Secretary for Justice v. Lai Wai Cheong

IN THE COURT OF APPEAL

(English Translation - 英譯本)
1997, NO. AR 9

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Coram: Hon Chan, C.J.H.C., Leong and Yeung, JJ.

Dates of hearing: 20 and 27 November 1997

Date of judgment: 27 November 1997

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J U D G M E N T

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Chan, C.J.H.C. (giving the judgment of the Court):

1. The respondent was convicted after trial in the District Court of two offences, namely, one count of conspiracy to defraud the Registration and Electoral Office of the Hong Kong Government, contrary to common law and one count of inviting another person to vote at a board election knowing that that person for the purpose of registering as an elector at that election had made a statement which to his knowledge was false in a material particular, contrary to sections 10 and 14(1)(aa) of Corrupt and Illegal Practice Ordinance, Cap.288. The judge sentenced the respondent on the two counts to a fine of $4,000 each. The Secretary for Justice considers that the sentences are wrong in principle and/or manifestly inadequate. She applies for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221.

2. The respondent was one of three candidates in the Tai Po Hui constituency at the 1994 District Board Elections. In June 1994, he telephoned a friend, PW3, and requested the witness to vote for him in the that constituency. But the witness resided in another constituency. Hence, the respondent, through his wife, obtained some personal details from the witness and submitted a voter registration form in the name of the witness informing the Registration and Electoral Office that the witness resided in Tai Po Hui. The witness was therefore able to become an elector in the Tai Po Hui constituency and to nominate the respondent as a candidate. On Election Day, at the polling station, the respondent invited the witness to vote for him. These arrangements are commonly called "vote planting", i.e. arranging for an elector not belonging to a particular constituency to make use of false materials to register a change of address so that the elector can vote in that constituency.

3. The trial judge, at the time of sentence, pointed out that corrupt practices at an election are very serious offences, punishable by custodial sentences for many years. However, having considered the probation officer's report and counsel's submissions and taking into account the mitigation letters submitted to the court by the respondent's supporters, the judge accepted that the respondent had done some voluntary social service in the district, particularly helping the elderly. In view of the respondent's clear record and the fact that he would not participate in similar board elections in future so that the chance of committing similar offences is remote, the judge decided to give the respondent a chance and only fined him $8,000.

4. The Secretary for Justice's basic contentions are that the trial judge had failed to appreciate the nature of such offences, had underestimated the seriousness of the offences committed by the respondent and exaggerated the mitigating factors.

5. For many years, participation in regional elections in Hong Kong had generally been less than keen. Since the introduction of representative government in the 1980s, Hong Kong citizens have gradually become more eager to participate in the affairs of the community. It is necessary for each district to have people who can represent and serve the residents. The purpose of elections at different levels is to elect board members who can provide such service to the community. The best way to experience and practise democracy is to participate in elections either as electors or as candidates. An election system is an important foundation of social and democratic development. It is therefore essential to maintain that elections at all levels should be fair, clean, and have the confidence of the public. It is the responsibility of every citizen to achieve such objective. Corrupt and illegal practices in an election would ruin the integrity of the election. They not only greatly damage the confidence of the public towards elections but also affect the progress in the development of democracy. This would also create far-reaching adverse consequences to the whole community. As Litton JA in R. v. Leung Kam Ho [1995] 1 HKCLR 90 at 92, emphasized :

"There is almost nothing more important for the community at this stage of Hong Kong's development than that the growth of democracy should be untainted by corruption."

6. The Court of Appeal in England in the case of R. v. Phillips (1984) 6 Cr App R(S) 293 at page 295 took the same view :

"This Court agrees with the sentencing judge that matters of interference with the election process in this country are indeed very grave and serious matters. It is clearly of paramount importance that the voters at large should have the right to vote freely and secretly. In elections, matters should be conducted in such a way that everyone can have every confidence that the elections are properly held. Elections should be free from ballot-rigging or improper voting or using the vote of a dead person so as to further the interests of the party which someone happens to support. Those matters are absolutely fundamental to the working of true democracy in this country as this country knows it."

7. In order to maintain an election system which is fair and clean and has the confidence of the public, there is presently in our law a legislation which penalises all forms of corrupt and illegal practices in elections. According to the Corrupt and Illegal Practices Ordinance, any person who is guilty of a corrupt practice shall be liable on conviction on indictment to a fine of $500,000 and to imprisonment for 7 years. A person who is guilty of an illegal practice shall be liable on conviction on indictment to a fine of $100,000 and to imprisonment for 3 years. The seriousness of such offences is quite plain.

8. The materials provided by the Secretary for Justice show that in the 1994 District Board Elections, there was 73 cases concerning alleged corrupt and illegal practices at elections, of which 62 cases resulted in convictions. However, in the majority of such cases, only fines were imposed. In a few cases, sentences of imprisonment were ordered but suspended. There was only one case in which the defendant was imprisoned for four months.

