Secretary for Justice v. Li Wai Man and Others

[English Translation – 英譯本]

CAAR 20/2021

[2022] HKCA 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 20 OF 2021

(ON REVIEW FROM DCCC 707/2019)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court):

Introduction

1.There were initially fourteen defendants and fourteen charges in the present case. The six respondents (R1, R2, R3, R4, R5 and R6) were respectively the 1^st, 2^nd, 3^rd, 5^th, 6^th and 9^th defendants (D1, D2, D3, D5, D6 and D9), who pleaded guilty to Charge 1 “conspiracy to engage in corrupt conduct at an election by offering an advantage to others”[1] (against R1, R4, R5 and R6), Charge 4 “conspiracy to defraud”[2] (against R1, R2, R3 and the 4^th defendant (D4)), and Charge 5 “engaging in corrupt conduct at an election by accepting an advantage”[3] (against R4).

2.On 22 October 2021, District Judge Katherine Lo (the judge) sentenced them all to immediate imprisonment and ordered the advantage involved be paid to the court in the amounts as follows:

Charges	Respondents	Terms of imprisonment and monetary amounts (where applicable)
[1] conspiracy to engage in corrupt conduct at an election by offering an advantage to others	R1(D1)	8 months and 18 days
	R4(D5)	7 months
	R5(D6)	3 months and 12 days ($1,000)
	R6(D9)	3 months ($1,000)
[4] conspiracy to defraud	R1(D1)	12 months
	R2(D2)	8 months
	R3(D3)	7 months
[5] engaging in corrupt conduct at an election by accepting an advantage	R4(D5)	2 months ($1,000)

The judge also ordered that R1 and R4, who were sentenced to two terms of imprisonment, have their respective prison terms to run wholly concurrently. The overall sentences received by the six respondents were as follows:

Charges	Respondents	Final terms
[1] + [4]	R1(D1)	12 months
[4]	R2(D2)	8 months
[4]	R3(D3)	7 months
[1] + [5]	R4(D5)	7 months
[1]	R5(D6)	3 months and 12 days
[1]	R6(D9)	3 months

3.The applicant was dissatisfied with the sentences (limited to the parts involving imprisonment), considering them manifestly inadequate and wrong in principle, and applied to the Court of Appeal for leave to review the sentences pursuant to section 81A, Criminal Procedures Ordinance, Cap 221 of the Laws of Hong Kong. Leave was granted on 25 November 2021.

4.On 20 May 2022, after a hearing, this Court allowed the applicant’s application and substituted the six respondents’ respective sentences with the following terms: imprisonment of 23 months (R1), 20 months (R2), 15 months (R3), 11 months (R4), 10 months (R5) and 10 months (R6).

5.By then, R2 to R6 had finished serving their prison terms, and R1’s earliest date of discharge would be 22 June 2022.

6.Here are our reasons for judgment.

Relevant charges

7.Charge 1alleged:

“ R1, R4, R5 and R6, between the 14^th day of April 2016 or thereabout and the 4^th day of September 2016, both dates inclusive, in Hong Kong, conspired together and with other persons unknown, to engage in corrupt conduct at the 2016 Legislative Council General Election by, without reasonable excuse, offering an advantage, namely a sum of $1,000 Hong Kong currency per person, to about 36 persons, including R4, R5 and R6 [and males and females including a number of defendants in the original case], as an inducement for the said persons to vote at the said election for a particular candidate.”

8.Charge 4 alleged:

“R1, R2, R3 and D4, between the 12^th day of April 2016 or thereabout and the 4th day of September 2016, both days inclusive, in Hong Kong, conspired together and with SUM XX, R4, R5, R6 and other persons unknown, to defraud the Registration and Electoral Office (“REO”), by dishonestly:

(a) making and effecting applications for full membership in the Institute of Electrical and Electronics Engineers, Inc. (“IEEE”), Hong Kong Section, Computer Chapter or Hong Kong Joint Chapter on Circuits and Systems/Communications for about 240 persons with input of false information about the professional qualification, education and/or experience of the said persons;

(b) making or causing to make applications to the REO for registration in the Information Technology Functional Constituency (“ITFC”) by the said persons on the strength of their membership obtained as abovesaid with the IEEE; and

(c) causing and inducing staff members of the REO to act contrary to their public duty, namely to approve the abovesaid applications and include the said persons in … the 2016 final register of electors for the ITFC election so that the said persons would become entitled to vote in the ITFC.”

9.Charge 5 alleged:

“ R4, on or about the 21^st day of May 2016, in Hong Kong, engaged in corrupt conduct at the 2016 Legislative Council General Election by, without reasonable excuse, accepting an advantage, namely a sum of $1,000 Hong Kong currency, as an inducement for him to vote at the said election for a particular candidate.”

Facts as agreed

(Relevant functional constituency)

10.At the 2016 Legislative Council General Election, one councillor was to be elected from the information technology functional constituency (“ITFC”). At that time, only two candidates ran for office, Charles Peter Mok (“Mok”) and Yeung Chuen Sing (“Yeung”).

11.Certain conditions had to be fulfilled before one could be an eligible ITFC elector, one of which was to be a specific member of the IEEE, Hong Kong Section, and the Hong Kong Joint Chapter on Circuits and Systems/Communications. An applicant for specific membership of IEEE had to meet certain requirements in respect of education and professional qualifications.

12.An application for IEEE specific membership could only be made online, which only required the applicant to provide a correspondence address and information on the educational and professional qualifications (no certificate needed) and to pay a membership fee. A successful applicant would be allocated a membership number.

13.An individual who wished to be registered as an ITFC elector had to submit to the Registration and Electoral Office (“REO”) an application form (REO-41) to declare that he fulfilled the requirements for registration. The applicant must provide a residential address in Hong Kong and his IEEE membership number on the REO-41. The REO would write to the IEEE to verify the membership of the applicant.

