THE QUEEN v. CHIANG YU-TUI

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 29 January 1996 the applicant was convicted by Her Honour Judge Wong of one offence of conspiracy to defraud the Registration and Electoral Office by dishonesty causing people to register as electors using false addresses (count 1 ) and offences of inviting another person to vote at an election knowing that he was not entitled to vote (counts 3 and 4).

2. The applicant was later sentenced to 3 months imprisonment suspended for 2 years for conspiracy and fined a total of $10,000 for the other two offences.

The facts

3. The applicant was a candidate for a District Bard election in the Kam Ping. Constituency held on 18 September 1994. He was elected having received about 1800 votes whereas his opponent received 800 votes. The Constituency has a substantial number of Fukienese residents. The applicant was the only Fukienese candidate and was a member of the Fukienese Association. Hung Yau-on (an accomplice) was a salaried executive of the Association. he was also a member of another Fukiencese clansman's association and he agreed to help the applicant in the election, by persuading Fudkienese to register as electors. The applicant told Hung to get people not living in the Constituency - and therefore not entitled - to register also. In pursuance of the plan, Hung registered his wife, other relatives and clansmen using the clansman's association address and the address of one of he applicant's former students as their principal places of residences so as to qualify. Hung filled in the forms. Indeed, Hung filled in about 200 forms which passed between the applicant and Hung for completion.

4. In count 3, Sze Hing-kwok's name was given by the applicant to Hung. Sze was a former schoolmate of the applicant in Mainland China. The applicant called Sze to ask him to vote although he did not live in the Constituency not at the address shown in the form. Sze never filled in the form and never authorised anyone else to fill in the form or register his name as an elector. The address used was that of a former student of the applicant.

5. Similarly in count 4, Keung Pan-pan was also a former schoolmate of the applicant. She came to Hong Kong 10 years ago. She did not live in the Constituency. She was not entitled to vote although her form gave an address within the Constituency. She was phoned the day before the election and her evidence was "Somebody rang me up and asked me to cast a ballot for him on the polling day and that person claimed to be Ching Yu-tui". She had not authorised the filling-in of her election form. Although she was Fukienese and had known the applicant for many years, she was not able to recognise the voice of the person claiming to be Chiang Yu-tui who rang up and asked her to cast a vote for him.

The Application

6. The applicant submits through his counsel, Mr McCoy, that the conviction of conspiracy under count 1 is unsafe. In summary, he contends that the case depended upon the evidence of the accomplice Hung and the judge misdirected herself in law upon her approach to this evidence by making reference to cases which were irrelevant. Secondly, that she failed to maintain the minimum standards required of a district judge when assessing evidence of this nature.

7. Whereas the exact assistance the judge gleaned from the cases she cited is unclear, she undoubtedly approached the evidence with care and reminded herself specifically that the accomplice may have had his own ends to serve. She then turned to consider the evidence which she accepted. Examining the whole of her reasons, there is no basis upon which this Court can find that the conviction in count 1 is unsafe.

8. In both counts 3and 4, Mr McCoy suggested that the judge was considering s. 14(1)(aa)of the Corrupt and Illegal Practices Ordinance, Cap. 288, rather than s.14(1)(a) under which the charges were laid. This arises out of a reference to sub-section (aa) in the reasons. It was slip and there is no merit in this submission. A reading of her reasons shows that she addressed the correct issues under sub-section 1(a).

9. We turn to the 4th count. Mr McCoy submits that the evidence was insufficient upon this count and the judge was wrong to convict. The focus was upon the inability of Keung to recognise the voice of the person who asked her over the phone to vote for him and who claimed to be the applicant.

10. In the absence of recognition of the voice, was it open to the judge to convict upon all the evidence? The answer lies in a fair examination of the whole of the evidence including that on count 1 given by the accomplice Hung. On this it was open to the judge to conclude beyond reasonable doubt that the person who identified himself as the applicant was the applicant. The inference was the only reasonable inference to be drawn. The application on count 4 is refused.

11. There remains the applicant's submissions on count 3. This focused upon whether the count is duplicitous in form. The particulars of offence read:

"CHIANG Yu-tui, on divers days between the 1st day of August 1994 and the 18th day of September 1994 invit4ed SZE Hing-kwok o vote at the Eastem District Board Election 1994, Kam Ping Constituency, Knowing that the said SZE Hing-kwok was not entitled to vote."

Mr McCoy submits that the use of the words "on divers days between" involved alleging more than one offence. Indeed, it is well settled that this form is usually duplicitous because it does allege more than one offence unless the offence is genuinely a continuing one. Mr Zervos, for the Crown, submits that this is a continuing offence as it was one invitation to vote repeated on several occasions. Whereas this is not an argument which can be rejected out of hand, the better view is that the count is duplicitous. Once an invitation is given the offence is complete. A further invitation involves another offence and could be the subject of a separate charge. We rule therefore - contrary to the judge - that the count is duplicitous. Unless the offence is clearly continuous, the appropriate way to draft the count where an offence may have been committed several times is to allege that it took place 'on a date between ... ". The evidence of repeated offences within the period is almost always admissible to prove the offence charged.

12. In these circumstances ought the count to be quashed and the conviction set aside? Usually a duplicitous count puts the accused as well as the fact-finding tribunal in such difficulty that any conviction upon it must be quashed. however, in the circumstances of this case prejudice to the applicant has not been and cannot be identified. Indeed, it is clear that there was no miscarriage of justice. The conviction is not only safe but, on the view of the evidence formed by the judge, inevitable.

13. For these reasons, it is appropriate to give leave to appeal on count 3 and to treat the hearing of the application as the appeal. Although we find the count duplicitous on the evidence the conviction was inevitable. We, therefore, apply the proviso under s. 83(1) of the Criminal Procedure Ordinance, Cap. 221, uphold the conviction and dismiss the appeal. As to the application of the proviso in these circumstances, see R v Thompson, 9 CriAppR 252 and R v Robertson, 25 CriAppR 208.

14. For these reasons the application for leave to appeal against convictions on counts 1 and 4 are refused. The appeal on count 3 is dismissed.