9. We consider that these sentences have failed to reflect the seriousness of corrupt and illegal practices in elections and the damaging effect which they bring about. This will even give a wrong message to the public that it is not a matter of great importance to commit corrupt and illegal practices in elections. These will, no doubt, indirectly encourage similar crimes. In May next year, Hong Kong will hold its first Legislative Council election after the change of sovereignty. Elections at all other levels will also be held at a later stage. At this critical moment, the court has the responsibility to convey to the public a clear and important message: that is, any person who has committed corrupt and illegal practices in any election will no longer receive lenient sentences as in the past and will be punished harshly. If lenient sentences are continued to be imposed, this would lead to the break down of the whole election system. The elections in Hong Kong will certainly be relegated to those held in some countries in which corruption and violence are practised and will become the laughing stock of the world.

10. In R. v. Phillips, a lady obtained the ballot paper of a neighbour who had passed away. Using the name of the deceased, she made use of that ballot paper to cast a second vote. The English Court of Appeal considered that the matter was serious and that she must be severely punished. Although the lady was of previous good character, without any criminal conviction, and had frequently taken part in social service, the court still upheld a 2-month imprisonment. The lady was only an elector. In that case, the Court of Appeal said:

"We think that it must be in very, very rare circumstance in deed that someone who deliberately uses fraud in order to cast an improper vote at an election should not receive a substantial custodial sentence. We think that, in normal circumstances, a custodial sentence of more than two months would be justified for the type of offence which this appellant committed in this case."

11. We think that "vote planting" is a very grave election offence. The Boundary and Election Commission had seriously considered and worked diligently to divide Hong Kong into different constituencies for the purpose of elections at different levels and to devise election regulations. The Government authorities have also spent a lot of money, time, manpower and resources to preserve these constituency boundaries and election regulations. "Vote planting" is to deploy deceptive means to deliberately undo what have been done by the Boundary and Election Commission and the Government authorities. It is aimed at influencing election results, and will directly affect the fairness of the election and damage the election system. It is not only a fraud on the Registration and Electoral Office but also on the electors and other candidates. This would also lead to a re-election or by-election, thus wasting further time and resources. Such practice must be stopped at all costs. The court is duty bound to impose deterrent sentences in order to stamp out all sorts of corrupt and illegal practices.

12. We think that the principles in the English case R. v. Phillips are applicable in Hong Kong. In that case, the maximum sentence was two years imprisonment and the lady was sentenced to two months. It can be seen that the court considered such election offence very seriously. In Hong Kong, the maximum punishment for illegal practices is three years imprisonment. Hence, we think that "vote planting" and similar electoral illegal practices, whether they are committed by electors or candidates and campaigners, unless there are very special circumstances, must be punished by immediate custodial sentences. The length of sentence would depend on the degree and method of participation in such practices. We consider that an elector participating in such practices should receive an immediate custodial sentence of two months or more and a candidate or election campaigner four months or more. If such practices involve any form of advantage, or other corrupt and unlawful conduct, such as intimidation, threat, bribes, conspiracy or other more serious offences, the period of imprisonment would be even longer.

13. In the present case, the arrangements of the respondent was premeditated and involved certain planning. He did not only agree with the witness to defraud the Registration and Election Office, he also put such agreement into practice by submitting an elector's registration form and asking the witness to be his nominator in the Tai Po Hui constituency. Such conduct cannot be tolerated. Counsel for the respondent pointed out that the respondent had performed various voluntary social service in the district, had many supporters, had a clear record and a very stable and normal family background. We do not think that these are very strong mitigating factors. If the respondent had a previous criminal conviction or had not participated in social service in the area or had no supporters, he would find it difficult to take part in the election. On the contrary, if the respondent had taken part in voluntary community service, he should be in a better position to appreciate the importance of a fair and clean election. He should not have deliberately made use of his record of service to commit illegal practices. We think that the trial judge had not appreciated the nature and seriousness of these offences and had exaggerated the mitigating factors. We consider that a custodial sentence of four months would be more appropriate. Fines of $8,000 have completely failed to reflect the seriousness of such illegal practices. However, we consider that the sentences passed by the court in the past had been too lenient. If other offenders who had participated in the 1994 elections and committed corrupt and illegal practices had only received fines and/or suspended sentences, it would create a sense of grievance in the respondent if he were to receive an immediate custodial sentence now. Further, this case is also a review of sentence by the Secretary for Justice. According to previous decisions on review of sentence, if after the review, a respondent has to receive a much heavier sentence than the original sentence or the sentence is changed from one of non-custodial sentence to an immediate custodial sentence, the Court of Appeal should consider giving a reduction. In the present case, in the light of these special circumstances, and since this is also a case in which the Secretary for Justice is seeking a guideline from the Court of Appeal, we think that the new guideline should not apply to the respondent. We would give him a chance and suspend his sentence.

14. For the above reasons, we allow the application for review by the Secretary for Justice. We substitute a sentence of four months imprisonment for each offence both to run concurrently but the sentences would be suspended for two years.

Representation:

Mr Harry Macleod, Deputy Principle Government Counsel, and

Mr Lee Siu Keung, Senior Government Counsel, for HKSAR/Applicant

Mr Fu Chong Sang instructed by Messrs Fan & Fan for Respondent