(The respondents and their relationship)

14.R1, R2, R3 and R4 were respectively the chief corporate affairs director, vice secretary, clerk and chief executive of the Taxi Drivers and Operators Association (“TDOA”). The TDOA was a non-profit transportation association set up for taxi drivers and people working in the trade, having no connection whatsoever with the information technology sector. R5 and R6 were R4’s younger sister and son respectively. They were also not related to the information technology sector. R6 was a Form Six student.

(Actual criminal acts)

15.Three sets of [Summary of] Facts were agreed in the present case, which were respectively used for the guilty pleas made by R1 and R3[4], by R2 individually[5] and by R4 to R6 and the 14^th defendant[6]. Their contents were very similar, and since a huge amount of details were included, each set was in great length.

16.In short, the incident commenced in April 2016. According to what R2 said under caution[7], at that time, R1 instructed him to find out how to become an elector in any functional constituency so as to vote. R2 learnt from the internet that it could be done through IEEE. R1 then instructed him to try to register as a specific member of that association and an ITFC elector. R2 succeeded, and after that R1 began, together with R3, to assist other people to become ITFC electors by the same method. R2 continued to let others use the particulars of his credit cards to pay for the IEEE membership fees.

17.In respect of the actual implementation of the scheme, on 7 April 2016, R1 first gave a blank REO-41 form to R3. One week later, with R1’s knowledge, in a family chat group on a communication app, R4 recruited R5 and other family members to become “IT estate members” for each person to obtain $1,000. At R4’s request, R5 was required to assist in going through the relevant formalities on the internet, and after each person became an “IT estate member”, they would have to register as an elector and vote in the ITFC as instructed. R5 said this was “vote purchasing” but was corrected by R4 as “vote planting”; however, such conversation did not deter her from recruiting more friends and relatives on the same day, such as members in another chat group and a classmate of hers in secondary school together with this classmate’s husband. R5 even explained in the chat group that this was “political vote planting” and warned the members that they must keep it confidential. As to R6, he recruited members in two chat groups to join the scheme on 15 and 20 April 2016. He even stated explicitly that he would take $150 from the sum of $1,000 that each participant would get.

18.After recruiting participants, the next step was getting them registered as specific members of IEEE and ITFC electors. In this regard, a lot of messages on the communication app were revealed in the agreed [Summary of] Facts, the contents of which included obtaining, providing, clarifying, forwarding and requesting to verify the personal data required, and various problems encountered in joining IEEE, such as the progress, payment by R2’s credit cards and the difficulties in the course. The senders and recipients of the messages included all six respondents and the people whom they had successfully recruited. A flowchart was prepared by the prosecution, showing the movement of information among the 36 persons in total in Charge 1[8]: see the Appendix attached to this judgment.

19.As to Charge 4 which involved false registration of about 240 persons, there are no clear details in the agreed [Summary of] Facts. The focus was, conversely, on the number of persons (118 persons) who became ITFC electors successfully, from which a rough idea about the operation might well be figured out. Below are the relevant parts in the judge’s Reasons for Sentence (the “36 advantage recipients” referred to in paragraph 34 are the same people particularised in Charge 1)[9]:

“ 30. Around the time between April and May 2016, D2’s credit cards were used for paying IEEE fees in a total amount of about HK$252,185.97.

31. Between 30 April and 2 May 2016, REO received REO-41 forms (38 sets in total) from D1 to D14 and others by post or fax. On around 2 May, D4 and another person made declarations respectively and submitted a total of 12 REO-41 forms to REO.

32. The above-mentioned persons all claimed in their REO-41 forms that they were IEEE members and thus eligible for registering as ITFC electors. However, in the REO-41 forms of all these persons, there was the same mistake with the same English word, that is, the “Engineers” in the English name of IEEE in full was miswritten as “Enginess”.

33. In addition to the said 38 REO-41 forms, ICAC officers also found the same mistake in 86 REO-[41] forms seized from the REO. The REO-41 forms of those 86 applicants also stated that they were IEEE members and thus eligible to be ITFC electors.

34. According to the record of IEEE, between 12 April and 1 May 2016, people such as D1 to D4, those 36 advantage recipients, 85 among those 86 applicants and so on (127 persons in total) had all been registered as formal members of IEEE, Hong Kong Section or of Hong Kong Joint Chapter on Circuits and Systems/Communications.

35. Subsequently, REO and the then Secretary of the IEEE, Hong Kong Section verified the membership of 124 persons among the above according to the IEEE record. Upon confirming the information provided, REO added a total of 118 persons, including D1 to D10, D12 to D14 and others, to the formal register which was published later on 16 July 2016. There is evidence showing that at least 79 persons among those 118 successful applicants were not working in the information technology industry and had no qualification whatsoever related to information technology.”

20.Next is about 21 May 2016. On that day, R4 notified R5 and the family chat group that “there is money for distribution”, and R5 and R6 immediately forwarded the same message to their own chat groups and arranged for the release of the reward in the amounts of $1,000 and $850. R4, R5 and R6 themselves received money on the same day, i.e. 21 May.

21.On 20 July 2016, R1 sent a publicity photo of Yeung to R4. On 31 August and 3 September, he also sent a message and two photos for Yeung’s campaign to a chat group and appealed to the group members to vote for Yeung.

22.On 4 September 2016, ie the election day, R1 reminded members in his chat group that they had to collect ballot papers of ITFC in casting votes. After that, R5 forwarded the same message to at least three chat groups and instructed them that they had to vote for Yeung. Similarly, R6 instructed his chat groups to vote for “the one other than Mok”.

23.It was proved subsequently that among the 118 persons mentioned in paragraph 19 above and paragraph 35 in the Reasons for Sentence, who had successfully become ITFC electors by application, 71 had actually collected ballot papers for voting in ITFC.

24.Finally, Mok was re-elected with 6,253 votes and defeated Yeung who had 3,425 votes.

Mitigation

(Personal circumstances)

25.Below are the submissions for mitigation made on behalf of the six respondents.

