HKSAR v. Lai Wai Cheong

[English translation – 英譯本]

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Criminal Appeal No. 314 of 1997

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Coram: Hon. Chan CJHC, Leong & Yeung JJ. in Court

Date of Hearing: 20th November, 1997

Date of Judgment: 20th November, 1997

Judgment

Leong J. (delivering the judgment of the Court):

1. The applicant, LAI Wai-cheong, was convicted on two counts in the District Court, namely on the third count of Conspiracy to defraud and on the fifth count of Inviting another person to vote at an election, knowing that such person has made a false statement for the purpose of registering as a voter, contrary to s.14(1)(aa) of the «Corrupt and Illegal Practices Ordinance» (Cap. 288) of the Laws of Hong Kong. The district judge fined him 4,000 dollars on each of the two counts. The applicant now applies for leave to appeal against conviction on the two counts and to have the convictions quashed.

2. According to the facts admitted by both the prosecution and the defence during the trial, the applicant was one of the candidates in the Tai Po Market District Board Election in June 1994. The legislation provides that only those who have registered as voters in the Tai Po Market constituency may vote in that constituency at that election. For a person who wishes to apply for registration as a voter in that constituency, his principal place of residence has to be within the boundary of that constituency. He must sign and fill in his particulars in his application, including his principal place of residence.

3. The evidence in support of the charges came mainly from the evidence of PW3 and Exhibit No.5. PW3 stated that he had known the applicant and the applicant's wife since childhood. He addressed the applicant as elder brother. In June 94, the applicant telephoned the witness and said that he was to stand for the Tai Po Market District Board membership election. He requested the witness to vote for him and to provide personal particulars to him. The witness subsequently gave his personal particulars to the applicant's wife.

4. At that time, the applicant knew that the witness lived in Nam Wah Po Tsuen, which was outside the Tai Po Market constituency. The witness also told the applicant over the phone that he used to vote at Nam Wah Po Tsuen. However, the applicant said that he could arrange for the witness to vote at Tai Po Market. The witness said that he had never applied for the registration nor signed on any registration form. Although his name appeared on Exhibit No.5 (Change of Address Form), he was not the one who signed it. He had never lived at the address shown in the form, i.e. M/F, 4 Wai Yan Street. On the polling day, he saw the applicant at the polling station. The applicant asked him to vote for the applicant.

5. The witness stated that on the day when the applicant telephoned him, he had said, "Yuen Chai, I am Cheong Ko. I want to stand for the District Board membership election in Tai Po Market (constituency)." Then they discussed something including the address of the witness. He recognised the person on the phone as the applicant because he clearly said, "I am Cheong Ko."

6. As regards the allegation that the person on the phone had said "I am Cheong Ko", the applicant did not take issue, and there was no evidence to show that it was not true either. However, the applicant in his defence denied that he had talked with the witness on the telephone or asked the witness to vote for him.

7. The trial judge accepted the evidence of PW3. The judge found that the applicant had telephoned the witness, and the witness agreed to support the applicant to stand for the District Board membership election in the Tai Po Market constituency and also gave his personal particulars to the applicant's wife. The applicant knew that the principal place of residence of the witness was not within the boundary of the Tai Po Market constituency but he registered for the witness with a false address so that the witness could become a voter in the Tai Po Market constituency and then nominate the applicant as a candidate to stand for the District Board membership election in that constituency. Subsequently, the applicant, knowing that the witness could not vote legitimately in the Tai Po Market constituency, still invited the witness to vote there. Therefore, the act of the applicant was sufficient to constitute the two offences.

8. The grounds of appeal touch on various aspects.

1. There was no evidence to prove that the applicant did conspire with LAU Cham-yuen to defraud the Registration and Electoral Office;

2. The judge did not remind herself to be particularly prudent handling the reliability of the identification evidence;

3. The judge wrongly used the contents of the telephone conversation between the witness and "Cheong Ko" as grounds for conviction;

4. Without any legal justification, the judge stopped the lawyer for the appellant from cross-examining the witness on how he was able to recognise the voice of the applicant;

5. The prosecution did not have any evidence to prove that the applicant did invite the witness to vote. The fifth count was not proved.

9. A conspiracy offence involves two or more persons who have reached an agreement to do an unlawful act or to do a lawful act by unlawful means.  It is not easy to prove a conspiracy offence. Usually, there are only two ways. The first one is for the conspirators to confess to the police and disclose that they have reached an agreement with the other person(s) to carry out an unlawful practice, or for one of the conspirators to give evidence against the other parties to the conspiracy and reveal what agreement has been reached. The second way is to draw an inference from the subsequent acts of the conspirators as to whether they have previously reached an agreement and then carried it out accordingly. The court can objectively analyse and draw the appropriate inference from proven or undisputed facts.  If the only reasonable conclusion that can be drawn is that the conspirators must have reached an agreement, or else a series of acts would not have been carried out, then this is sufficient proof.   With regard to the first ground, the evidence accepted by the judge covered not only the telephone conversion between the witness and the applicant, but also the undisputed facts including the obtaining of the witness’s personal particulars by the applicant’s wife, the change of residential address form which had not been signed by the witness, the form signed by the witness for nominating the applicant to be a candidate, the vote given for the applicant by the witness in the Tai Po market constituency, etc. The judge was entitled to draw an inference from these facts. The evidence for the third count of conspiracy to defraud turns on the proof of the existence of a dishonest agreement between the applicant and the witness in arranging the witness, who lived at Nam Wah Po Tsuen, Tai Po, to vote in the Tai Po Market constituency by fraudulent means together with the proof that the applicant was party to this agreement. The evidence accepted by the judge was sufficient to prove that the applicant knew that the witness lived outside the Tai Po Market constituency, that it was impossible for him to vote in that constituency and that therefore, he made an agreement with the witness to arrange for the witness to be a voter in the Tai Po Market constituency so that the witness could nominate the applicant to be a candidate and finally vote in the Tai Po Market constituency. To achieve this objective, it was necessary to register a false address for the witness. Thus, there was sufficient evidence for the judge to draw such inference. The decision on this point is unchallengeable. The first ground of appeal does not stand.

