1988 No. MP2226
IN THE SUPREME COURT OF HONG KONG
Coram: Hon. Liu, Mayo and Jones, J.J. in Court
Dates of hearing: 27th February – 1st March 1989
Date of delivery of the judgment: 8th March 1989
J U D G M E N T
1. In 1985, a further step was taken towards the development of representative government in Hong Kong. Election was introduced to alimited number of seats in the Legislative Council.
2. In 1988, 26 were elected to the Legislative Council of whom 12 came from the electoral college constituencies and 14 came from thefuntional constituencies.
3. In these proceedings, the Court is called upon to adjudicate on a Legislative Council Election held on the 22nd September 1988 inthe Hong Kong Island (East) Electoral College Constituency. I shall call it “the said election”. Some 44 days later, on the 5th November1988, the said election was questioned by an election petition presented under section 29(1)(c) & (d) of the Legislative Council (Electoral Provisions Ordinance.
4. By an order dated the 12th January 1989, the Chief Justice directed that the election petition be entertained by three judges.
5. This is the first election petition presented. Two other election petitions of a similar nature are waiting in the wings.
6. At the said election, Mr Chan Ying-lun was declared by the returning officer Mr Fong Chi Wai, as duly elected by a majority of 21to 20. It was a contested election with two candidates. The other candidate nominated at the said election was Mr Desmond, Lee YueTai, who had the support of the minority vote of 20. In this election petition, Mr Lee is the petitioner, Mr Chan the 1st respondentand Mr Fong the 2nd respondent.
7. At the time of the said election, Mr Lee and Mr Chan were both elected members of the Eastern District Board. One Mr Chow Fung Cheungwas then an appointed member of the Eastern District Board. Also at the same time, Mrs Peggy Lam was an elected member of the WanchaiDistrict Board.
8. Mr Lee, Mr Chan, Mr Chow and Mrs Lam were all registered as electors in the Hong Kong Island (Eastern) Electoral College Constituencyfor the said election at which they all voted.
9. At the time of the said election, Mr Chanand Mrs Lam were on the panel of assessors under the Magistrates Ordinance.
10. After the coming into force of the Money Lenders Ordinance in 1980, an application for a money lender’s licence is heard by the licensing court. Prior to the 1st October 1988, the licensingcourt comprised a magistrate as the presiding member with two assessors. After the 1st October 1988, unless there is no objectionto an application by either the Registrar of Money Lenders or the Commissioner of Police, it shall be determined by the same threemembers, a magistrate “sitting with 2 assessors” as the licensing court. The assessors are drawn from the panel appointed under theMagistrates Ordinance.
11. In November 1980, the Registrar of the Supreme Court consulted persons on the panel of assessors under the Magistrates Ordinance as to whether they would be willing to sit as members of the licensing court. In November 1980, Mr Chan and Mrs Lam were among 137who accepted the invitation. They have both since sat on the licensing court.
12. At the time of the said election, Mrs Lam was also an adjudicator appointed under section 53F(2) of the Immigration Ordinance. Her last term was to expire on the 28th February 1989, but she resigned on the 6th October 1988.
13. As for Mr Chow, he was an accountant in the employ of the New Zealand Commission at the time of he said election.
14. In this election petition, Mr Lee seeks to unseat Mr Chan by reason of (1) Mr Chan’s appointment as an assessor under the Magistrates Ordinance, serving from time to time as an assessor on the licensing court and (2) Mrs Lam’s appointments as such an assessor and adjudicatoras well as Mr Chow’s employment with the New Zealand Commission.
15. Put on a legal basis, Mr Chan is said to have been disqualified from being nominated as a candidate at the said election by he allegedlyholding a “Public office” under section 21(1)(b) of the Legislative Council (Electoral Provisions) Ordinance.
16. Section 21(1)(b) of the Legislative Council (Electoral Provisions) Ordinance reads:
17. Mrs Lam is said to have been disqualified from holding the office of an elected member of the Wanchai District Boar and not entitledto vote at the said election by she allegedly holding “public offices” by virtue of section 15(1)(a) and 12(1) of the Legislative Council (Electoral Provisions) Ordinance.
18. Mr Chow is said to have been disqualified from holding the office of an appointed member of the Eastern District Board and not entitledto vote at the said election by he allegedly being “a salaried functionary” of the Government of New Zealand by virtue also of sections15(1)(a) and 12(1) of the Legislation Council (Electoral Provisions) Ordinance.
Section 15(1)(a) of the Legislative Council (Electoral Provisions) Ordinance is set out below:
19. Mrs Lam and Mr Chan are thus said to have been so disenfranchised at the said election by reason of their said alleged District Boarddisqualification stemming from section 19(1)(a) of the Electoral Provisions Ordinance and section 9(4)(d) of the District Board Ordinance respectively. Mrs Lam has been an elected District Board member, and Mr Chowhas been an appointed member. That accounts for the application of different sections.
20. Section 19(1)(a) of the Electoral Provisions Ordinance reads:
21. Section 9(4)(d) of the District Boards Ordinance reads:
22. Simply stated : Mrs Lam and Mr Chow are said to be disqualified on their respective District Boards and accordingly could not voteat the said Legislative Council Election on the 22nd September 1988.