26.R1: At the time of sentence, he was aged 54, a taxi driver, had two sons with his wife and was the sole breadwinner of the family. He had a non-similar previous conviction in 1999. He had taken up duties in the TDOA since 2009. He had been enthusiastic in acting as a bridge between the taxi industry and government departments and offering help to those in the neighbourhood, homeless persons and colleagues in need for a long time, and he therefore had earned the respect of friends and people in the trade. He committed the present offence only in the hope that the candidate who shared his political views would be elected. He received no personal benefit from the incident.

27.R2: At the time of sentence, he was aged 35, had two children with his girlfriend and was the sole breadwinner of the family. He had worked in the financial and insurance sectors and also the electronic industry at different times. In 2015, since his employer closed down the business, he became a clerk in the TDOA, and he had taken part in the Great Bay Area Homeland Youth Joint Action of the TDOA. Light painting photography was his hobby. He set up a company in 2014 and had done various promotion work with a number of non-profitmaking organisations, government departments and famous companies. Although his last post in the TDOA was vice secretary, it gave him no actual decision-making power. He was in fact R1’s subordinate and worked on R1’s instructions. He was not an initiator in the present offence and did not belong to the chat group which mentioned the bribe of $1,000. He did not know that benefits would be provided to the people involved, and he had no personal gain at all. Having committed the offence, he could no longer be engaged in the insurance or financial sectors. In order to earn a living, he could only run a noodle shop, the operation of which required his direct involvement, and a long-term imprisonment would have a grave impact on him.

28.R3: At the time of sentence, she was aged 53. She had two failed marriages and had no children. She had been suffering from emotional problems for many years, and due to major depressive disorder, she had to attend follow-up appointments regularly. She also had health problems such as the hypertension, hyperglycaemia, hyperlipidaemia and dermatitis. In 2012, she worked as a phone operator in a taxi call station. She joined the TDOA to work as a clerk one month before the present offence took place and was responsible for clerical work and computer data input. She had been keen on volunteering and charity services when not at work. She committed the offence because being a newcomer at work, she was unable to refuse but only routinely acted on her superior’s instructions by keying information received onto the IEEE website. Since the website was in English, she did not fully understand the contents to be input; at the initial stage, she even needed translation and directions from others on how to select options. She was not a mastermind in the present case and did not know the candidate. She has not gained any benefit from the offence.

29.R4: At the time of sentence, he was aged 47, had three children with his wife, including his second son R6. He also had three younger sisters, who were R5, the 7^th and 8^th defendants in the present case. He owned and ran as a sole proprietor an automobile services company, a motors company and a taxi company. He was outstanding in the field of automobile repairs and deeply trusted by taxi owners, but it would be uncertain whether or not this would continue after his imprisonment. He had been supportive of community welfare, and being a council member of his clansmen’s association, he spared no effort in making donations to his hometown. During the COVID pandemic, he had donated materials to fight against the pandemic to the community, in particular the taxi sector. He was neither a candidate nor a campaign runner in the election. He would not gain any benefit from the result of the election in any way, and what he actually got was only $1,000. He was not a convener or mastermind in the present case. There was no evidence that he was involved in appealing to people to vote for Yeung. He only played the role of a middleman. The offence had got many members of his family into trouble and the damage caused to their relationship was ineradicable.

30.R5: At the time of the sentence, she was aged 43, worked as an accounting supervisor and had a son with her husband. Since 2013, she had taken part in volunteer work at various organisations, such as centres for the elderly, schools, charitable funds and clansmen’s association. After being arrested in 2017, she had been under tremendous pressure and had a miscarriage after the first pre-trial review in 2020. In 2021, her husband got injured at work and became unable to work, hence she became the sole breadwinner of the family. In April 2021, she was diagnosed with minor general anxiety disorder which needed treatment by medication and she was also diagnosed with adjustment disorder in June of the same year. She only thought of helping R4 in committing the offence and had a limited role and participation in the case.

31.R6: At the time of the offence, he was aged 19 and in Form Six. He was put on probation for 15 months for a different offence in 2009. At the time of sentence, he was 25 and had finished a certain course in the professional and continuing college of a university, but he had deferred his studies in the university because of the present case. Since 2021, he has been working as a technician apprentice in a garage. After the arrest, he had been on tenterhooks, which led to an accident (falling) in August 2021 causing serious injury on his head. He underwent craniotomy and was hospitalised for seven days. He committed the offence because of ignorance and inexperience in life. In addition, being always under the strong influence of his father (R4), he had given no thought before taking part in the scheme, and his role and participation were very limited.

(Case as a whole)

32.The submissions made by defence counsel on the overall gravity of the case may be summarised as follows: None of the respondents was a candidate or campaign runner. Apart from some of them who obtained a small amount of money, they derived no benefit from the case (Lai Wai Cheong^[10]). The present case did not affect the result of the election and did not lead to any by-election which would waste public money. In that year, there were approximately 10,000 electors in the ITFC. Charges 1 and 4 involved 36 and 240 people respectively (or the 118 people who successfully registered), and the circumstances of the charges were much less serious than those in other cases of engaging in corrupt conduct at elections (Kan Ping Chee[11], Lee York Fai[12] and Cheng Wing Kin[13]). Therefore, the starting point could be less than 18 months. Since Charges 1, 4 and 5 originated from the same incident, their terms should run wholly concurrently.

Sentencing after trial

(Basic principle)

33.The judge made it clear right at the outset that upholding the fairness and integrity of and public confidence on the election of councils at various levels was of utmost importance. She said that if the sentence for corrupt practices in an election was too lenient, a wrong message would be conveyed to the public, which would impact the confidence of the public on the electoral system. She said that “vote planting” not only deceived REO but also the electors and candidates, and might lead to by-election, wasting more time and resources. Therefore, the court must strive to stop it by deterrent sentences[14].

(Charge 1)

34.The judge pointed out that the offence had spanned over almost five months, involving offering bribes to 36 electors. Among these people, R1 played a relatively important role, and R4, R5 and R6 had respectively invited three persons (by R4), not fewer than 16 persons (by R5) and not fewer than 6 persons (by R6) to join the scheme in question. R5 and R6 sent the participants’ information to R4. Such information was then compiled by R5 according to the instructions given by R1 and R3, returned to R4 afterwards and in turn forwarded to R1. Since more than one perpetrator was involved and there was organised division of work among them, involving a significant number of targets for bribery in the election, it was more serious than a case involving only a single perpetrator or affecting only one elector[15].