10. As to the second and third grounds, counsel for the applicant cited R v. Chan Wan Cheung & Li Ka Leung (Cri. App. 664/95). He submitted that the judge did not state in her judgment that in considering the identification evidence of the witness, she had followed the guidelines in Turnbull. Hence, no thought was ever given to the danger of supporting a conviction with this kind of evidence, and the conviction of the applicant was unsafe. In the case of Chan Wan Cheung & Anor, the Court of Appeal held that in trying cases involving identification evidence, if the Turnbull guidelines were not expressly quoted in the judgment, the district judge should at least give an indication, either expressly or by implication, that he had all along had in mind the danger of supporting a conviction with this kind of evidence. If this was not done, the conviction might be considered as unsafe and thus might be quashed.

11. This Court agrees that the Turnbull guidelines are applicable to evidence of identification of appearance or voice, and they should be followed. However, the case of Turnbull was decided in the light of special circumstances where the identifying witness only had a fleeting glance of the suspect or heard the voice of the suspect for a short time and subsequently pointed out a stranger or an unfamiliar person based on what he had seen or heard. If the identifying witness and the suspect were already well acquainted, and the identification was solely based on their previous association, the judge need not follow the guidelines in Turnbull. The Court of Appeal had clearly indicated this point in the case of R v. Cheung Hay Din & Ors [1991] 1 HKC 250. The witness in this case knew the applicant and was also familiar with his voice and his manner of talking over the phone. Based on these two aspects, he recognised that it was the applicant who telephoned him. Therefore, the situation is not within the scope of the guidelines set down in the Turnbull case. Moreover, although the judge did not expressly state in her judgment that she had followed those guidelines and reminded herself of the need to deal with the identification evidence of the witness prudently, this does not indicate that the judge had overlooked this point. In the case of

12. The witness had known the applicant for years, and naturally he could recognise the applicant’s voice. The witness also said that usually when the applicant telephoned him, he would always identify himself first. If the person on the phone said, "I am Cheong Ko", the witness would immediately recognise him as the applicant. On that day, the person on the phone said that he was "Cheong Ko", and the conversation lasted for some time. There was a discussion about the witness's place of residence, and therefore it was not a brief conversation. By his own experience and from the manner and voice of the applicant in talking over the phone, the witness identified the one who telephoned him as the applicant. The judge was satisfied with this piece of evidence beyond reasonable doubt. In addition, right after the telephone conversation, the applicant’s wife collected the personal particulars of the witness and told the witness when to vote. This could support the witness’s version. The findings of the judge in this area are unchallengeable. There is nothing improper for the judge to use it as corroborative evidence.

13. As to the fourth ground, the notes of proceeding show that the question raised by the defence and objected to by the prosecution was a hypothetical one. It was not a question based on the facts for the prosecution or points raised by the defence. It was unfounded and kind of fishing expedition. It was not necessary for the witness to answer this type of questions. The judge has the responsibility to guard against abusing the right of cross-examination and has the right to stop this type of questions. The notes of proceeding show that apart from stopping the applicant from asking this question, the judge did not prevent the applicant from further questioning. However, counsel for the applicant at the trial did not further pursue this line of cross-examination. There is nothing improper for the judge to act as she did in accordance with the law.

14. Counsel for the applicant pointed out that on the polling day, the witness had already decided to vote for the applicant. The prosecution did not have any evidence to prove that the applicant had "invited" the witness to vote. Counsel submitted that both "invite" and "induce" had the same definition, meaning to "procure", "lead" or "solicit" the act of others. He referred to the definition of the word "induce" given by Li J. in the case of Law Ming Tak @ Law Tak v. The Queen (Cri. App. 266/75) to support his argument. In that case, Li J. was of the opinion that the words "induce", "invite" and "incite" all had the same connotation. That is to say, all of them basically bore the meaning of "solicit or encourage", "affect” or "stimulate". Counsel pointed out that in this case, the witness had already decided beforehand on how to vote, whether the witness would vote or how he should vote was not affected by the applicant. Therefore, the applicant did not "invite", and the fifth count was not proved.

15. The evidence accepted by the judge sufficiently proved that the applicant knew that it was not possible for the witness to vote legitimately in the Tai Po Market constituency. Since the applicant had reported a false residential address for the witness, the witness became eligible to vote at the polling station of that constituency on the polling day. The judge also accepted that the applicant had, at that polling station, asked the witness to vote for him. By inviting the witness to vote in false circumstances, the applicant committed the fifth count on the indictment. It was immaterial that the witness by that time had determined to vote or had decided on whom to vote for. The elements of this offence hinged not on what the witness thought at that time but on whether the applicant knew the false identity of the witness and whether he had invited the witness to vote in such a manner. The act of inviting was sufficient to constitute the offence. The last ground of appeal also does not stand.

16. In the premises, the application for leave to appeal is refused.

Mr. Harry Macleod, Deputy Director of Public Prosecutions, and Mr. Robert Lee, Senior Government Counsel for HKSAR/Respondent

Mr. C.S. Fu instructed by M/S Fan & Fan for the Applicant