23. What then is an office and what is a public office? The word “office” has, so said Buckley L.J. in the English Court of Appeal, awide variety of meanings. See Edwards v. Clinch  Ch.1 at p.5. In McMillan v. Guest  A.C. 561, at p. 566 Lord Wright observed:
24. It does not follow from these judicial observations that the ordinary meaning of the work “office” is obscure. “office” is not statutorilydefined, but its definition as given in the Oxford English Dictionary has been widely accepted. See Edwards”v. Clinch  A.C. 845 at 870 Letters A/B. I gladly allowed myself to be guided by it in the David, Yeung Fuk-kwong case, MP No. 1662 of 1988. Insofar asit is relevant, that dictionary meaning is:
25. Lord Bridge summed up the three essential characteristics in the Oxford English Dictionary definition as:
26. Lord Lowry expressed the view that “when we describe (a man) as the holder of an office, we are using the word ‘office’ not in itsordinary meaning but with a special meaning which the ordinary user of English would not recognise”. Nevertheless, the Law Lord regardedthis special meaning as being one of its ordinary meanings [not, be it noted, “meaning”]. Edwards v. Clinch, supra 870 Letters E/F – F/G.
27. If “holder of an office” is a limited version of the ordinary meaning of the word “office”, “holder of a public office” must haveeven a narrower scope. For the term “public officer”, one should be wary of Lord Goddard’s warning sounded in Beeston Stapleford U. D. C. v. Smith  1 K.B. 656 at p.663:
28. Returning to Edwards v. Clinch supra. in their Lordships’ House, decided by a majority of 3 to 2, in their dissenting speeches both Lord Bridge and Lord Edmund-Davieswould not accept the everyday understanding of the word “office” as would involve a degree of continuance or independent existence.See P.868 Letter H-p.869 Letter A; p.887 Letter H – p.888 Letter A. The word ”office” is, so analysed Lord Edmund-Davies, a properterm for transient posts ” ‘tailor-made’ for people possessing particular talents to discharge tasks of a non-recurring type.”
29. Lord Salmon’s attack at the proposed adaptation of the dictionary meaning of “office” in the context of revenue legislation reflectedthe significance he accorded to the nature of duties attached to a position.
30. It would be all the more important not to lose sight of the duties and functions performed in a “public office”, particularly inlegislation providing advisers or assistants to an authority.
31. For the present purpose, I can assume, without deciding, that the ordinary meaning of “office” would Involve no continuance or separateexistence. But should “Public office” or holder of “public office” be understood in the same sense?
32. In the affairs of government, a new office of emolument is not expected to be created when the matter could be conveniently disposedof without much ado. An office of emolument must be justified by need and in budgetary appropriation. In my view, an office of emolument,a public office, once created, must involve a degree of continuance or independent existence. That would seem to be one of the attributesof a public office in government. Some support for a stricter meaning when a word is further qualified may be derived from Re Chappel, 82 W.N. (Pt.1)(N.S.W) 53 at p.55 where the ordinary meaning of “emoluments” was rejected for the term “emolument of office”, thoughin an employer/employee relationship. In this case, it needs to be constantly remembered that the term under consideration is “publicoffice” in the sense of an “office of emolument under the Crown” and not simply “office”.
33. Both the members on the panel of assessors appointed under the Magistrates Ordinance and on the licensing court hold, in my view, not only offices but offices of a continued, not transient existence. Transient or permanent,what is sought to be examined is, whether they hold public offices as defined by law.
34. It can readily be appreciated, therefore, that the ordinary meaning of this everyday word “office” is of peripheral importance. Thiscourt is called upon to construe the term of “public office” which is statutorily linked to another term “public officer”. The link-uparises in this way:
35. What falls to be decided is not just any ordinary office but an office of a public officer, an office of emolument under the Crown,an office in the Hong Kong Government. The question more appropriate to ask is : would that public office paid by the Hong Kong Governmentinvolve a degree of continuance or independent existence? I have answered it in the affirmative. What then could constitute publicoffice within such a concept of permanence?
36. As long ago as 1941, in his Third Memorandum to the Select Committee of the House of Commons on Offices or Places of Profit underthe Crown, the Bright Honourable Sir Donald Somervell, Attorney Ceneral, reported as follows:
37. Sir Donald’s advice to the Select Committee summed up succinctly the meaning of our term of “public office”, “an office of emolumentunder the Crown”. He isolated for consideration appointment, control, dismissal and nature of duties, not merely duties. Earlierin time in 1828, Best C.J. spoke of a public officer in these terms : “What constitutes a public officer? In my opinion, every onewho is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise,is constituted a public officer”. Henly v. The Mayor of Lyme, 5 Bing 91 at 107; 130 ER 995, p. 1001. Then in 1914, the Court of Criminal Appeal dismissed counsel’s arguments on “public officer r” curtly : “A public officeris an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of afund provided by the public.” R. v. Whitaker,  K.B. 1283 at p.1296. From the Commonwealth, in 1960 we have a more recent affirmation of R. v. Whitaker by the Jamaica Court of Appeal, where an unpaid liaison officer corruptly accepted money for showing favour was held to be a holderof a public office and acting as such. Cyril Steward v. R, (1960) 2 W.I.R. 450.