35.However, the judge added, apart from R1, the defendants in the case had no previous record. The total sum of money involved in the case was not substantial. R4 to R6 had received not much personal benefit and R1 himself did not commit the offence for money. The number of votes received by the two candidates differed quite a lot and the corrupt conduct in question did not affect the result of the election. In respect of the number of electors, 36 votes did not have much impact on the ITFC. Solely on this point, Kan Ping Chee was more serious than the present case[16].

36.The judge said, “The starting point of the sentence for each defendant would differ from others with reference to the degree of participation, personal background and the circumstances of and reasons for committing the offence.”[17]

37.Next are the actual sentences.

38.R1: The judge considered 12 months the appropriate starting point, and that 20% could be deducted for the guilty plea made [at] the commencement of the trial, making it 9 months and 10 days. R1’s previous record happened a long time ago and was not similar in nature. In addition, he “has been supportive of charity work, and has earned the respect of people in the trade, and [therefore] although these are not strong mitigating factors”, the court “is minded to reduce the term by 1 month” to 8 months and 18 days[18].

39.R4: The judge said that R4 was not a mastermind of the scheme but played an active role in recruiting others (including his younger sister and son) and requested them to send the participants’ information to him. Therefore, the appropriate starting point was 10 months, which was reduced by 20% to 8 months for his guilty plea [at] the commencement of the trial. Although R4 received $1,000, the court “firmly believed” that this was not the main reason for which he committed the offence and “could not see that [R4] might obtain other benefits form it”. Having considered that R4’s “positive good character” and the fact of getting family members into trouble “had caused ineradicable mark… he would definitely not re-offend”, and “his companies might close down as a result of” his imprisonment, the term might be further reduced by 1 month to 7 months[19].

40.R5: In the judge’s view, since R5 recruited not fewer than 16 persons and most of them were relatives, the appropriate starting point was 8 months, which was reduced by 20% to 6 months and 12 days for his guilty plea [at] the commencement of the trial. Although R5 received $1,000, her motive was “obviously not for [the money]”; instead, she “had always been submissive [to her elder brother R4] since she was small”, and therefore the court “was minded to reduce 2 months” to 4 months and 12 days. Since R5 had become the sole breadwinner of the family after her husband’s accident, in addition, she had “saved a classmate who was going to jump from height” when she was a student, had been charitable since working, which showed her “positive good character” and had “remote chance of re-offending”, the term could be further reduced by 1 month to 3 months and 12 days[20].

41.R6: The judge was aware that R6 had previously been put on probation and also considered that he had recruited not fewer than six persons in the present case. However, R6 was only a nineteen-year-old student at the time of the offence, and although he received $1,000, his committing the offence was caused by the “strong influence” of his father R4, against whom he had “let down his guard” and just “followed his instructions blindly”, and therefore, the chance of re-offending was low. The judge also took into account the many mitigation letters for him. The letters stated that R6 was a “student leader” but was “simple-minded… humble… easily influenced by others”. On the basis of the above factors, the appropriate starting point was 6 months which was reduced by 20% to 4 months and 24 days for his guilty plea [at] the commencement of the trial. Since R6’s perpetration was mainly caused by his father’s influence, “the court was minded” to give a further reduction to make the final sentence 3 months[21].

(Charge 4)

42.The judge reiterated the number of persons involved in this offence (240 persons who had attempted to register and 118 persons who had succeeded in registering) but after that pointed out that there was no evidence in the case showing that the respondents could obtain any benefit by committing the offence. None of the respondents was a candidate or a campaign runner. 118 persons accounted for only 1% of the approximately 10,000 electors in the ITFC. The actual result of the election was not overturned by this offence, and no by-election was entailed[22].

43.The judge expressed that since “in terms of the scale, the crime involved planning and complicated procedures by several perpetrators, and the scheme also involved IEEE admission fees in the amount of around $250,000”, even though the gravity of this offence was lower than that in Lee York Fai, it was at least as serious as that in Kan Ping Chee[23].

44.The judge said that as far as R1, R2 and R3 were concerned, “the personal background, reasons for perpetration and extent of participation of each of them are different, and therefore the appropriate starting points for their respective sentences also differ”[24].

45.In respect of R1’s sentence, the judge found that R1 was the corporate affairs director of TDOA and had higher culpability, and the appropriate starting point was 16 months’ imprisonment. A 20% discount was given for his guilty plea [at] the commencement of the trial, making it 12 months and 24 days. Because of R1’s “positive good character”, it was further reduced to 12 months[25].

46.The judge then said that Charges 1 and 4 involved the same election and the 36 persons particularised in Charge 1 were in fact part of the 240 persons in Charge 4. Having considered R1’s “overall culpability in this case”, a “fair and proportionate” overall sentence was 12 months. Therefore, it was ordered that the sentence for the two offences were to run wholly concurrently[26].

47.In relation to R2’s sentence, the judge found that he was R1’s subordinate and committed the offence upon R1’s request, and his chance of re-offending was very low. Having a criminal record as a result of this case, R2 could not work in the finance and insurance sectors anymore and had wasted his efforts made over the years. His prison sentence put his family in difficulty as the noodle shop which he ran with his girlfriend could not possibly continue. In conclusion, the appropriate starting point was 12 months, which could be reduced by 20% to 9 months and 18 days for his guilty plea [at] the commencement of the trial. R2, who was then aged 30, committed the offence under his superior’s bad influence, and the sentence was further reduced by 1 month and 18 days to 8 months[27].

