HKSAR v. Chim Pui Chung

HCMA000955/1999

HCMA955/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.955 OF 1999

(ON APPEAL FROM ESCC NO.1142 OF 1999)

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Coram: Hon Gall J in Court

Dates of Hearing: 5 and 15 May, 6 July 2000

Date of Judgment: 8 September 2000

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J U D G M E N T

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1. The appellant was convicted after trial of two offences, contrary to the Corrupt and Illegal Practices Ordinance, Cap.288, namely, treating, contrary to section 7(a) and failing to obtain written authorisation to incur election expenses, contrary to section 12(1). He now appeals both those convictions.

2. The facts were that on 2 April 1998, there was to be an election to select an Election Committee whose task it was to elect 10 members of the Legislative Council. One of the constituencies entitled to elect members of that Committee was the financial services sector. They were responsible for electing 12 members of the Committee and there was 25 candidates standing for election. In the Financial Services Constituency, there were 382 registered voters. The appellant was a member of the Provisional Legislative Council and had been elected to that position by the Financial Services Constituency. He was not a candidate in the election of 2 April.

3. Six days before the election, on 27 March, the appellant held a dinner at the Carrianna Restaurant in Wanchai. The dinner consisted of a six-course banquet with wine that was delivered to the restaurant for use with the meal. There were about 90 people in attendance that fell into three categories. Firstly, those invited by the appellant; secondly, those invited by members of his staff acting upon his instructions; and thirdly, a small group who attended the dinner having heard that it was to be held and who attended without specific invitation. The dinner was held under the name of the Financial Services Association, a club of which the appellant was a minority shareholder. However, that club had nothing to do with the organisation of the dinner. The costs of the meal was paid for by a company called the Financial Services Association Limited, the directors of which were the son of the appellant and another man. The appellant was the sole signatory for the bank account of that company and in his interview with the ICAC, the appellant said that that company was a "sleeping" company which had been set up with a $500,000 donation from a mainlander. The inference to be drawn was that the appellant was in charge of that company and could direct the use of its assets.

4. During the course of the evening, the appellant made a short speech in which he referred to the current economic crisis. He referred to the election to be held on 2 April and to the need to elect capable people to the Election Committee so that the Financial Services Constituency was well represented. Handbills were distributed to the guests, that handbill giving the time and date of the election, the number of candidates to be elected and a list of 11 recommended candidates with a further list of three candidates under the heading "Please choose from one of the following three". As quoted in some evidence, the appellant mentioned the handbill in his speech and asked people to refer to it when voting but told them at the same time that they should make their own choice when they voted.

5. Upon those facts, the prosecution argued that the provision of that dinner was with the corrupt intention to influence the voters in the election on 2 April, and that by providing it, the appellant was incurring election expenses on behalf of the candidates who had been promoted and that it was without the authorization of those candidates. This made up the two offences of treating and the incurring of election expenses without authorisation.

6. The defence was that the appellant had done nothing corrupt in the provision of the dinner to the voters. It was the case for the appellant that he was a popular man in his constituency, that he was generous and the dinner was no different to others that he held for his constituency to keep them abreast of what he was doing on their behalf and to solicit their views. The nature and the style of the dinner was in keeping with the appellant's normal entertaining practice, and that looking at what he had provided in the context of his normal lifestyle, the meal was no different from any other that he had hosted for his constituency. The total bill had been in the sum of $60,000 for a menu of six main dishes.

7. The grounds of appeal were firstly that the magistrate erred in his definition of an "election meeting"; secondly, that he erred in ruling that the proviso under section 7(ii) of the Corrupt and Illegal Practices Ordinance did not infringe the Hong Kong Bill of Rights Ordinance; that he erred in ruling that the necessary and inevitable inference of guilt had been established on the prosecution evidence; that he erred in finding that "election expenses" were incurred on behalf of the candidates because it mattered not that he did so without their prior knowledge or agreement; and that there was a lurking doubt in respect of both of the convictions.

8. The magistrate considered the meaning of the words "election meeting". There is no definition in the Ordinance of the term "election meeting". The prosecution argued that the definition of "election meeting" given in the Electoral Affairs Commission Guidelines to candidates which was exhibited in the trial ought to be adopted. The magistrate accurately paraphrased the guidelines as :

"An election meeting is one used by a candidate or organised by any person or body for election campaigning purposes or with a view to promoting the candidature of a person either directly or indirectly. The meeting does not have to be used or organised exclusively or even mainly for such purposes, provided that such use or organisation is more than merely minimal."

