HKSAR v. Yim Sze Ming and Another

HCMA 610/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIAVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 610 OF 2012

(ON APPEAL FROM KCCC 2353 OF 2012)

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J U D G M E N T

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BACKGROUND

1.The two Appellants (Yim Sze-ming (A1) and Yim Mei-ki (A2)) in HCMA 610/2012 and the Appellant (Yim Hoi-man (A3)) in HCMA 616/2012 are sisters.  All three of them pleaded guilty before the Magistrate to one count of “engaging in corrupt conduct with respect to voting at an election”, contrary to sections 6 and 16(1)(b)(i) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554.

2.Upon conviction, the Magistrate adopted a starting point of 3 months.  Having given each of them a one-third reduction to take account of their pleas, the Magistrate sentenced each Appellant to a term of 2 months’ imprisonment.

3.All three Appellants now appeal against their sentences.

SUMMARY OF FACTS

4.In brief, each Appellant admitted that she had provided a false address in her Voter Registration Form submitted to the Registration and Electoral Office (“REO”).  They further agreed that according to the REO’s records, ballot papers had been issued to them and they were taken to have voted at the 2011 District Council Election (the King’s Park Constituency).

MITIGATION BEFORE THE MAGISTRATE

5.Both A1 and A3 had a clear record.  As regards A2, she had a previous record of “driving a motor vehicle with alcohol concentration above the prescribed limit” in 2001.

6.A1 is aged 25 and is single, living with her parents.  She worked as a clerk.  A2 is aged 35 and is married with a 6-year-old daughter.  A3 is aged 29 and is divorced, living together with A2 and A2’s family.  A2, A2’s husband and A3 all worked in the same company.

7.In mitigation, it was said that the three sisters patronized, several times a month on average, Lok Yuen Restaurant which was operated by Wong Biu, one of the candidates standing election at the King’s Park Constituency.  They were asked by the staff of the Restaurant to sign on the Voter Registration Forms.  The address on the forms was left blank at that time.  They signed in order to help and they did not get any reward.

8.It was further said that on the day of the election, as A1 was unhappy, she sought to kill time by acting as a volunteer for Wong Biu.  A2 and A3 went there to accompany A1. 

GROUNDS OF APPEAL

9.The grounds of appeal relied on by Mr McCoy, SC, could be summarized as follows :

(a) the Magistrate did not properly apply SJ v Lai Wai Cheong [1998] 1 HKLRD 56 or R v Phillips (1984) 6 Cr App R (S) 293;

(b) the Magistrate failed to consider CSO or other relevant sentencing options before imposing a prison term; and

(c) in the circumstances of this case, the sentences imposed are manifestly excessive or wrong in principle.

THE AUTHORITIES & CSO

10.I shall deal with the first two grounds together.

11.In his written submissions, Mr McCoy criticized the Magistrate for having failed to note the facts in the cases of Lai Wai Cheong and Phillips which made those cases more serious than the one before the Magistrate.  In particular, Mr McCoy contended that the sentences mentioned by Chan CJHC (as he then was) in Lai Wai Cheong were only obiter dicta and the case of Lai was not a binding precedent for the sentencing of these Appellants.

12.At the appeal hearing, however, Mr McCoy accepted that Lai Wai Cheong laid down the sentencing guidelines in respect of offences like vote planting and electoral fraud.

13.To recapitulate, Chan CJHC, had this to say in Lai Wai Cheong,

“We think that “vote planting” is a very grave election offence. … “Vote planting” is to deploy deceptive means to deliberately undo what has 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.

… 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.”(p 60 C-H)

14.What is clear from the above is that deterrent sentences are called for in respect of offences like vote planting and electoral fraud; that unless there are very special circumstances, an immediate custodial sentence of two months or more is to be imposed for an elector participating in such practices; and that the sentence could be enhanced if there are other aggravating factors.

15.Mr McCoy’s major complaint is that the Magistrate had failed to take into account the special circumstances of the Appellants and had therefore failed to consider other sentencing options, in particular, a community service order.