48.In respect of R3’s sentence, the judge found that she was employed by the TDOC as a clerk just a month before the offence took place, obviously took part in the scheme on her superior’s instructions and was tasked with inputting the necessary data into computer. There was no evidence to show that she obtained any extra wages or benefits by committing the offence. R3 “is not well educated… has failed in her marriage and deserves sympathy”. She had also been suffering from various illnesses and emotional problems for years. The court accepted her submissions for mitigation and held the view that the appropriate starting point was 12 months which was reduced by 20% to 9 months and 18 days. Although “facing such a serious charge… having positive good character is not a strong mitigating factor”, the court still “was minded to [further] reduce the term by 1 month”, making it 8 months and 18 days. R3 was only responsible for data input at the time of the offence and even needed assistance from others because of her lack of language proficiency. She “obviously did not fully understand the serious consequence of the offence”. Therefore, the court “was minded to reduce her sentence” further by 1 month and 18 days to the final term of 7 months[28].

(Charge 5)

49.The judge stated that this offence involved a benefit of $1,000 and R4 did collect the ballot paper of the ITFC, but the chance that he would re-offend was extremely remote. The culpability of this offence was similar to that of “vote planting” and the appropriate starting point would be 3 months’ imprisonment. However, acceptance of money was an aggravating factor and therefore there should be an upward adjustment to 3 months and 14 days. Since R4 pleaded guilty [at] the commencement of the trial, he was entitled to a discount of 20%, hence a downward adjustment to 2 months and 24 days. Having considered his “positive good character”, the term of imprisonment could be further reduced by 24 days to 2 months[29].

50.The judge found that R4 was sentenced to imprisonment for 7 months for Charge 1 which in fact involved the same election as Charge 5. The circumstances of the charges overlapped. Based on the totality principle, seven months was “an overall sentence proportional to the overall culpability in this case” and the sentence for the two offences could therefore run wholly concurrently[30].

Grounds of review

51.The applicant put forward five grounds for review which may be summarised as follow.

(Ground 1: Gravely misjudging the seriousness of the present case)

52.The applicant criticised that the judge had failed to give sufficient consideration to the following points, and hence wrongly thought that the present case was less serious than Kan Ping Chee and adopted a starting point lower than the one in that case:

(1) Charges 1 and 4 consisted of a complex and sophisticated scam, involving multiple steps, from searching for a functional constituency for which there was a loophole in registration to distributing money and giving instructions on which candidate to vote for, in which the respondents played distinct but interconnected roles.

(2) Apart from the respondents, the scam involved many other participants with the obvious aim of gathering as many people as possible to take part in the corrupt acts. In terms of scale, it was far more serious than cases involving only one perpetrator and merely affecting a few votes (also see Leung Kam-ho for reference[31]).

(3) The scam spanned over five months. In terms of duration, it was far more serious than a one-off act of bribing elector(s) (also see Leung Kam-ho for reference).

(4) The scam involved a total amount of $283,000, consisting of $36,000 of bribes and IEEE membership fees of $247,000, which was not a small sum.

(5) At the material time, the total number of ITFC electors and the voting turnout were unknown. On the election day, there were in the end fewer than 10,000 valid votes (the total number of votes obtained by Mok and Yeung). Therefore, the potential impact of the scam should not be disregarded or considered less serious just because Yeung lost the election (see Yam Sze Ming[32] for the relevant principle).

(6) All corrupt conduct at elections was serious but those which interfered with the Legislative Council Election would be even more serious (see Lee York Fai for the relevant principle).

(7) The respondents flagrantly disregarded the sanctity and integrity of the electoral system. They not only gave “sweetener” to electors but directly gave money to the participants to plant the votes and to vote afterwards as instructed (in comparison with Lee York Fai).

(8) In addition to REO, Charge 4 involved giving a false statement to a third party (namely, IEEE).

In conclusion, the sentence in the present case should not be lower than that in Kan Ping Chee; even more so, it should at least be similar to that in Leung Kam-ho.

(Ground 2: failing to sufficiently consider the need for deterrence)

53.The applicant criticised that the sentences imposed by the judge could in no way convey a clear message to the public that any corrupt practice in elections would be severely punished.

(Ground 3: adopting different starting points for different co-conspirators)

54.The applicant contended that the gravamen of the offence of conspiracy was the act of reaching the agreement rather than the overt acts of individual defendants in their performance of the agreement, and therefore each participant of the conspiracy should be treated as equally culpable. Being the mastermind or taking a leading, active and extensive role would amount to an aggravating factor. Conversely, taking a minor role was not a mitigating factor (see Fok Ka Po Joe (No 2)[33], 謝德禮[34] and Chan Hok Yu[35] for the relevant principle). The judge was wrong to adopt different starting points based on the different roles taken by the respondents. The mistake was compounded when she further reduced the terms of R2, R3 and R6 on the same basis. As a result, these three respondents enjoyed an unjustified “double discount”.

(Ground 4: giving undue weight to mitigating factors)

55.The applicant pointed out the ways in which the judge erred in giving too much reduction in sentence to the respondents on various aspects. In respect of offences involving corrupt conduct at elections, having a normal and stable family, having a clear record, being charitable and having contributed to society are not strong mitigating factors (see Lai Wai Cheong, Kan Ping Chee and 謝德禮 for the relevant principle). The fact that the candidate whom the corrupt conduct intended to benefit lost the election did not render an offender less culpable (see Yim Sze Ming for the relevant principle). Although gaining an advantage from corrupt conduct in an election was an aggravating factor, not receiving a benefit did not amount to a mitigating factor (see Yim Sze Ming for the relevant principle). Family hardship or business hardship is normally not a mitigating factor (see Kan Ping Chee and Chan Kin Chung[36] for the relevant principle).

(Ground 5: ordering sentences on R1 and R4 be wholly concurrent)

56.The applicant submitted that if one incident gave rise to two offences at the same time and the latter offence added culpability to the earlier one, the sentences for the two offences should run wholly or partially consecutively (see Lee Tat Hoi[37] for the relevant principle).

57.The applicant submitted that Charge 1 (offering advantage to 36 persons) and Charge 4 (defrauding the IEEE for 240 persons) were different in terms of their nature and scale, and the judge therefore should not have ordered the sentences for these two offences against R1 to run wholly concurrently.

