HKSAR v. Chan Yu Ming

[English Translation － 英譯本]

HCMA 294/2021

[2021] HKCFI 3054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 294 OF 2021

(ON APPEAL FROM KTCC 941 OF 2021)

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Before:  Hon Barnes J in Court

Date of Hearing:  28 September 2021

Date of Reasons for Judgment:  20 October 2021

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REASONS FOR JUDGMENT

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A.  Introduction

1.The Appellant was charged with one count of Failing to file an election return in accordance with Section 37 of the Elections (Corrupt and Illegal Conduct) Ordinance, in contravention of Section 38 of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554, Laws of Hong Kong. The Appellant was convicted by Magistrate TO Ho-Shing (“the Magistrate”) of Kwun Tong Magistracy and sentenced to 6 months' imprisonment. The Appellant appealed against sentence.

2.Upon hearing, I allowed the appeal, quashed the sentence of 6 months' imprisonment, and substituted the sentence with one that enabled the Appellant to be released forthwith. The following are my reasons.

B.  Facts of the Case

3.The Magistrate stated the facts of the case in his Reasons for Sentence as follows:

"2. The defendant was a candidate for the Pak Nga Constituency of Kwun Tong District in the 2019 District Council Ordinary Election (“the Election”).

3. On 11 October 2019, the defendant submitted a Nomination Form for Election to the Registration and Electoral Office (“REO”). Having received the defendant's Nomination Form, the REO provided the defendant with a Candidate Information Booklet to inform and remind him of his responsibilities as a candidate under the relevant electoral legislation, including that he shall, in accordance with section 37(1), (1F) and (1G) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) (“the Ordinance”), within 30 days after the date of publication of the election result in the Gazette, submit a "Return and Declaration of Election Expenses and Election Donations" (Election Return) to the REO. The Information Booklet [contains] a "Guide to Returns and Declarations of Election Expenses and Election Donations", a blank election application, a "Memorandum of Matters to be done for Candidates" and other documents. Each of the above documents is accompanied by words of reminder notifying candidates that the Election Returns must be lodged with the REO in accordance with Section 37 of the Ordinance. In addition, the "Memorandum of Matters to be done for Candidates” also reminds candidates that they are required to submit the Election Return even if they have not incurred any election expenses or received any election donations.

4. On 12 October 2019, the defendant appointed CHOI Yat-Sing (“Mr. CHOI”) as his election agent in that election. The Election was held on 24 November 2019. The defendant was not elected. The results of the Election were gazetted on 29 November 2019, so the statutory deadline for candidates to submit their Election Return was 29 December 2019 (“the Deadline”).

5. Miss POON Hiu-Wai, Cadence (“Miss POON”), an Electoral Officer of the REO, sent an email to the email address provided by the defendant on the Nomination Form on 2, 20 and 28 December 2019 respectively, reminding him of the Deadline for submitting the Election Return. Miss POON did not receive any email informing her that the email she sent could not be delivered to the defendant. On 24 December 2019, Miss KWONG Ka-Wai, an Electoral Assistant of the REO, successfully called the defendant and reminded him of the Deadline.

6. The REO had not received the defendant's Election Return before the expiration of the period. On 15 January 2020, the REO referred the matter to the Independent Commission Against Corruption (ICAC) for investigation.

7. The defendant was interviewed under caution on 15 September 2020. During the interview, the defendant stated that he was a software engineer by profession. He admitted that he was fully aware of the requirement to submit the Election Return with the REO. Since he was a candidate for the 2015 District Council Ordinary Election and the 2016 Election Committee Subsector Ordinary Election, he had filed Election Returns for those elections. The defendant claimed that he and Mr. CHOI had completed the Election Return in the park and he had entrusted Mr. CHOI to submit the Election Return on his behalf. However, he failed to declare under oath that the information on the Election Return was correct as required by the Ordinance, so he believed that he had not duly completed the Election Return. He agreed that he has not checked with Mr. CHOI to see whether he has submitted the Election Return before the Deadline or taken other actions to ensure that the Election Return had been submitted to the REO by the Deadline. He estimated that he has incurred election expenses of about $13,000. He never received any election donation.

8. During the interview with ICAC officers, Mr. CHOI stated that he had never received any instruction to submit the Election Return for the defendant, and he had no impression that he had done so.

9. The defendant now admitted and accepted that he had failed to submit the Election Return in accordance with Section 37 of the Ordinance.