38. Even for the everyday word “office” as opposed to the term “public office” in his dissenting speech in Edwards v. Clinch supra. at p.869 Letter E/F, Lord Edmund-Davies proposed as the proper test the nature of the function performed”.
39. Control including dismissal and nature of the duties attached are two of the attributes of the term “public office” derived as wellform its ordinary meaning as from features of the statutory context.
40. Persons appointed to the panel of assessors under the Magistrates Ordinance are not being requested to discharge duties or functions on the footing of regular judges or regular officials, like in the caseof David Yeung Fuk-kwong (M.P. No. 1662 of 1988) or Lim Ho Kwan (M.P. No.1540 of 1988). Assessors stand on their own appointments.Their attendance is voluntary. An assessor is first to be selected to sit by the Registrar of the Supreme Court. When his selectionfinally comes, he is quite free to decline to accept the arrangement. However, as Lord Bridge commented in Edwards v. Clinch supra. p.887 H – p.888A, there can be “no sensible reason which would make it appropriate” to draw a distinction for persons performingduties on an occasional basis “according to whether they hold a continuing nominal appoinment in which they act form time to time,or whether their names are on a panel from which they are chosen from time to time and appointed ad hoc to act on each occasion”.When an assessor attends and sits with the magistrate, he may not be called upon to give any advice. When asked to assist, he isnot obliged to make any contribution. His, refusal or indifference would be without sanction. He had not even been tested on thescope and extent of his supposedly liberal local knowledge. The magistrate would not be inhibited by the assessor’s insufficientor lack of expertise. This demand made of him as an assessor cannot be said to be in accord with the true nature of public duties.No control may be exercised over his attendance, his performance or even his assiduity. He cannot be restrained from absenting himselfin the course of the hearing. He cannot be sent away or dismissed. He cannot even he disciplined. Any unbecoming behaviour will nodoubt be noted. He may not be henceforth selected for sitting by the Registrar and when his term expires, he may not be reappointed.He has a right to give advice to the magistrate. It is not a right that he must exercise. Without him or in his absence, the magistratemay proceed or continue with the proceedings. The magistrate shall not be bound by any of his advice. It cannot be denied that thefees payable to assessors come out of the general revenue. They receive emoluments under the Crown in the right of the Hong KongGovernment. Assessors occupy a position to which some duties of a public character are attached. But it is in the nature of suchduties and the control of their exercise that the answer is to be found. Further, all the relevant provisions lay emphasis on thelikelihood of a dismissal. In the areas of duties, control and dismissal an assessor is decidedly not a public officer. He is notin a position of authority and he is not holding a public office.
41. The assessors appointed to the panel under the Magistrates Ordinance do not serve on any panel under the Money Lenders Ordinance. None has been established under the Money Lenders Ordinance. But once the concept of continuance is accepted for the courts at the magistracies and the licensing court, it really matters not.Mrs Lam and Mr Chan have signified their agreement to sit as assessors in the licensing court. The invitation to sit in a licensingcourt has not been accepted by the panel of assessors en bloc.
42. I turn next to consider the duties of assessors in the licensing court. The magistrate is the presiding member when he is sittingwith two assessors. Each has an equal vote. Evidently, the assessors cannot be expected to deliberate on questions of law or procedureor complex questions of regulations and forms. For matters of this nature, it would be difficult to visualize any situation wherethe assessors would feel confident or be prepared to override the views expressed by the presiding member, the magistrate. By a lateramendment in 1988, the magistrate’s ruling on matters of law shall bind the licensing, court. See proviso to section 10(4) Money Lenders Ordinance as it now stands. The assessors have been give equal vote and could technically stultify the efforts of the magistrate as the presidingmember. Privileges and immunities have now been explicitly extended to them as members of the licensing court. But in reality, thejudicial function they discharge is more of a consultative nature virtually confined to barely controverted facts. Whatever judicialrole they pay, it is reasonably clear that their functions are advisory. Similarly, there are no provisions for disciplinary measuresor dismissal. As could be seen, adjudicators who exercise far reaching powers in the Immigration Tribunal are inferentially excludedfrom the “public officer”. It would be difficult to accept as the legislative intent any scheme to clothe these assessors with themantle of public office.
43. After all, in this territory assessors are known to be advisers sitting with a court or an authority. To the man on the Wanchai tram,they are assistants to authorities but are not the authorities themselves. Assessors may be appointed to sit in the High Court. Seesection 53 of the Supreme Court Ordinance and 0.33 r.2 of the Rules of Supreme Court, whereby a trial may be held “by a judge withthe assistance of assessors”. Previously it was also possible to have a hearing “by a special referee with or without the assistanceof assessors”. The District Courts follow the same pattern. See section 58(l) District Court Ordinance which expressly provides that “the decision of the judge shall be the decision of the Court.” In Admiralty proceedings, a trial mayalso be had with an assessor or assessors. See 0.75 r.26, Rules of the Supreme Court. A marine court is “assisted by not less than2 assessors who shall be” masters or persons of nautical, engineering or other special skill or knowledge.” In cases involving cancellingor suspension of a master’s, mate’s or engineer’s certificate, assistance shall be given by no less than 2 assessors “with experiencein the British mercantile marine”. See Merchant Shipping Ordinance section 52(1) and (2) & Proviso. Persons also serve on the board of review for aircraft accidents as assessors “with aeronautical or aeronauticalengineering qualifications or some other special skill or knowledge”. See Regulation 13(1)(b) of the Hong Kong Civil Aviation (Investigation of Accidents) Regulations.
