instance would be astute to detect abuse; where a person, by word or deed, has all but declared his or her candidacy, a court would have little difficulty in finding that he or she has come within the definition of “candidate” in s 2(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (ECICO). Persons may sigh and profess innocence, and do the opposite : Rather like Lord Byron’s Julia whose voice was “lost, except in sighs : A little still she strove, and much repented; and whispering ‘I will ne’er consent’ – consented”. Courts are not easily beguiled by such protestations.
The tribunal charged with the responsibility of determining issues arising from election petitions is the Court of First Instance of the High Court : see s 64(1) of the Legislative Council Ordinance, Cap 542. Here, it was Reyes J who had the responsibility of determining two primary issues, both of fact : (1) whether Dr Tam had effectively declared his candidacy at the time when the $220,000 expenditure was incurred and (2) whether the $220,000 were expenses incurred for the purpose of promoting his election as a candidate, in terms of s 2(1) of the ECICO. The trial judge determined both issues in Dr Tam’s favour. As to (1) above, Dr Tam was a prominent member of the IT community; the videos were, as the judge found, “frivolous and simplistic”, designed for self-promotion, more inclined towards “mere entertainment” than “political propaganda”. As to (2) above, “purpose” is an illusive concept. As Lord Wilson JSC observed in BBC v Sugar (No 2)  1 WLR 439 at 455H, “In ordinary conversation we frequently – no doubt unconsciously – refine our reference to purpose to a reference to dominant purpose. You ask me why I went out last night. I tell you that I went out in order to visit a friend in hospital. I do not add that I do so in order also to catch the post, to buy sausages and to fill my petrol tank – significant though those subsidiary purposes may have been for me.”
In determining purpose the court is entering a grey area where many factors have to be weighed. They may even collide. Where the facts of a case lie close to the borderline, two tribunals of fact could legitimately come to different conclusions. Take this very case. Whilst Reyes J found that expenditure in commissioning the videos was not for the purpose of promoting Dr Tam’s election in the functional constituency, Stock VP thought otherwise: And would have presumably agreed with Cheung JA in allowing the appeal, had he not put particular emphasis on the words “at or in connection with the election” in s 24(1) of ECICO, and found in Dr Tam’s favour on the question of time, thereby in effect drawing the line at the beginning of the election period or the announcement of candidacy, whichever is earlier.
What I have said above should, I apprehend, deter those who eventually become candidates from being too adventurous and extravagant before an election with regard to their expenses.
Justice Gleeson NPJ
I agree with the judgment of the Chief Justice.
Chief Justice Ma
For the above reasons, this appeal is dismissed. As to costs, the Court makes an order nisi in terms of para 84 above.
 Lord Bryon’s “Don Juan: Dedication: Canto II” 1819.
 Section 3(1) “Court” means the Court of First Instance.
Section 64(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.
 “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.” (Stock VP at para 105)
 s 24(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 ....”
Mr Martin Lee SC, Mr Hectar Pun and Mr Lee Siu Him, instructed by Ho, Tse, Wai & Partners, for the petitioner (appellant)
Mr Daniel Fung SC, and Ms Teresa Wu, instructed by DLA Piper Hong Kong, for the 1st respondent.
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