9. Mr Hoo argued before me as he did in the court below that the magistrate ought to have adopted a definition of "election expenses" set out in section 2 of the Corrupt and Illegal Practices Ordinance and applied it to the words "election meeting". "Election expenses" are defined as those "incurred by a candidate and by any other person on the candidate's behalf on account of or in respect of the conduct or management of the election or for the purpose of promoting or procuring the election of that candidate". From that definition he argued that unless the meeting is held by a candidate or by any other person on the candidate's behalf with the consent of the candidate, it does not constitute an election meeting. And further, that there was no evidence led before the magistrate upon which he could find that any of the candidates in this case organised the meeting. He pointed to the evidence from the candidates themselves that the appellant was not acting on their behalf, whether as agent, promoter or campaigner, and that he did not volunteer to act as such.

10. I must agree with the definition of the words "election meeting" in section 7(2) of the Ordinance as being one organised by a person for election campaigning purposes, or with a view to promoting the candidature of a person either directly or indirectly. The intention of the legislature in the wording of Section 7 must have been to strike at the practice of the serving of meals to a gathering promoting the candidature of a particular person or persons so as to affect their votes. To narrow that definition by restricting it to gatherings held by the candidate himself or by any other person with consent on his behalf would narrow the scope of the section unduly. The words "election meeting" must be given their ordinary meaning. The first ground of appeal must fail.

11. The second ground of appeal also involves section 7(ii) of the Ordinance. Section 8, article 11(1) of the Hong Kong Bill of Rights Ordinance holds that :

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

12. Section 3(2) of the Bill of Rights Ordinance provides for the repeal of all legislation that does not admit of a construction consistent with the Bill of Rights Ordinance. Section 7(ii) is a proviso to Section 7 and provides :

"(ii) The serving of meals of any kind incidental to an election meeting shall of itself prima facie be deemed corrupt within the meaning of this section."

13. The appellant argued that the sub-section is a presumption throwing upon the appellant the obligation of proving, on the balance of probabilities, that the provision of a meal incidental to the election meeting was not corrupt and that by placing that onus upon him, he was deprived of his right to be presumed innocent enshrined in article 11 of the Bill of Rights Ordinance.

14. The magistrate accepted that the presumption impaired the right provided by article 11 (1), but held that the impairment of the rights of the appellant was "as little as possible" and that the existence of the presumption was appropriate to combat the criminality of the offence it served. In Attorney General of Hong Kong v. Lee Kwong-kut and Others [1993] 2 HKCLR 186, Lord Woolf said at p.197 :

"Some exceptions will be justifiable, others will not. Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which Article 11(1) enshrines. The less significant the departure from the normal principle, the simpler it will be to justify an exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable. In deciding what are the essential ingredients, the language of the relevant statutory provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v. United States (1969) 23 L Ed 2d 57, 82 'it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend'."

15. In the case before me, the essential elements of the offence are that the offender must be proved to have, in a context of this case, given food and drink to persons with the corrupt intention of influencing their votes. The proviso under section 7(ii) places the prosecution in the position of having to prove only that an election meeting was held and that a meal was served incidental to that election meeting for the element of corruption to be prima facie deemed by the subsection. Therefore, this is one of the examples of a presumption where the court must scrutinize very carefully its incursion upon the rights given under the Bill of Rights Ordinance, and which , in the words of Lord Woolf "will be difficult to justify".

16. I must therefore consider whether the interference of the rights of the individual preserved by article 11(1) is justified by the benefit that section 7(ii) brings to the state in ensuring that election campaigning is free of corrupt practices. In my view, the incursion is justified. It must be the policy of the legislature that elections be kept free of corruption, and given that an honest legislature is essential to the proper governance of Hong Kong, measures to ensure that honesty are very important. The existence of this proviso affects only those persons who conduct what can be defined as "election meetings" and persons who provide food and drink incidental to those meetings. Whilst the proviso does go to an element of the offence, I hold that it is justified in doing so. This ground of appeal must also fail.

