YU CHI SHING PAUL v. TIN PING ESTATE PROPRIETOR CONCERNMENT ASSOCIATION AND OTHERS

YU CHI SHING PAUL v. TIN PING ESTATE PROPRIETOR CONCERNMENT ASSOCIATION AND OTHERS

Court found no credible evidence that Or authorized the Takungpao publication; the statements in Or's leaflets were not materially false or misleading for the purposes of s26 given the factual context and therefore did not contravene s26; s26(4) defence is available in election petitions and was made out in respect of one reasonable meaning; the Association's leaflet was not shown to be generally prevalent under s49(1)(a)(iii); accordingly Or was duly elected and the petition failed.

Citation
YU CHI SHING PAUL v. TIN PING ESTATE PROPRIETOR CONCERNMENT ASSOCIATION AND OTHERS
Parties
Petitioner: Petitioner; 2nd Respondent (returned Candidate): Or; 3rd Respondent: 3rd Respondent
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 December 2012
Case Number
HCAL8/2012
Procedural Posture
Election Petition / Judgment (trial Concluded)
Outcome
Petition dismissed; returned candidate (Or) found to have been duly elected
Legal Topics
Illegal Conduct Under ECICO, Election Petition Grounds Under DCO S49, False Statements (s26) and S26(4) Defence, General Prevalence Doctrine
Source Language
EN
Electoral Law Criminal Law Administrative Law Illegal Conduct Under ECICO Election Petition Grounds Under DCO S49 False Statements (s26) and S26(4) Defence General Prevalence Doctrine

Case Brief

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Parties

Petitioner

Petitioner

Or

2nd Respondent (returned Candidate)

3rd Respondent

3rd Respondent

Procedural Posture

Election Petition / Judgment (trial Concluded)

Legal Issues

  1. 1 Whether the returned candidate (Or) engaged in illegal conduct under s26(2) ECICO by publishing materially false or misleading statements
  2. 2 Whether the newspaper Takungpao publication was authorized by Or and thus attributable to her
  3. 3 Whether the Tin Ping Estate Proprietor Concernment Association engaged in illegal conduct under s26(1) ECICO and whether that conduct was generally prevalent under s49(1)(a)(iii) DCO

Ratio Decidendi

Court found no credible evidence that Or authorized the Takungpao publication; the statements in Or's leaflets were not materially false or misleading for the purposes of s26 given the factual context and therefore did not contravene s26; s26(4) defence is available in election petitions and was made out in respect of one reasonable meaning; the Association's leaflet was not shown to be generally prevalent under s49(1)(a)(iii); accordingly Or was duly elected and the petition failed.

Court Disposition

Petition dismissed; returned candidate (Or) found to have been duly elected

Orders

  • Costs order nisi: Petitioner to pay costs of Or and the 3rd Respondent, to be taxed if not agreed
  • Copy of judgment to be provided to the Director of Public Prosecutions as a report pursuant to s55(7) DCO identifying the Association as the specified person