58.Likewise, Charge 1 (offering advantage to others) and Charge 5 (accepting advantage) were different by nature and in culpability, and the judge therefore should not have ordered the sentences for these two offences against R4 to run wholly concurrently.

(Ground 6: Overall sentence being manifestly inadequate and/or wrong in principle)

59.The applicant asserted that the starting point for both Charges 1 and 4 should not be less than three years[38].

Respondents’ reply

60.The six respondents’ replies could be summarised as follows.

(To ground 1)

61.The respondents contended that the corruption scheme in the present case was in fact fairly simple and not as sophisticated as the applicant alleged, in which the interactions among the respondents were merely for collecting and handling the information. Although the conspiracy in question was extant for five months, the actual acts took place mainly in April and May 2016, and there was no other activity except the dissemination of Yeung’s campaign information and the calling for votes on three days in August and September. The bribe involved in the scheme were only the sum of $36,000 particularised in Charge 1 and the IEEE membership fees of $247,000 mentioned in Charge 4, which were not comparable to the large amounts of bribes in Lee York Fai and Kan Ping Chee. The potential impact of the scheme was in fact very small. Either the 36 persons involved in Charge 1 or the 118 persons in Charge 4 constituted only a minimal portion of the electors who cast a vote (about 10,000 people); there was no gathering of as many people as possible to join the scheme as alleged by the applicant (the agreed [Summary of] Facts showed that R4 had indicated to her family that only 40 places were available). The respondents deceived IEEE with the only objective of deceiving REO. The former formed part of the latter. The judge could be justified in finding that the occurrence of Charge 1 had no effect on the culpability of Charge 4.

(To ground 2)

62.The respondents contended that the judge stated explicitly that the court had a duty to impose deterrent sentences and assessed correctly the gravity of the present case by applying the relevant authorities.

(To ground 3)

63.The respondents contended that the applicant only put forward general principles; nevertheless, by reading the cited cases in detail, the judge might not be wrong depending on the actual circumstances of the case.

(To ground 4)

64.The respondents contended that the judge understood the facts of the present case correctly and all respondents’ submissions for mitigation before exercising her discretion to allocate appropriate deduction to the mitigating factors. Unless the final sentences were found to be manifestly inadequate, the Court of Appeal should not intervene with the weight accorded to the individual factors by the judge (Wong Chi Fung[39]). By reading the reasons for sentence correctly, it could be seen that the judge used certain words repeatedly while making a series of observations rather than giving “double discount” to the respondents concerned.

(To ground 5)

65.The respondents contended that the Court of Appeal emphasised in Lee Tat Hoi that a trial judge had some freedom in making appropriate arrangements to the sentence for two or more offences, which the Court of Appeal would be slow to intervene. Moreover, Lee Tat Hoi was an example of having the sentences for multiple offences running wholly concurrently. It was undisputed that the 36 persons referred to in Charge 1 were some of the 240 persons in Charge 4. There was nothing wrong that the judge made the orders in question after considering the totality principle.

(To ground 6)

66.The respondents emphasised that Lee York Fai was described by the Court of Appeal as an “unprecedented” case in respect of both gravity and its potential impact on elections. The persons involved in the case were sentenced to imprisonment for 27 to 33 months upon review (after trial). Therefore, the starting point adopted in the present case should definitely not be three years.

(Submissions in court)

67.Finally, Mr Lee, acting for R1, R3, R4, R5 and R6, said at the hearing that the starting point adopted in the present case did tend to be “on the lenient side”[40], but in view of various mitigating factors, the final sentences were not manifestly inadequate or wrong in principle. He suggested that having regard to all relevant circumstances, this Court might at least, “as an act of mercy”, refuse the applicant’s application and uphold the original sentences.

Discussion and analysis

(Sentencing factors)

68.As it can be seen from the submissions made for the applicant and the respondents, there are not many authorities on cases of engaging in corrupt conduct at an election. Those cited repeatedly are the five or six cases mentioned above, from which it is not difficult to work out the relevant sentencing factors which have been identified by the courts so far. This is also the first major step in the discussion on the sentence of any case of engaging in corrupt conduct at an election.

69.Elections of members of councils are an important component of the existing political system. Citizens have the responsibility to maintain fair and clean elections; on the other hand, any illegal act related to corrupt practices in an election does not only undermine public confidence on a particular election but also creates far-reaching adverse influence on the entire election system, and even on the political system. Therefore, the court must be stringent in sentencing this kind of offences, and deterrent sentences are called for. Sentences which are too lenient would give a wrong message and indirectly encourage similar crimes. The matter stated above is the most fundamental principle which had already been well established when Hong Kong began to enter into the era of elections[41].

70.In application, matters which the court has to consider in sentencing vary from case to case and cannot be set out exhaustively. Nevertheless, case law shows that factors which may affect the overall gravity of the cases at least include the following:

(1) Composition of the constituency ― Generally, the fewer the electors in a constituency (e.g. in functional constituencies), the more likely that the result of the election is affected, and the more serious are the corrupt practices[42].

(2) Offender’s status ― Generally, corrupt practice by a candidate or a campaign runner is regarded as more serious than commission by an ordinary citizen[43]. Offering bribes in an election by a candidate having certain inherent influence on electors is regarded as more serious than bribing electors by an ordinary candidate[44].

(3) Preparation ― Generally, a conspiracy to carry out corrupt practices in an election is more serious than an offence committed by one person[45]. Corruption with organisation and sophisticated planning is also regarded as more serious[46].

(4) Modus operandi ― Generally, corrupt practices involving means such as bribes, intimidation or coercion are regarded as more serious[47]. Those involving multiple means are also regarded as more serious[48].

(5) Scale of the crime ― Generally, the longer the duration[49], the more money used[50] and the more institutions[51] and people[52] were defrauded or bribed, the greater is the gravity of the corrupt conduct.

(6) Damage caused ― Generally, any conduct aiming at undoing the delineation of constituencies (such as vote planting) is, without more, very serious[53]. Corrupt practices in whatever form which lead to by-election or re-election are regarded as even more serious[54].