17. I would noted that, in any event, the magistrate having ruled that the section did not infringe article 11(1) of the Bill of Rights, went on to say that he had no need to rely upon the proviso as the element of corruption was made out on the face of the evidence and the inferences to be drawn from it in any event.

18. The third ground of appeal was that the magistrate erred in ruling that the "necessary and inevitable inference" of guilt had been established on the prosecution's evidence. Mr. Hoo relied upon two arguments, firstly, the nature of the dinner meeting and behaviour of the guests on the evidence clearly, unequivocally and expressly indicated that the meeting was not for the purpose of influencing the guests in their manner of voting at the election; and secondly, that the magistrate drew a number of important and prejudicial inferences which were unfounded and inconsistent with the evidence. Mr Hoo has taken me through cases which deal with corrupt treating in the context of an election. These cases were also before the magistrate. In his findings, he said this :

"In the Bewdley case, Blackburn J said that 'corruptly' does not mean wickedly, immorally, dishonestly or anything of that sort. It means acting with the object and intention of doing that which the legislature plainly means to forbid. This and other cases show that a clear distinction must be drawn between mere innocent treating and corrupt treating. Whether the treating in question falls into one category or another is a question of fact for the court in what the authorities describe as an important part of its judgment, namely the scale of the treating and the circumstances under which it is given, including the elements such as the proximity to the election concerned - that is the Wigan case - or even the electoral experience of the person providing the treat - the Bodmin case, Grantham J at p.230.

The intention of the treating must be to influence votes, to influence someone to give or refrain from giving his vote. That could, for example, include obtaining or keeping the support of a voter or influencing a voter who might not otherwise bother to turn out to vote - Bodmin. The treating must have a continuing operation upon the voter at the time that he votes or is expected to vote. Clearly that too is a question of fact and the closer the treating is to the time of the election, the easier it will be to draw the inference that the treating had and was intended to have a continuing effect. But corrupt treating must not be confused with the perfectly proper activity of exerting legitimate influence on potential voters.

It is plain that the key to the issue of corrupt treating is the intention of the person providing the treat. If the intention or, to put it another way, the purpose, of the provision of food or drink is to influence the votes of the persons to whom it is provided, then it is corrupt because it does exactly what the legislation is plainly designed to forbid."

I cannot fault that statement of the law, and it indicates that the magistrate had in the forefront of his mind the correct test to be applied in this matter and the manner in which he should approach the evidence.

19. Mr Hoo argued in respect of the first part of this ground of appeal that the magistrate, having defined the law correctly and having set out the evidence failed to properly apply that law and to ignore those facts. It is his argument that the evidence as it emerged was gave rise not to the inference that the meal had been provided corruptly, but that it proved, given the character of the appellant and his previous history of providing meals for those in his constituency and his friend, that the meal in question was no more than normal entertainment. And that the reference to the election made in his speech by the appellant was no more than his usual practice of addressing a dinner and referring to matters of interest to his constituency and friends. He points to evidence that the appellant had always demonstrated a strong and genuine concern to the broking side of the securities industry and that this dinner was directed principally at that segment of his constituency. Further, that he had held such dinners before, almost all the witnesses had regularly attended those dinners; that there was from them no prior ascertainment by the appellant as to whether they were voters and that the major topic in his speech that night was the stock market situation of that time; that capable people should be elected and that those voting should vote according to their own choice; and that he did no more than list his personal opinion of candidates with a list as a guideline. He had not told guests to vote or not vote for particular candidates and that none of the witnesses formed the impression that he was trying to either buy or influence their votes.

20. The magistrate considered all of these evidence and said this in his findings :

"The necessary and inevitable inference to be drawn from the appellant's action in linking the dinner for voters to the influence he intended to exert was that he could thereby enhance the turn out of potential voters from the constituency in question, set them at ease, concentrate their attention to a reasonable extent and thereby make them more receptive to the influence which he intended to exert upon them. There was an empty exhortation by the appellant to the voters to make their own choice in the context of a dinner, provided by such an influential man who had distributed a list of recommended candidates and was introducing those candidates by asking them to make speeches; all the more so after he had informed everyone that capable representatives were needed on the Election Committee and why they were needed. When he told them to use the list of candidates on the handbill for 'reference', he was asking them to accept both his hospitality and his advice as to how to vote. This amounted to treating and I had no doubt that it was more than merely innocent treating: it was done corruptly."