44. There are some 309 persons on the panel of assessors. I venture to think no one would be more surprised than our law makers, if ithad been suggested to them, many years hence, these provisions of the Magistrates Court Ordinance and Money Lenders Ordinance would be construed as creating some 309 more public offices in our government.
45. In conclusion, Mr Chan Ying Lun was not holding a public office by virtue of his appointment to the panel of assessors under theMagistrates Ordinance, sitting on occasions on the licensing court under the Money Lenders Ordinance. The same applies to Mrs Lam. It has to be borne in mind that in Mrs Lam’s case, her status as an elected member of the Wan ChaiDistrict Board is being challenged under sect ion 19 (1)(a) of the Electoral Provisions Ordinance. That paragraph ( a) disqualifies a person for being elected or being nominated as a candidate or holding office as such an electedmember if he holds any public office or having held such office has been dismisses therefrom.
46. Insofar as Mr Chan’s status as an elected member of the Eastern District Board can be call in question, no more need he said. Thesame principles would apply although Mr Chan’s District Board membership is not a live issue.
47. Since November 1980 Mrs Lam has also been an adjudicator of the Immigration Tribunal appointed under section 53F(2) of the Immigration Ordinance. Her term was to expire on the 28th February 1989, but she resigned on the 6th October 1988. Adjudicators are appointed to exercisethe jurisdication of the Immigration Tribunal. They may consult a member of panel of advisers to the Immigration Tribunal appointedby the Attorney General in the discharge of their statutory functions. The decision of the Immigration Tribunal on appeal againsta removal order shall be final. By section 51(l) of the Immigration Ordinance, the Governor may give directions to any public officer with respect to his exercise or performance of any powers, functions or dutiesunder that Ordinance. These directions must be complied with by the public officer to whom they are issued. By section 53(5), the Governor in Council may vary or revise any decision, act or omission of any public office taken, done or made under the Immigration Ordinance or substitute therefor his own decision or order. But the decision of the Immigration Tribunal on apeal against a removal order shallbe final, and the necessary implication is that adjudication may not be so directed. Their deliberations or conclusions cannot beinterfered with by the Governor or the Governor in Council; hence they are not public officer. Mrs Lam cannot be, therefore, in anyway affected in her capacity of an elected District Board member by she being an adjudicator under the Immigration Ordinance.
48. Mr Chow is a accountant in the employ of the New Zealand Commission. Is he a salaried functionary within the meaning of that termin section 9(4)(d) of the District Boards Ordinance? Is he disqualified as such from being appointed or holding office as an appointedmember of the Eastern District Board? “Functionary” is defined in Black’s Law Dictionary 5th Edn. as “a public officer or employee.An officer of a private, corporation is also sometimes so called.” It is an American law dictionary for “Definitions of Terms andPhrases of American and English Jurisprudence, Ancient and Modern”. The 5th edition was published in 1979. Black’s definition isconcise but without reference to any source. Oxford English Dictionary gives, in my view, a more authoritative treatment to “functionary”which is described as “one invested with a function; one who has certain functions or duties to perform; an official.” Mr Chow isnot an official of the New Zealand Government. He is an employee. If the Legislature had intended to include an employee, it couldhave easily said so. It would he absurd to suggest that section 9(4)(d) has the effect of barring a gardener a chauffeur who maybe an influential member of one of our labour unions or an in-house lawyer. I take a functionary as an official. Mr Chow does notfall within that category.
49. The petitioner’s arguments on alleged disqualifications of Mrs Lam and Mr Chow, have been overtaken by the provisions for time-barand validation of their acts done under the Electoral Provisions Ordinance and the District Boards Ordinance.
50. By section 26 of the Electoral Provisions Ordinance, an election shall be deemed to be good and valid unless it is questioned by an election petition within two month’s after the publicationof the list of elected persons. The time bar of two months is final and admits of no extension.
51. After an election, any acts done by an elected member may themselves be challenged under section 26 of the District Boards Ordinance.Again, there is a limitation of six moths from any particular act under complaint.
52. Under section 13 (1) of the Legislative Council (Electoral Provisions) Ordinance, elected members of the District Boards are entitled to be registered as voters at an election to the Legislative Council in theirrespective constituencies. Section 15(1) of the Legislative Council (Electoral Provisions) Ordinance disqualifies any registered elector from voting when he ceases to be a member of his District Board. In section 20 of the Electoral Provisions Ordinance a distinction is drawn between ceasing to be a member after an election and disqualification as a member at an election. Section26(2)(a) of the District Boards Ordinance enables the Court to declare that a member’s seat is vacant on a complaint that he hasacted as a member while disqualified for so acting. Thereupon, pursant to section 14(1)(e) of that Ordinance, the Chairman may publishin the Gazette a notification declaring the office of such a member as vacant. Reference is made to these provisions for the purposeof illustrating that insofar as Mr Lee complains of the disqualification of any registered elector to vote at the said election undersection 15(1)(a) of the Legislative Council (Electoral Provisions) Ordinance, there is no evidence that Mr Chan, Mrs Lam or Mr Chow, has ever ceased to be a District Board member.