71.In addition, the case law also specifically identifies certain factors which do not help in mitigation for the plain and obvious reasons that the matter is a pre-requisite to the commission of an offence and only minimal weigh can be accorded to it vis-à-vis a serious crime, that the offender brought the misfortune upon himself, and that the matter hardly compensates for the core conduct that is the subject of the offence, and so on. Factors which do not help the offenders include the following:

(1) Character ― for example, having a clear record and a normal and stable family[55].

(2) Contribution ― for example, long term participation in volunteering work and having many supporters[56].

(3) Age ― for example, being at an advanced age[57].

(4) Hardship after conviction ― for example, financial ruin, health deterioration, hardship in family life[58] and/or social rejection[59].

(5) Others ― for example, having acquired relatively low education level and failing to fully understand the serious consequences of their own acts; purely for the purpose of helping friends with no personal gain; and/or the candidate intended to be benefited by the corrupt practice lost in the election[60].

The Court of Appeal has also held in a case that even if the offender’s advanced age and contribution to society are accepted, this can only be regarded as an act of mercy and would carry little weight[61]. This observation is, in this court’s view, applicable to the above factors in general.

(The three authorities)

72.The three authorities which the applicant and the respondents have specifically used for comparison have their respective features, which may help to some extent in analysing the present case. At least, in Lee York Fai, a general range of sentence has been outlined for cases of engaging in corrupt conduct at elections, and unless a case is far more serious, the sentence would not go beyond such a range. Below are the summaries of the three authorities.

73.Leung Kam-ho (offence committed in 1991): Leung, Fung and Cheung were back then three of the 36 members constituting the Regional Council which was a functional constituency of the Legislative Council. In order to secure their votes to become a member of the Legislative Council, Leung either directly or through someone else provided to Fung and Cheung $50,000 and $100,000 in cash or by cheque. The matter was exposed after Leung had been elected. In dismissing Leung’s appeal, the Court of Appeal stated that the term of three years in total imposed by the trial judge (the sentence for one of the charges in the case already being three years) did not err in principle nor was it manifestly excessive. The Court did not mention that there was any aggravating or mitigating factor in the case.

74.Lee York Fai (offence committed in 2008): Lee was one of the five candidates in the Shatin District Council Tai Wai Constituency by-election. He and four of his supporters ran a welfare club and organised activities (such as dinners, day tours and flu vaccination) which were either highly subsidised or free of charge to the electors of the said constituency. Having nearly ten thousand people as targets, such activities spanned over a period of about two months and over two million dollars were used. The Court of Appeal in its judgment for the review of sentence commented that this was “an extremely large-scale corruption in election”, in which “a group of people, after careful planning and organisation, carried out various forms of corrupt conduct in the election over a long period of time with the intention to influence the electors”, and “the gravity and potential impact on the election were unprecedented”. The Court of Appeal held that the total terms of sentence after trial should be 33 months for the most culpable persons including Lee and 27 months in total for the remaining three; and that the above sentences “were already extremely lenient” and “reflected the facts that the defendants had admitted most of the prosecution case at trial… and that the terms were imposed upon an application for review”.

75.Kan Ping Chee (offence committed in 2011): At the material time, the Executive Committee of Sheung Shui District Rural Council were to be formed by election among the 46 village representatives of the same district. The chairman and vice-chairman of the Executive Committee were ex-officio members of the Full Council of the Heung Yee Kuk. Heung Yee Kuk was a functional constituency of the Legislative Council and also one of the subsectors based on which the Election Committee for the election of the Chief Executive was constituted. Kan was one of the said 46 village representatives and had been the chairman of the Executive Committee. He ran for election to the Committee again in 2011. Liu was also a village representative. He knew Kan but had no personal dealings with him. In order to obtain support from Liu, Kan simply left behind $13,000 in cash on his second visit to Liu’s store. Kan was arrested upon Liu’s report to the ICAC. The Court of Appeal stated in the judgment of the review of sentence that this case was not as serious as Leung Kam-ho, but an appropriate starting point should not be less than 18 months.

(Problems with the sentences passed by the judge)

76.As this Court has indicated repeatedly at the hearing, unless the circumstances are very similar, it is very difficult, if not impossible, to look at two cases of engaging in corrupt conduct at an election side by side in order to compare their gravity. For example, from experience, although this kind of case can be roughly divided into vote planting, vote splitting and directly bribing electors in an election, the conduct and details involved vary immensely. This is the most fundamental.

77.The difficulty in such an exercise can be further illustrated by whether an offender received monetary benefit from the offence. Taking R1 in the present case as an example, one of the mitigating factors submitted by the defence was that he did not receive any financial reward from the offence, and this seemed to have been accepted by the judge. However, could R1, being the instigator of the whole incident, become less culpable due to this factor? R1 did not know Yeung. He chose a functional constituency which was susceptible to manipulation to carry out vote planting so as to benefit the political camp of his preference. From a certain perspective, did this not cause more serious tampering and intentional damage to the electoral system?

78.Certainly, the fact that R1 induced downstream members with money to take part in unlawful vote planting undoubtedly aggravated the case. However, here is another issue: whether the amount of bribe offered should be attached any significance. As this Court has mentioned at the hearing, the electors in functional constituencies are likely to be more experienced and have certain status (such as being village representatives or incumbent councillors), and this is even more so when the constituency is smaller. Therefore, by common sense, too small of a bribe simply would not work. In comparison, a larger constituency has more electors (such as in geographical constituencies), and the advantage which each participant to corrupt conduct can get would naturally be smaller. The focus of the court therefore should extend to the scope of the corrupt conduct and the resources (eg, manpower, material and time) employed in the commission of the offence by the offender.