21. The magistrate set out six factors, being matters of fact, that assisted him in coming to the conclusion that the meeting was not to discuss the economic climate or to report to his constituents.

22. Mr. Hoo argued that some of the facts relied upon by the magistrate were not supported by the evidence I have set out very briefly above, and contrary to the direct evidence of witnesses. There is some merit in that claim.

23. At paragraph 4 of the Statement of Findings, the magistrate said : "the guests were almost exclusively authorized voters in the election." It is agreed by the respondent to this appeal that that is factually wrong.

24. Secondly, at paragraph 15 of his findings, the magistrate said : "two [of the guests] of being embarrassed at what they regarded as electioneering activity which they had not anticipated". This statement is also agreed by the respondent as not having been led in evidence.

25. Whilst these errors occurred, neither of them, in my view, affects the overall body of evidence available to the magistrate for his decision.

26. The question to be considered is whether in drawing the inference that he did, the magistrate was drawing the only inference available on that evidence, or whether there were competing inferences and that the magistrate ought to have drawn that in favour of the appellant.

27. I have had the benefit of lengthy argument from Mr Hoo and from Mr Ryan. I do not propose to rehearse all those arguments here. Suffice it to say that the findings of the magistrate indicated that his approach to the law in this matter was the correct approach. He had fully in mind the evidence led before him. I am of the view that he is entitled to come to the conclusion that he did and draw the inferences that he drew.

28. The fourth ground of appeal is that the magistrate erred in finding that election expenses were incurred by the appellant on behalf of the candidates because it mattered not that he did so without their prior knowledge or agreement. If that argument is right only expenses directly incurred by the candidate or incurred by any other person on his behalf need be authorized in writing by the candidate but in respect of any other person only if incurred with the prior knowledge and agreement of the candidate. Mr. Hoo argues that without the addition of the knowledge and agreement of the candidate to the expenditure the words "on the candidates behalf" in the definition will be otiose. However in my view the words re-enforce the intent of the definition that the expenses incurred by another must be in the election interests of that candidate and not the election at large or any other candidate.

29. Mr. Hoo cites the case of R v Chih Wan Wan Vivian and Fung Sai Mui, Magistracy Appeal No. 190 of 1996 as authority for the proposition that the knowledge or agreement of the candidate to the incurring of election expenses is necessary to the definition. In that case the issue was not one of consent but whether the moon cakes which were being distributed to the needy adjacent to where the candidate was handing out election materials were distributed to assist the campaign of the candidate. If they were they were an election expense. The finding in that case was that since no nexus between the organizations giving the moon cakes and the candidate could be inferred from the evidence and no other evidence was available to show the cakes were distributed on her behalf the appeal was allowed. It does not hold that the consent or the knowledge of the candidate prior to the incurring of the expense is implicit in the definition. I am satisfied that on the ordinary construction of the definition knowledge and/or agreement of the candidate prior to the incurring of the expense is not necessary to the definition of election expenses in the offence. This ground of appeal must fail

30. The last ground of appeal is that there is a lurking doubt in respect of this conviction. Although this ground is a general ground found as the last ground in many appeals it is worthy of as close a scrutiny as any other ground. An appeal court does not re-hear the evidence and substitute is findings for that of the court at first instance and an appellate court will be slow to interfere with the findings of the court below when the magistrate or judge has applied the law correctly and has properly considered the facts. That proposition does not affect the duty of a judge on appeal to look at the case as a whole and to decide whether justice has been done or whether notwithstanding no error on the part of the court below the conviction ought not stand. I have considered the arguments on the law of Mr. Hoo and Mr. Ryan. They were the arguments before the magistrate. I have considered the arguments on the facts raised by Mr. Hoo. They were also before the magistrate. I have found he dealt properly with both and notwithstanding a full consideration of the case generally and the conclusions reached by the magistrate on facts and law I have no lurking doubt in respect of this conviction.

31. This appeal against conviction is dismissed.

Representation:

Mr B.M. Ryan, SADPP and Miss Maggie Yang, SGC of Department of Justice, for the Respondent

Mr Alan Hoo, SC leading Mr Lee Wai Keung, instructed by Messrs Dixon Tang & Co., for the Appellant