53. None of the other provisions above has been invoked to call in question, as against these personalities, any alleged disqualifications(section 26 cap. 367) or impropriety in having acted as a member of the District Board while disqualified for so acting (section 26(1) Cap.366).
54. Insofar as it is founded on the alleged invalidity of the election of Mr Chan, Mrs Lam and Mr Chow to the respective District Boards,Mr Lee’s petition cannot succeed. These elections are now deemed to be good and valid. In these proceedings, the same could not bereopened; nor could they be legitimately made capital of.
55. Further, section 10 of the District Boards Ordinance renders valid and effectual the acts of these members of the District Boardsas if they had been qualified notwithstanding their want of qualification or disqualification PROVIDED that they had acted as suchmembers of the District Boards. Voting or purported voting at the said election, properly or improperly, was obviously an act donein the capacity of a District Board member qua a registered voter. I need not travel far for an example. One is found in Cyril Stewart v. R, supra at p.452 Letters D/E and I. In that case, an unpaid liasion officer to a District Committee corruptly received £7 for showing,favour. It was debated as to whether he was a public officer. The Jamaica Court of Appeal regarded the culprit as having acted inhis capacity of a liaison officer. It was observed that “to bribe that officer to act contrary to his duty (was) a criminal act”.Section 10 has, in my judgment, put a seal of validity on the votes cast by these personalities.
56. In conclusion, Mr Chan was not in any way disqualified by reason of his appointment to the panel of assessors under the Magistrates Ordinance, serving ad hoc in the licensing court constituted under the Money Lenders Ordinance. The validity of the elections of Mr Chan, Mrs Lam and Mr Chow to the respective District Boards s cannot now be impugned elsewhere,and the matter should not be ventilated in this Court. Moreover, voting, at the said Legislative Council election by Mr Chan, MrsLam and Mr Chow is valid and effectual under s.10 of the District Boards Ordinance.
57. The assertions of Mr Lee therefore wholly fail. Pursuant to section 35 of the Legislative Council (Electoral Provisions) Ordinance, subject to what counsel have to say this Court would certify its determinations as follow:
58. We make an order nisi for costs in favour of the 1st respondent. Mr Li for the 2nd respondent has very kindly informed us that theAttorney would not be seeking any order of coats for his effort to assist the Court on the interpretation of legislation in mattersof paramount constitutional importance.
59. This is and Election Petition. The Petitioner and the 1st Respondent were nominated as candidates in the Legislative Council Electionheld on the 22nd of September 1988.
60. They were both elected members of the Eastern District Board on the 10th of March 1988. It was in this capacity that they becamecandidates for nomination.
61. Hong Kong Island (East) Electoral College Constituency consists of members of the Eastern and Wanchai District Boards who are notmembers of the Urban and Regional Councils.
62. At the said election the 1st Respondent was elected to the Legislative Council. He received 21 votes and the Petitioner received20 votes. The 2nd Respondent was the Returning Officer.
63. The Petitioner filed the Petition on the 5th of November 1988 and amended it on the 1st of December 1988.
64. In the Petition the Petitioner is seeking a determination 1st Respondent was disqualified under Section 21 of the Legislative Council(Election Provisions) Ordinance Chapter 381 and that he was duly elected at the Election.
65. The complaint which is made by the Petitioner is two fold.
66. The first complaint is that the 1st Respondent held a public office in contravention of Section 21(1)(c above. He claimed that the 1st Respondent held a public office by virtue of his appointment as a Lay Assessor pursuant to Section7A(2) of the Magistrates Chapter 227.
67. The second complaint was that 2 of the members of the Electoral College Mrs. Peggy Lam and Mr. Stephen Chow who had cast votes atthe said election were disqualified from doing so. Mrs Peggy Lam who was an elected member of the Wanchai District Board was botha Lay Assessor and an Adjudicator of the Immigration Tribunal. This was contrary to the provisions contained in Section 19 (1) (a) of the Electoral Provisions Ordinance Chapter 367 which state:
68. The complaint against Mr. Chow is that he is a salaried functionary of the New Zealand Commission. This, it is claimed, is contraryto Section 19(1)(e) which excludes any person who is:
69. I will deal with the 1st complaint first.
70. The question which has to be considered is whether a Lay Assessor is the holder of a public office such as to come within the disqualificationcontained in Section 21(1) of Chapter 381.
71. Lay Assessors discharge two different types of duty. The first is that they sit with Magistrates and are entitled to give them advice.
72. It will be noted from this that there is a panel of Lay Assessors As and when their services are needed, they are invited by theFirst Clerk of the Magistrates Court to attend. The First Clerk extends the invitation by virtue of power delegated to him by theRegistrar, Supreme Court. The Lay Assessor’s function is a limited function. It is to advise Magistrates on local circumstances andconditions. The Magistrate is under no compulsion to accept any advice which is tendered and no statutory duties are imposed on LayAssessors. I have no doubt that at the very least there would be some moral obligation or duty for them to draw the Magistrates’attention to various aspects of proceedings before them, if they felt that this was necessary or desirable. Equally I have no doubtthat most if not all Lay Assessors would conscientiously perform their functions when they sit as Assessors and that their advicewould be of great assistance to Magistrates.