79.It is also worth mentioning that, undoubtedly, the fewer the electors in a constituency, the greater the potential impact of corrupt conduct would be on the result of the election. Nevertheless, unless in comparison the number of electors is particularly large (such as in geographical constituencies), the potential impact caused by the same corrupt conduct should not be underestimated. As pointed out by the applicant, the voter turnout can hardly be foreseen. For a constituency of moderate size (such as a functional constituency) having a low turnout, one to two hundred (or even two to three hundred) votes obtained by unlawful means may have a substantial effect. If the turnout is high but the numbers of votes for each candidate are similar, any extra votes will possibly have an impact on the result. These potential impacts cannot be negated by the actual turnout or the distribution of votes among the candidates, which are no more than observations in hindsight. The focus is on the potential damage caused by the corrupt conduct.

80.The above observations aim at showing that the analysis on the gravity of engaging in corrupt conduct at an election cannot be performed simply by picking one or two most conspicuous sentencing factors and making a comparison with the authorities; rather, all circumstances of the case should be taken into consideration; otherwise the assessment may be wrong. However, the judge’s biggest mistake was that she jumped to the conclusion that Kan Ping Chee was more serious than the present case solely because there were fewer electors and the potential impact caused by the corrupt conduct was greater in Kan (these were the only reasons specifically given)[62]. Although the judge noted other circumstances in the present case, ie, aggravating factors such as preparation in advance, scale of the crime and the damage caused[63], she failed to reflect them in the starting points. On the contrary, looking at how the starting points were adopted, the conclusions reached, the subsequent deductions granted and the orders by which the sentences of Charges 1 and 4 and Charges 1 and 5 were to run wholly concurrently, all of them were problematic and plainly too lenient. The reasons may well be the same as those asserted by the applicant[64]. Since the judge repeatedly used words such as “although… the court is still minded to”, there are reasons to believe that she was exercising her discretion to deal with the respondents with mercy. In conclusion, although she mentioned the need for deterrent sentences for this kind of case, she did not do so, rendering the sentences wrong in principle and manifestly inadequate.

(This Court’s opinion)

81.This is a case of engaging in corrupt conduct at an election where the perpetrators did not care about which constituency or which candidates would be affected but only which political camp would be benefitted, by a method that struck at the very basis of delineating constituencies. It was not in a particularly large scale on the whole but it involved recruiting a number of bogus electors with money, defrauding a private body and a public body, namely IEEE and REO respectively, and inducing them into conferring the eligibility for voting. Therefore, the manpower, time and other arrangements in the perpetration were not simple.

82.In respect of Charge 1, this Court is of the view that the starting point should be 14 months, which is also the starting point for R4, R5 and R6. The role played by R1 was much more important, justifying an upward adjustment to 16 months. This is a review of sentence, coupled with the respondents’ guilty pleas, and it is not the wish of this Court to disregard the judge’s intention of dealing with the respondents as leniently as possible in view of their backgrounds; accordingly, they may all have a reduction of 4 months and are sentenced to 12 months (R1) and 10 months (R4, R5 and R6).

83.In respect of Charge 4, we are of the view that the sentence should not be less than 24 months. In relation to this charge, the culpability of R1 and R2 was the greatest and could hardly be distinguished, hence their sentence would be this. R3 committed the offence under the pressure of being a new employee, and her sentence may be adjusted downwards by discretion to 19 months. This is a review of sentence, coupled with the respondents’ guilty pleas, and it is not the wish of this Court to disregard the judge’s intention of dealing with the respondents as leniently as possible in view of their backgrounds; accordingly, they may all have a reduction of 4 months and are sentenced to 20 months (R1 and R2) and 15 months (R3).

84.The applicant does not dispute the original sentence for Charge 5, and therefore there is no need for any variation and the sentence remains to be 2 months.

85.In our view, in addition to Charge 1, Charge 4 indeed increased R1’s culpability in the case as a whole, and the sentences for the two charges therefore should not run wholly concurrently. Three months of the sentence for Charge 1 is to run consecutively with the sentence for Charge 4, making a total of 23 months’ imprisonment.

86.Similarly, in addition to Charge 1, Charge 5 indeed increased R4’s culpability in the case as a whole, and the sentences of the two charges therefore should not run wholly concurrently. One month of the sentence for Charge 5 is to run consecutively with the sentence for Charge 1, making a total of 11 months’ imprisonment.

(Reminder)

87.In comparison with the original sentences, the result above is a substantial increase, which undoubtedly deals a bitter blow to the respondents, in particular the five of them who have already been discharged from prison. In this regard, we would refer to the remark made by Poon CJHC in the judgment of Secretary for Justice v SWS[65] as a reminder to the courts below:

“ 73. Let me reiterate: as required by public interest, the court is duty bound to impose a commensurate sentence on the defendant before it pursuant to the relevant ordinances and applicable legal principles. Where the law permits and it sits well with proportionality, the court may, at its own discretion, impose a more lenient sentence on the defendant. In such a case, the Court of Appeal will not interfere. However, as highlighted in quite a number of appeal cases, unduly lenient sentences which may be seemingly advantageous to the defendants turns out to do them no good in the end. In case the Secretary for Justice applies for a review of the sentence, the defendant will inevitably be subject to anxieties pending any decision to be made by the Court of Appeal. If the review succeeds, the defendant will face a more severe sentence which will cause him disappointment or even a blow and may also interrupt the rehabilitation plan that he is undergoing. Reference may be made to Cross and Cheung on Sentencing in Hong Kong, 9^th ed, page 609, paragraphs 41-8 and 41-9. Nevertheless, it is not meant to imply that the court is to be invariably harsh. What is required of the court is passing a commensurate sentence on the defendants.”

Order

88.This Court formally allows the application for review made by the applicant and the sentences in question be substituted with those stated in paragraph 4 above (for details, see paragraphs 81 to 86).

Mr Tony C.Y. Li, instructed by Messrs Lam & Lai, for the 1^st, 3^rd to 6^th Respondents

Ms Catherine K.K. Wong and Mr Hui Jen Michael Lee, instructed by Messrs Ho KC & Tong, for the 2^nd Respondent

Mr David Joseph Chan, Senior Assistant Director of Public Prosecutions and Mr Dimitri Au-Yeung, Senior Public Prosecutor (Ag), of the Department of Justice, for the Applicant

Appendix

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.