16.What Mr McCoy described as the special circumstances of the three Appellants were these :

(a) the Appellants pleaded guilty;

(b) the Appellants come from the same family;

(c) the Appellants only committed the offences at the invitation of the staff of the Restaurant and they did not obtain any personal gain;

(d) the Appellants are weak individuals lacking sophistication;

(e) the Appellants have only acquired a relatively low level of education;

(f) while the Appellants knew what they were doing, they did not fully understand the consequences of their acts; and

(g) the Appellants’ acts did not alter the election result as Wong Biu came last in the election.  Further, there was no re-election as a result of what the Appellants did.

17.Having examined the above, I do not consider these matters, whether viewed individually or collectively, as constituting “very special circumstances”.

18.In my view, whether or not the Appellants committed the offences at the invitation of others, it remains a fact that they knew full well what they were doing at the time.  They did not only sign on the Voter Registration Forms.  They in fact went ahead to vote in a constituency in which they were not entitled to vote.  It is true that they come from the same family and the impact of imprisonment on their family members would not be light.  However, it is equally true that they did not act alone.  They acted together and, as accepted by Mr McCoy, this is an aggravating factor.

19.As regards the lack of any personal gain, my observation is that if the Appellants’ acts involved the obtaining of an advantage, then this would be an aggravating factor justifying an upward adjustment of the sentences.  In other words, the lack of such could not be viewed as a special mitigating factor.

20.Further, although Wong Biu came last in the election, it does not mean that the Appellants were therefore less culpable.  What they did at the time had no doubt interfered with the election process for they had no right at all to vote in that constituency.  The evil of vote planting and similar offences lies in such interferences.  These are what the court seeks to stamp out by imposing deterrent sentences.

21.Concerning the absence of CSO reports, I note that counsel had raised this in mitigation before the Magistrate (see HCMA 610/2012 Appeal Bundle p 36 E-G, L-M and HCMA 616/2012 Appeal Bundle p 22 A-B, J-K).  It is therefore incorrect to say that the Magistrate was not alerted to this.

22.In my view, the Magistrate must have considered CSO not a viable option in this particular case and he thus called no such reports.  This assessment of the Magistrate was well justified given the guidelines laid down in Lai Wai Cheong and given that there did not exist “very special circumstances” in respect of any of the Appellants for the Magistrate to impose other than an immediate custodial term.

23.Apart from the alleged failure of the Magistrate to consider the option of CSO, Mr McCoy also contended in his written submissions that the Magistrate had taken into account unfounded prejudicial matters into consideration, like the possibility of a re-election and that the Appellants must have intended to influence the election results.

24.There are no merits in this criticism.  In relation to the former, when one reads the Magistrate’s Reasons for Sentence, one could readily see that the Magistrate was only quoting from Lai Wai Cheong.  He was not saying that a re-election had resulted in this case and therefore the Appellants had to be punished more severely.  In relation to the latter, the Magistrate was plainly entitled to make that comment.

25.Finally, Mr McCoy also referred to other cases in which the defendants were punished other than by way of an immediate custodial term.  Clearly, the facts in each case and each defendant’s background could not be identical.  A simple reference to how other defendants had been dealt with is of no assistance to these Appellants.  Needless to say, even if the defendants in the other cases were treated more leniently than was justified, it does not mean that these Appellants would then be entitled to the same windfall.  What matters is whether the sentences passed in this case are appropriate.

26.As pointed out in Lai Wai Cheong, immediate custodial sentences are to be imposed in respect of this type of offences unless there are very special circumstances.  This is the principle and, as is clear from the Magistrate’s Reasons for Sentence, this was what guided the Magistrate in passing the terms as he did in this case.

THE SENTENCES

27.In short, having considered the facts of this case and given the guidelines laid down in Lai Wai Cheong, I do not agree that the 3-month starting point adopted by the Magistrate is either wrong in principle, or manifestly excessive.

28.In the circumstances, I dismiss all three Appellants’ appeals against sentence.  The 2-month term imposed in respect of each of them is affirmed.

Mr Beney Wong, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Gerard McCoy SC leading Mr Daniel Hui, instructed by Messrs Lam Pui King & Co, for the Appellants (26 March 2013)

Mr Daniel Hui, instructed by Messrs Lam Pui King & Co, for the Appellants (15 April 2013)