73. According to the affidavit evidence of Mr. Betts, the Registrar of the Supreme Court, Assessors would only sit a few times everyyear. There are at the present time 309 persons on the panel, of Lay Assessors.
74. The second function exercised by Lays Assessors is to sit on a Licencing Court when applications are made by persons applying fora Money Lenders Licence. The position concerning these functions s described by Mr. Betts in paragraphs 8 and 9 of his affidavit:
75. From this it will be seen that the Lay Assessors do assume an active role in the proceedings when hearing such applications.
76. I think that it could fairly be said that in each case the functions which are exercised by Lay Assessors are of a transient nature.Probably the duties which are performed in relation to the applications for Money Lending Licences are the most substantial and itis right to consider these in determining whether the functions exercised by Lay Assessors sufficient to constitute a public officesuch as is contemplated by Section 21.
77. I do not think that much difficulty arises concerning the construction of the section. Certainly I do not think it is necessary inthe context of this litigation to consider the background of the circumstances leading to the introduction of the legislation. Allthat we are required to do is to decide whether the duties and functions of Lay Assessors, as I have described them, are such asto amount to a public office.
78. The best Way of considering this is to have regard to how the courts have dealt with this question.
79. Best C.J. had this to say at p.1001 of Henly v. The Mayor of Lyme, 5 Bing 105-995:
80. In considering this passage it is necessary to bear in mind that Lay Assessors receive no financial reward for having their namesincluded in the panel of Assessors. The payment they receive whatever it is described as being, relates to the occasions when theyactually sit as Assessors.
81. In this connection some assistance can be derived from the judgment of Asprey J. at page 54 of Re Chapple 1964 82 WN Part I NSW 53:
82. One of the factors weighed by Asprey J. was the regularity of the payment. It is evident that the service of Lay Assessors is largelydependent upon the dictates of convenience and there is nothing in the evidence before us to suggest that there is any regularityin the attendances.
83. I have not doubt that when Lay Assessors do perform their duties they are discharging a public duty. The problem which arises isthe lack of frequency of their attendances.
84. This type of difficulty was considered in Edwards v. Clinch 1982 AC 845. In his speech at page 883 Lord Bridge said:
85. While I realize Lord Bridge was commenting on a rather artificial taxation point I am satisfied that the observations made do indeedhave application to the present case.
86. Assistance can also be derived from a consideration of other legislative provisions.
87. “Public Office” is defined in the Interpretation and General Clauses Ordinance Chapter 1. There it is said to mean … “any office or employment the holding or discharging of which by a person would constitutethat person a public officer”.
88. A “Pubic Officer” is treated synonymously with a Public Servant. The definition state ” ‘a Public Officer’ and ‘a Public Servant’mean any person holding an office of employment under the crown in right of the Government of Hong Kong, whether such office be permanentor temporary”.
89. There is nothing there which is at variance with any of the judgments I have referred to.
90. I think it is illuminating also to consider other situations where members of the Public perform statutory duties.
91. It is clear to me on considering Part IX of the Immigration Ordinance Chapter 115 as a whole that Adjudicators who sit on Immigration Tribunals are not regarded as being “Public officers”. His Excellencythe Governor is only empowered to give directions to Public Officers and is unable to give directions to Adjudicators. I am satisfiedthat this is a correct way of interpreting the legislation because any other interpretation would render the function of Adjudicatorsto be almost meaningless.
92. Also I can see no satisfactory reason in this context for differentiating the services of Lay Assessors from those of Jurors.
93. Both Lay Assessors and Jurors are drawn from Panels. They only perform their duties when they are selected to do so. The fact thatLay Assessors have been appointed to their Panel does not seem to me to materially affect the position.
94. I don’t think anyone has seriously suggested that all Jurors are “Public Officers”.
95. I will next consider the position of District Board members. Some of them are appointed. They perform a variety of duties and likeLay Assessors receive remuneration for their services. I am not aware of anyone contending that all appointed District Board membersare “Public Officers”.
96. Indeed in this connection Mr Denis Chang for the 1st Respondent very helpfully in a skeleton argument set out the relevant provisionsin The Regional Council Ordinance, The District Boards Ordinance and The Urban Council Ordinance and it is abundantly clear thata distinction is made between “Public Officers” and members of the various Boards or Councils.
97. Whatever criteria is adopted I can see no justification for regarding Lay Assessors as being ” Public Officers”.
98. Mr. Rogers for the Petitioner gave us what he described as being a graphical illustration of the illogical situation which wouldpertain if Lay Assessors are not regarded as being “Public Officers” He said that when they were discharging their duties applicationsfor Money Lending Licences they may be sitting with a Temporary Magistrate. They cast a vote in the same way as the Magistrate would.For all practical purposes they are assuming an identical role. It would accordingly be highly anomalous for the Magistrate to beregarded as a “Public Officer” and the Lay Assessors not to be so regarded.
99. I disagree with Mr. Rogers. When you consider they position of the Temporary Magistrate it is unrealistic to only have regard tothe functions he exercises when sitting on Money Lending Licence applications. You have regard to the totality if his duties. Whendong this I do not think that there is any anachronism.