C.  Mitigation

4.The Magistrate stated the submission in mitigation of sentence in his Reasons for Sentence as follows:

“10. In the mitigation, counsel on behalf of the defendant pointed out that the defendant was 41 years old, born in Hong Kong, and had no criminal record. He had received tertiary education and worked as a software design engineer, earning $29,000 per month. He contributed $4,000 per month to support his retired parents.

11. The defendant's background report states that he has filed for divorce from his ex-wife in mid-2018. The Defence said that the divorce proceedings have not yet been completed. The defendant and his ex-wife have two sons aged eight and ten. The defendant is currently living with his girlfriend and her two-year-old daughter. Since the defendant's ex-wife and his current girlfriend do not work, the defendant needs to pay for the monthly expenses of the three children and maintenance to his ex-wife. The Defence said that the defendant's girlfriend has been a chronic patient of depression. Due to the above reasons, coupled with the need to pay for the property’s monthly mortgage, the defendant was heavily laden at the material time.

12. The Defence argued that if the defendant was imprisoned for this case, those who depended on him would be hard hit.

13. The Defence said that the defendant relied on a volunteer surnamed CHOI in the election project. He trusted him in his abilities and appointed him as an election agent. The Defence accepted that the defendant understood the requirements of the law in question, but several weeks before the election, he felt mentally pressured and needed to focus on handling the situation of his ex-wife and children. In the end, the election team also disbanded on its own. The defendant relied on Mr. CHOI to complete the rest of the election process. Unfortunately, after the Election, the defendant was dismissed by his employer. Due to the heavy financial burden on the defendant, he was greatly troubled and confused and failed to complete the relevant requirements of the law in question.

14. During the remand, the defendant entrusted a lawyer to fill out the Return required by the regulations involved in the case. (The court noted that the defendant did not sign the Return.)

15. The Defence said that the defendant felt sorry for his own fault, which caused additional follow-up work to the ICAC and the staff of the REO. (The court was of the view that the focus of the present case was not that the ICAC or the REO staff needed to follow up, but that the defendant’s conduct made it impossible for them to follow up, to verify whether the defendant’s election expenses exceeded the upper limit, or whether the defendant had all his election expenses clearly explained.)

16. Finally, the Defence relied on the mitigation letter and urged the court for leniency in sentencing.

D.  Reasons for Sentence

5.The Magistrate stated his reasons for sentence in his Reasons for Sentence as follows:

“17. Whether Hong Kong's elections were clean, fair and just is not only a matter for Hong Kong but also one for the respect of the international community is a matter that the Defence had no objection to. In addition, apart from the Return declared by the candidates, were there any other channels or methods to monitor the funding or donations received by the candidates, and whether they had exceeded the upper limit? Or whether the candidates had truthfully explained all the donations and so on? The Defence did not propose any other feasible channels or methods of monitoring.

18. The court was of the view that the REO had an absolute right to expect all candidates to be clearly aware of their legal responsibilities, carefully understand all the legal requirements of the running for the election, and the REO also had the right to expect that all candidates had basic integrity and would practicably fulfil their responsibilities by completing the Return. The court further believed that this case involved an open and large-scale election, and all voters should be able to expect that the candidates had personal integrity and the ability to basically satisfy all the legal requirements of the candidates, and during their term of office, safeguarded the interests of the society and voters.

19. The defendant, a software engineer, agreed in the present case that the REO had handed over the Information Booklet to him, reminding him of the relevant laws to run for the Election, and the need to, within 30 days after the date of publication of the election result in the Gazette, submit a "Return and Declaration of Election Expenses and Election Donations" to the REO. When the defendant failed to file the Return within the time limit, the REO sent 3 emails to remind him to do so on three different days. Yet, at the conclusion of the present case, the defendant had still failed to fulfil this statutory responsibility required of him as a candidate for the election.

20. Under caution, he frankly admitted that he knew the requirement of making the declaration. He argued in defence that he had entrusted others to handle it. The court did not accept his explanation because it was the statutory declaration requirement for him to complete it personally and make the relevant declaration.

21. The court was of the view that the present case did not only involve public interest, but a "significant" public interest. The reason was that the elections in Hong Kong, whether they were clean, fair and just, was a matter of concern to the international community and must be respected by the international community. Therefore, the defendant's personal circumstances and backgrounds did not constitute much weight in sentencing. The court was of the view that the case did not involve any humanitarian grounds which warranted a mitigation in sentence.

22. Generally speaking, in any criminal case, if the defendant was sentenced to imprisonment, his family would certainly be affected. The court was of the view that this did not constitute a significant ground for mitigation since the case involved significant public interest.

