HKSAR v. Wong Kwok Pong, Keith Paul

HCMA 160/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 160 OF 2012

(ON APPEAL FROM FLCC 239 OF 2012)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 11 May 2012

Date of Judgment: 16 May 2012

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J U D G M E N T

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1.This is an appeal against a sentence of two months’ imprisonment passed on the Appellant in the Magistrates’ Court (Josiah Lam Esq) for corrupt conduct with respect to voting at an election, contrary to sections 6(1)(a) and 16(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554, to which offence he had pleaded guilty.

2.At the time of the offence, the Appellant was in his late 30s and had a clear record.  He admitted the facts set out in a Summary of Facts which reads as follows:

“1. The dual representation system in Village Representative (VR) elections was first introduced in 2003. There are two types of VRs, namely Indigenous Inhabitant Representative (IIR) and Resident Representative (RR). An IIR is returned by indigenous inhabitants of a village and their spouses whilst a RR is returned by residents, both indigenous and non‑indigenous inhabitants, of that village.

2. At all material times, the defendant is an indigenous inhabitant of Tai Mei Tuk Village (TMTV) in Tai Po. He was registered as an elector of the 2011 RR Election of TMTV (the Election). The Election was held on 2 January 2011. The defendant voted at the Election.

3. According to the Application for Voter Registration submitted by the defendant to the Home Affairs Department (HAD) on 8 March 2003, the Principal Residential Address (PRA) of the defendant was No. 161, TMTV (Address 161).

4. Address 161 was jointly owned by the defendant and his father between 1994 and 2006 until it was then sold to a married couple, Madam DUN Hi-ying (PW1) and Mr WONG Hau-kwan. PW1 confirmed that she had jointly purchased Address 161 with her husband on 12 May 2006 and had been residing therein since then. PW1 confirmed that they had never leased Address 161 to any person.

5. According to the Land Registry records, since 2009, the defendant has owned the premises at Flat H, 11/F, Block GH, Fulham Garden, No. 84 Pok Fu Lam Road, Pok Fu Lam (Address FG). According to the records of Towngas and the Transport Department, the defendant has been the registered account holder at Address FG since May and September 2010 respectively.

6. When interviewed under caution on 14 July 2011, the defendant stated that before 2006, he had been living with his parents at Address 161. After Address 161 was sold in 2006, he moved to Victoria Garden, Pok Fu Lam (exact location forgotten) (Address VG) for about four years and in 2010 he purchased and moved to Address FG. The defendant confirmed that he spent most of his time in Address VG and later Address FG since 2006. He also admitted that he had no longer resided in Address 161 for the three years preceding the Election. The defendant agreed that he had not informed the authority about the change of his PRA.

7. Madam CHOI Wing-yee, Cornelia, Presiding Officer of HAD (PW2) was the officer-in-charge at the Polling Station of the Election. She stated that HAD would remind all electors of the Election of the eligibility requirement inside the Polling Station of the Election by showing a “Standard Dialogue” to each elector when the electors entered the Polling Station. The “Standard Dialogue” reads, “If registered electors of the Resident Representative election no longer reside in the village for which they are registered, or the PRA recorded in the register of electors are no longer the addresses of their sole or main homes, they are disqualified from being registered as electors. It is an offence if they cast their votes in an election.” PW2 also stated that the polling officers who were responsible for distributing ballot papers would ask electors whether they had read the “Standard Dialogue” and whether they understand the content. The Polling Officer would issue a ballot paper to the elector only after confirming that the elector understood the contents of the “Standard Dialogue”. Polling Assistants who were on duty at the Polling Station of the Election confirmed that they had reminded all electors of the Election about the residency-in-village requirement and had shown them with the Standard Dialogues.

8. Under caution, the defendant admitted that he had seen the “Standard Dialogue” before he cast his vote in the Election.”

3.The Magistrate felt that he had no option but to impose an immediate custodial sentence, took a starting point of three months and discounted it by a third for the guilty plea.

4.It is contended in the single perfected ground of appeal filed on the Appellant’s behalf that the sentence of two months’ imprisonment passed on the Appellant is both manifestly excessive and wrong in principle in that the Magistrate failed adequately to take the following into account:

“(1) the plea of guilty;

(2) the impeccable antecedents of the appellant;

(3) a clear record;

(4) genuine remorse;

(5) the fact that the offence was committed as a result of a genuine mistake of law by the Appellant in that-

(a) although ethnic Chinese the appellant was both born and raised in Ipswich, England;

(b) he could neither read nor write Chinese;

(c) his spoken Cantonese was poor;

(d)   although entitled, as a hereditary New Territories descendant, to vote in village elections he was, on residential grounds, not entitled to cast a vote in this particular election, a fact of which he was unaware.”

5.The Magistrate gave the Appellant a one-third discount for his plea of guilty.  He referred to the Appellant’s “previous good character”, his “good job”, his “family” and letters that “several people of standing” wrote to “plead for mercy” to be shown to him.  It is true that the Magistrate said that those were “not exceptional circumstances for mitigation”. But that does not mean that he wholly ignored them.  The Magistrate said nothing about “genuine remorse”, but being remorseful would not dictate a lesser sentence than the one imposed.

6.As for the contention that the Appellant was unaware that he was not entitled to vote at the election concerned, such a contention is inconsistent with his guilty plea to a charge of corrupt conduct with respect to voting at an election, contrary to s 16(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance, the definition of which offence requires knowledge on the part of the defendant that he is not entitled to vote.  That is because s 16(1)(a) provides that “A person engages in corrupt conduct at an election if the person … votes at the election knowing that the person is not entitled to do so.”  Thus the particulars of the charge to which the Appellant pleaded guilty state that he voted at that election “knowing that he was not entitled to do so”.

7.The seriousness of corrupt conduct at an election is obvious and considerable.  As to the past sentences to which my attention has been drawn, I would observe that to a greater or lesser extent circumstances vary from case to case, but I do not regard the sentence passed on the Appellant to be wrong in principle, manifestly excessive or in any way beyond the range within which the Magistrate was entitled to pass sentence in the present case.  In my judgment, there is no basis on which to interfere with this sentence.  The appeal is therefore dismissed.

Mr Kevin B Egan, instructed by Hart Giles, for the appellant

Mr Richard Ma, of the Department of Justice, for the respondent