100. However the position is regarded I am satisfied that Lay Assessors as such cannot be regarded as “Public Officers” so as to the provisionscontained in Section 21 of Chapter 381.
101. What Lay Assessors do when they sit in court with Magistrates or exercise their functions relating to moneylenders is to performa public service. The remuneration they receive is payment for this service. The Petition cannot succeed on the first ground.
102. I will now consider the second complaint.
103. Mr. Rogers places reliance upon the provision contained in Section 15(1) of Chapter 381. This reads:
(b) in the case of a functional constituency, has ceased to be an eligible person by reason of that person having ceased to be a personspecified in the third column of the Second Schedule.”
104. It is common ground that Mrs. Lam arid Mr. Chow’s names are in the second and third columns of the second Schedule referred to.
105. The question which has to be considered is whether they have ceased to be “eligible persons”.
106. It is noteworthy to observe that neither Mrs. Lam nor Mr. Chow have been made parties to this Petition. We are being invited to makedeterminations which will undoubtedly affect them and they have been given no opportunity of placing before us any representations.
107. Mr. Rogers informed us that the reason why “Mrs. Lam and Mr. Chow had not been made parties was that there was no provision for thisunder the legislation.
108. It may well be the case that it is no accident that the legislature has not provided for this. The Petitioner can only succeed onthe second ground if he is allowed to attack the title of Mrs. Lam and Mr. Chow to cast their votes.
109. It is perhaps not surprising that no provision is made for this under the legislation. I say this because there is a clearly definedalternative route for such an attack to be mounted. I refer to Part VI of the Electoral Provisions Ordinance Cap.367.
110. The Petitioner is precluded from proceeding under Part VI by virtue of the provisions contained in Section 35 of the Ordinance. This section provides a time bar of 2 months.
111. The Petitioner has no prospect of success in lodging a Petition to disqualify either Mrs. Lam or Mr. Chow as District Board members.
112. Before us Mr. Rogers submitted that he was not attempting to disqualify either Mrs. Lam or Mr. Chow. All that he was seeking to dowas to establish that they had had no right to cast the votes they had cast at the election.
113. I am afraid that this will not do. Mrs. Lam and Mr. Chow are either disqualified or they are not disqualified. There is no provisionmade for a half way house. In the absence of an election Petition being successful under Part VI Mrs. Lam and Mr. Chow remain membersof the Board and are fully entitled to cast votes as is provided for in the legislature.
114. The position of Mrs. Lam and Mr. Chow is further reinforced by the provisions contained in Section 26 of Chapter 367 which reads as follows:
115. Even if this were not the case I am satisfied that Section 10 of the District Board Ordinance Chapter 366 which reads:
“10. The acts and proceedings of any member acting as such shall, notwithstanding his want of qualification or disqualification, beas valid and effectual as if he had been qualified.”
would cover the position.
116. For the reasons I have given I am satisfied that the Petitioner cannot succeed on the second ground. This being the case this Petitionmust be dismissed.
117. Since the Legislative Council (Electoral Provisions) Ordinance came into operation on the 6th April 1985, there has been a limited right of election to some of the seats in the Legislative Councilfrom Electoral College Constituencies and Functional Constituencies. One of the Electoral College constituencies is the Hong KongIsland (East) Electoral College constituency which consists of all the appointed and elected members of the Eastern District Boardand the Wanchai District Board with the exception of members of the Urban Council and Regional Council. The petitioner Mr DesmondLee Yu- tai (Mr Lee) and the 1st respondent Mr Chan Ying-lun (Mr Chan) are elected members of the Eastern District Board. Mr ChowFung-cheun (Mr Chow) is an appointed member of the Eastern District Board whilst Mrs Peggy Lam (Mrs Lam) is an elected member ofthe Wanchai District Board.
118. Mr Lee and Mr Chan were the only nominated candidates for the constituency of the Hong Kong Island (East) Electoral College constituencyfor the Legislative Council election that was held on the 22nd September 1988. In their capacity as District Board members, Mr. Chowand Mrs Lam were registered electors of the constituency at the election and voted. Mr Chan was declared to be the winner of theelection by a majority of 21 votes to 20.
119. By an election petition presented on the 5th November 1988 as amended by an order of Nazareth J. made on the 29th November 1988,Mr Lee seeks al declaration that Mr Chan was, at the time of the election, by virtue of section 21(1)(b) of the Legislative Council(Electoral Provision) Ordinance, disqualified from being nominated as a candidate as he was the holder of a public office being anassessor appointed under the Magistrates Ordinance. It is also alleged that Mr Chow was ineligible to vote by virtue of section 9(4)(d) of the District Boards Ordinance for he wasemployed as a salaried functionary by the New Zealand Commission whilst Mrs Lam was disqualified under section 19(1)(a) of the Electoral Provisions Ordinance as she was the holder of a public office, viz an adjudicator of the Immigration Tribunal and an assessor appointed under the Magistrates Ordinance. Mr Lee therefore contends that he should have been elected as the member for the constituency instead of Mr Chan or, in the alternative,that the election should be declared void.
120. Section 21(1) (b) of the Legislative Council(Electoral Provisions) Ordinance provides:-
Section 9(4)(d) of the District Boards Ordinance provides :-
“Public office” is defined in section 3 of the Interpretation and General Clauses Ordinance as follows:-
“Public Officer” and “Public Servant” are defined in the same section as follows:-
Section 19(1)(a) of the Electoral Provisions Ordinance reads:-
121. The system of assessors was introduced in 1978, the enabling provision being section 7A of the Magistrates ordinance which provides:
122. The object of the assessor system, which is purely voluntary and depends upon the availability and willingness of the persons selectedtosit, is to provide advice to a magistrate from a local member of the community who understands Cantonese and English. The role ofthe assessor is purely advisory and the magistrate is not obliged to accept any advice that may be given. An assessor has no powerto participate in the proceedings so that he has no power in the decision making process. On the other hand, both an adjudicatorunder the Immigration Ordinance and a member of the Licensing Court have a vote. Under the Immigration Ordinance, two adjudicators sit to hear appeals under section 53A of the Ordinance against removal orders made by the Director or Deputy Director of Immigration. The Licensing Court consists of amagistrate and two assessors who are concerned with licensing applications under the Money Lenders Ordinance. In the Licensing Court, the assessors have a right to participate in the proceedings with the result that they can exercise a majorityvote against the magistrate. Assessors are paid $50 per clay for each day be sits whilst a member of the Licensing Court will receive$450 per day. An adjudicator in the Immigration Tribunal receives $250 per day.
123. Mr Chan was selected to be placed upon the panel of assessors in 1980 and has since sat on 26 occasions whilst Mrs Lam, since shewas appointed to the panel in 1979, has sat on 28 occasions, so that both she and Mr Chan have sat on an average of about three timesa year. Mrs Lam has sat as an adjudicator of the Immigration Tribunal on average about ten times a year since 1985 and received $250on each occasion. Both Mr Chan and Mrs Lam have also sat in the Licensing Court, Mr Chan having sat for 12 days since 1981 and MrsLam 9 days since the same year. It is therefore clear from the evidence that attendances are only occasional.
124. With regard to the definition of a “public officer” a number of authorities were cited by counsel. However, in my judgment, the meaningis perhaps best encapsulated in Edwards v. Clinch  A. C. 845 where the House of Lords were concerned with a tax case. The headnote in that case reads as follows:-
125. A public officer is not disqualified unless he is in receipt of emoluments under the Crown in right of the Government of Hong Kong.The word “emolument” was considered in Re Chapple (1964) 82 W.N. 53 where it as held that “emoluments of office” in the definition of “salary” in s.3(1) of the Superannuation Act 1916-1963 meant emolumentsof office received by a person who is an employee from his employer and as a payment arising out of or in connection with dutiesperformed in the course of that employment.
126. The test to be adopted to determine whether a person holds a public office depends, in my judgment primarily upon the duties thathe is required by law to perform in respect of which conditions are attached including that of dismissal. The position of an assessoror a member of a Licensing Count, or an adjudicator of the Immigration Tribunal entails no duties in the sense that there is a legalobligation to carry out those duties at all, for the person’s decision to sit is purely voluntary. The position held is not a publicoffice, but amounts to a public service for the benefit of the community. The effect of the appointment is to place the name of theperson selected upon a panel from whom an assessor or an adjudicator is selected, but that until that person actually sits, he doesnot hold the position of an assessor or adjudicator. An analogy can be drawn with a juror who is on the list of jurors. He sits asa juror when be has been selected, but after he has completed his period of jury service, he does not remain a juror, but revertsto the position that he holds in everyday life. The functions of an assessor or adjudicator are wholly inconsistent with the dutiesof a public office. The payments received are not emoluments of office, but honoraria or payments in the nature of an allowance fortravelling expenses in recognition of the service performed. Accordingly I am quite satisfied that the positions held by Mr Chanand Mrs Lam are not public off ices.
127. When the candidacy of a person to a District Board is challenged, proceedings on the ground of disqualification may be institutedin the High Court under section 26 of the District Boards Ordinance provided that such proceedings are instituted within six monthsfrom the date that he acted. No such proceedings within the time limit were taken against either Mr Chow or Mrs Lam. Further, bysection 26 of the Electoral Provisions Ordinance, an election to a District Board is presumed to be valid unless an election petition is presented under section 35, within two months in the case of an election which is not contested after the publication by the returning officer of the list ofpersons elected, or, if the election was contested, after the declaration by the returning officer of the result. As no electionpetition was presented within the time limited, Mr Chow and Mrs Lam were deemed to have been validly elected. No objection can nowbe raised to their entitlement to vote at the Legislative Council election. In the circumstances it is unnecessary to consider whetherMr Chow was salaried functionary under section 9(4)(d) of the District Boards Ordinance.
128. The petition will therefore he dismissed.
Mr Anthony Rogers, Q.C. & Mr Poon Siu-chor, instructed by Lo, Wong & Tsui, for the Petitioner.
Mr Denis Chang, Q.C. and Mr Benjamin Yu, instructed by Kao, Lee & Yip, for the 1st Respondent.
Mr Andrew Li, Q.C. & Mr Bernard Whaley, instruct by crown Solicitor, for the 2nd Respondent.