23. A series of past sentencing information provided by the Prosecution to the court showed that there had been very few cases of this nature in the past; however, the court was of the view that one case involving significant social interests was already too many. Furthermore, it could also be seen from the past precedents from 2009 to January 2020 that in the latest case, the defendant pleaded guilty and was sentenced to a community service order of 100 hours. This clearly showed that the court had started to pay attention to this type of case.

24. The court held that for this type of case, the sentence must be of deterrence. In the present case, due to the criminal conduct of the defendant, it was still uncertain whether the Election involved was completely honest, fair and just.

25. The appropriate starting point for sentence is nine months’ imprisonment. The defendant pleaded guilty to the charge, received a one-third discount and was sentenced to six months’ imprisonment. Since this case involved major social interests, suspended sentence was not appropriate. The sentence must be enforced forthwith. "

E.  Grounds of Appeal

6.Mr. WONG, the Appellant’s counsel, raised three grounds of appeal to show that the sentence was excessive.

7.First ground of appeal: The Magistrate wrongly deviated from the past court sentences for similar charges [in the information provided by the Prosecution], which were in general non-custodial sentences such as fines or community service orders.

8.Second ground of appeal: The Magistrate overemphasized the public interests involved in the charge and the deterrent effect of the sentence but had not fully considered all the circumstances in which the Appellant committed the charge.

9.Third ground of appeal: The Magistrate overemphasized that the Appellant had still not yet fulfilled his "legal responsibilities as an elector" in completing the Return to the REO even by the time when the court was dealing with the case.

F.  Discussion & Analysis

10.Summing up all the grounds for appeal, the Appellant’s complained that the Magistrate failed to thoroughly consider the Appellant’s culpability and sentenced him to an excessive term of imprisonment.

11.I fully agree with the Magistrate that the charge in the present case involved significant public interests. Although the past sentences were all non-custodial (fines or community service orders), the Magistrate was still right to consider passing a custodial sentence on the Appellant.

12.Notwithstanding this, I still have to consider all the circumstances of the present case to consider whether the 6 months' imprisonment was manifestly excessive.

13.Since from the Admitted Facts, it was unclear as to whether Mr. CHOI had received the relevant documents from the Appellant, I requested the Appellant and the Respondent to assist me in this regard.

14.Having reviewed Mr. CHOI’s written statement and the Appellant's record of interview under caution, both parties informed me that according to the Appellant, he handed over the relevant documents (including election expenses and donation receipts) to Mr. CHOI. However, Mr. CHOI’s statement stated that he had returned all the documents to the Appellant after the polling day, but he had forgotten the exact date. Mr. CHOI had no impression of helping the Appellant to keep any documents related to election expenses or donations. In other words, Mr. CHOI's statement did not show what the Appellant said was a lie. Furthermore, Mr. CHOI was only a volunteer who offered help to the Appellant and he had no more impression of the incident.

15.Although the Magistrate had asked whether the Appellant had attempted to file the election Return after the "time limit", I do not see that the Magistrate had taken this aspect into consideration.

16.I have taken into account that the maximum penalty stipulated by the law was one year's imprisonment. The starting point of 9 months’ imprisonment was almost at the highest end of the scale. Judging from the facts of the present case, particularly that the Appellant had difficulties in his families, I am of the view that the starting point of 9 months’ imprisonment was manifestly excessive.

17.Before the Appellant was granted bail pending appeal, he had already served 54 days in prison. Calculated on the basis of the Appellant's good behaviour in prison, having served for 54 days was equivalent to 81 days’ imprisonment.

18.Based on the Appellant's guilty plea, he was entitled a one-third discount in the sentence. The sentence of 81 days’ imprisonment is equivalent to taking the starting point of the sentence at 121.5 days, which is almost 4 months.

19.In my opinion, based on the facts of the present case, a starting point of 4 months’ imprisonment is appropriate. Since the Appellant had already served 54 days in prison before being granted bail pending appeal, which was equivalent to a sentence of 81 days’ imprisonment. I am of the view that it is not necessary for the Appellant to continue to serve anymore sentence.

G.  Conclusion

20.Based on the above reasons, I allowed the Appellant's appeal against sentence, quashed the sentence of 6 months’ imprisonment, and substituted with a sentence of a term of imprisonment that enabled him to be released forthwith.

Ms. Irene FAN, Senior Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the Respondent.

Mr. WONG Po-Wing, instructed by Messrs. O Tse & Co., for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.