LEE HIN LONG (TIMOTHY LEE) v. SECRETARY FOR JUSTICE

LEE HIN LONG (TIMOTHY LEE) v. SECRETARY FOR JUSTICE

The court held that "consented in writing" under s27(1A) ECICO must be a single standalone written consent document and cannot be inferred from chains of WhatsApp/Telegram/Facebook messages or composite correspondence; applying the criminal-equivalent standard of proof, the court found R1 lacked prior written consent for S6 and S7 and that the failures were reckless rather than inadvertent, so R1 failed to satisfy the statutory tests for relief under s31 ECICO and s107 EACR; accordingly R1's election was invalid and his office declared vacant.

Citation
[2021] HKCFI 779
Parties
Petitioner / Intervener (hcmp): Lam Pok (Jimmy); 1st Respondent / Applicant: Lee Hin Long (Timothy); 2nd Respondent (returning Officer): Franco Kwok; Respondent (hcmp): Secretary for Justice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 March 2021
Case Number
HCMP1183/2020
Procedural Posture
Election Petition (hcal 247/2020) and Originating Summons (hcmp 1183/2020) / Judgment (25 March 2021)
Outcome
Relief under s31 ECICO and s107 EACR refused; election of Lee Hin Long declared void; Lee Hin Long ceases to be elected member and the office is vacant.
Legal Topics
Namedropping / False Claim of Support, Written Consent Requirement, Relief Under S31 ECICO, Relief Under S107 EACR, Statutory Interpretation of "consented in Writing"
Source Language
EN
Electoral Law Administrative Law Criminal Law (election Offences) Civil Procedure Namedropping / False Claim of Support Written Consent Requirement Relief Under S31 ECICO Relief Under S107 EACR +1 more

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Parties

Lam Pok (Jimmy)

Petitioner / Intervener (hcmp)

Lee Hin Long (Timothy)

1st Respondent / Applicant

Franco Kwok

2nd Respondent (returning Officer)

Secretary for Justice

Respondent (hcmp)

Procedural Posture

Election Petition (hcal 247/2020) and Originating Summons (hcmp 1183/2020) / Judgment (25 March 2021)

Legal Issues

  1. 1 Whether publication of election advertisements including names of supporters without prior written consent engaged illegal conduct contrary to s27(1) ECICO
  2. 2 Whether "consented in writing" under s27(1A) ECICO may be satisfied by chains of messages or composite documents
  3. 3 Whether R1 obtained prior written consents before publication for each of the seven named supporters

Ratio Decidendi

The court held that "consented in writing" under s27(1A) ECICO must be a single standalone written consent document and cannot be inferred from chains of WhatsApp/Telegram/Facebook messages or composite correspondence; applying the criminal-equivalent standard of proof, the court found R1 lacked prior written consent for S6 and S7 and that the failures were reckless rather than inadvertent, so R1 failed to satisfy the statutory tests for relief under s31 ECICO and s107 EACR; accordingly R1's election was invalid and his office declared vacant.

Court Disposition

Relief under s31 ECICO and s107 EACR refused; election of Lee Hin Long declared void; Lee Hin Long ceases to be elected member and the office is vacant.

Orders

  • Declare that Lee Hin Long was not duly elected and that his office as District Councillor for To Kwa Wan South is vacant
  • Refuse relief under section 31 of the Elections (Corrupt and Illegal Conduct) Ordinance and section 107 of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulation