HKSAR v. CHENG WING KIN AND OTHERS

[English Translation – 英譯本]

CACC 339/2016

[2018] HKCA 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 339 OF 2016

(ON APPEAL FROM DCCC NO 1084 OF 2015)

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JUDGMENT

Hon Yeung VP:

Introduction

1.  The 2015 Hong Kong District Council Election (“2015 Election”) was held on 22 November 2015, with the nomination period running from 2 October 2015 to 15 October 2015. Pursuant to the relevant election regulations, the election expenses of each candidate was subject to a maximum of $63,100.

2.  The 2^nd Defendant Ku Ka-ho (“Ku”) is the founder of “All People Spontaneous” (“APS”), one of the localist political organizations. The 3^rd Defendant Chan Kin-loong (“Chan”) and an immunized prosecution witness Cheung Sin-kin (“Cheung”) were both members of APS.

3.  On 20 August 2015, an Internet rumour had it that the 1^st Defendant Cheng Wing-kin (“Cheng”) would subsidize members of localist political organizations in taking part in the 2015 Election, with the objective of “snatching votes”, i.e. causing those candidates not of their preference to lose the election.

4.  The prosecution alleged that Cheng had approached various localist community organizations prior to the 2015 Election, indicating his willingness to subsidize them in sending candidates to stand in certain constituencies specified by him (including the Lee On, Tai Shui Hang and On Tai constituencies in Shatin). The various persons whom Cheng approached turned down his offer. However, Ku and Chan accepted HK$150,000 to HK$200,000 offered by Cheng by way of subsidy, as an inducement for Ku to procure Chan to stand as a candidate in a specified constituency at the 2015 Election.  

5.  As a result of the above incident, Cheng was charged with a total of 13 offences contrary to the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 of the Laws of Hong Kong (“the Ordinance”). Charges 1 and 2 respectively alleged that Cheng induced Wong Hok-lai to stand as a candidate and induced Wong Hok-lai to get another person to stand as a candidate. Charge 4 alleged that Cheng induced Tsang Ka-lam to get another person to stand as a candidate. Charges 6 and 7 respectively alleged that Cheng induced Wong Chun-yeung to stand as a candidate and induced Wong Chun-yeung to get another person to stand as a candidate. Charge 9 alleged that Cheng induced Leung Chung-hang Sixtus to get another person to stand as a candidate. Charge 11 alleged that Cheng induced Lee Man-ho Leos to stand as a candidate. Charge 12 alleged that Cheng induced Wan Hiu-yee (“Wan”), his ex-girlfriend, to get another person to stand as a candidate. Charges 3, 5, 8 and 10, being the respective alternative charges for Charges 2, 4, 7 and 9, respectively alleged that Cheng induced community organizations such as “Shatin Community Network”, “Shatin New Alliance of the Pragmatic”, “Tung Chung Future” and “Youngspiration” to send people to stand as candidates in the constituencies specified by Cheng. Charge 13 alleged that the three defendants conspired to corruptly engage in illegal conduct at an election, namely, Ku accepted an advantage, offered by Cheng, of HK$150,000 to 200,000 as an inducement for Ku to procure Chan to stand as a candidate at the 2015 Election in a constituency specified by Cheng.

6.  None of the defendants pleaded guilty to any of the charges, and they were tried before District Judge Pang (“trial judge”).

7.  On 24 October 2016, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11 and 13. The trial judge took the view that the alternative charges (i.e. Charges 3, 5, 8 and 10) were unnecessary, and also acquitted Cheng on Charges 7, 8 and 12 for the reason that the circumstances in which Cheng offered the advantages in relation to those charges were unclear. The trial judge also convicted Ku and Chan on Charge 13.

8.  The amounts involved in Charges 1, 2, 6, 9, 11, and 13 were, respectively, $200,000, $200,000, $150,000, $150,000, $150,000, and $150,000 to $200,000. The amount involved in Charge 4 was not specified.

9.  On 26 October 2016, the trial judge imposed on Cheng concurrent sentences of 18 months’ imprisonment for each of Charges 1, 2, 4, 6, 9 and 11, and a consecutive sentence of 2½ years’ imprisonment for Charge 13. The total term of imprisonment for Cheng was 4 years. 

10.  In respect of Charge 13, the trial judge sentenced Ku and Chan to imprisonment for 2½ years and 2 years and 4 months respectively.

11.  Each of the three defendants now applies for leave to appeal against conviction and/or sentence.

The prosecution case and evidence

12.  It was the prosecution case that Cheng, purportedly acting upon the instruction of a “Chief Li”, offered advantages to induce localist political organizations to send candidates to designated constituencies at the 2015 Election, for the purpose not of winning but of preventing some other candidates from winning by diluting their voter base by means of “vote snatching”. Cheng said to those in charge of localist political organizations that anyone who agreed to stand as a candidate in accordance with his instructions had to submit an election report and run in a designated constituency. He stated clearly that, whether the person who agreed to stand as a candidate won the election or not, as long as he/she obtained about 200 votes, he/she would receive a subsidy between $150,000 and $200,000 in cash, and he/she would be free to decide how to use the subsidy.

13.  Yuen Fong of “Youngspiration” made an audio recording of his meeting with Cheng. According to the recording, Cheng claimed to be representing a consortium which was capable of providing election funding of $150,000, on condition that “Youngspiration” would send a candidate to the constituency he designated. The fund would be paid in cash by three instalments: the first instalment, 25%, would be paid upon submission of an election proposal by the candidate; the second instalment, 50%, would be paid upon successful signing up; and the third instalment, 25%, would be paid after the conclusion of the election. Lee Man-ho Leos, founder of another localist organization “Cheung Sha Wan Community Establishment Power”, further alleged that when he asked Cheng over the phone what designated constituencies there were to choose from, Cheng “changed his voice” before naming ten-odd constituencies.

14.  The prosecution alleged that APS was one of the localist organizations that Cheng induced, that members of APS including Ku, Chan and Cheung agreed to take Cheng’s subsidy of $150,000, and that Ku arranged for Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. According to the agreement among the parties, the $150,000 subsidy offered by Cheng would be paid by three instalments, with the first instalment, being 25% of the total sum, to be paid after the submission of an election proposal. Eventually, after Chan handed an election proposal to Ku, Cheng handed $36,000 to Ku during a dinner on 9 August 2015 which the four conspirators attended.

15.  The prosecution witnesses against Cheng included: Wan; Wong Hok-lai, representative of “Shatin Community Network”; Tsang Ka-lam, representative of “Shatin New Alliance of the Pragmatic”; Wong Chun-yeung, Chairman of “Tung Chung Future”; Leung Chung-hang Sixtus and Yuen Fong, representatives of “Youngspiration”; Lee Man-ho Leos, founder of “Cheung Sha Wan Community Establishment Power”; and Cheung.

16.  All the above prosecution witnesses clearly stated in testimony that they met Cheng on various dates. During their meetings, Cheng said that he represented a consortium seeking to subsidize the said localist political organizations in sending candidates to the geographical constituencies he designated for the election, and an organization which agreed to do so could receive a subsidy in cash ranging from $150,000 to $200,000. Cheng made it clear to the witnesses that those who agreed to run as candidates would receive subsidies as long as they obtained about 200 votes, whether or not they won the election, and that he would not ask how the money would be spent because his sole objective was to “eliminate the targets” and “dilute the voter base”. In her testimony, Wan even said she, as Cheng’s girlfriend, had accompanied Cheng to many meetings with people from the aforesaid localist organizations. Wan said that she herself used to participate in a localist organization, and that Cheng had also asked her to find some localists to stand as candidates at the election and mentioned that she would be rewarded with a five-digit sum. According to the testimonies of the above witnesses, when Cheng was offering the election subsidies, he had no clue at all who would accept his offer and stand as candidates at the 2015 Election.

17.  Wan said she went to a restaurant in Mong Kok with Cheng on 12 July 2015 to meet APS members including Ku and Cheung. At that meeting, Cheng mentioned to Ku the subsidy plan and said Ku could decide for himself how to use the subsidy.

18.  Wan stated that she accompanied Cheng to a second meeting with APS members on 19 July 2015. Ten-odd APS members attended the meeting, including Ku, Chan and Cheung. Cheng reiterated that sponsorship would be given to APS for sending someone to stand as a candidate at the election.  Cheng stressed that APS would not have to change its political stance, and that he would make the sponsorship payment by three instalments as long as there was an APS member who stood in a geographical constituency designated by him and obtained around 200 votes, whether or not that person won the election, but APS would first have to submit a candidacy report. At the time, Chan said he would stand as a candidate and gave an introduction about his own background.

19.  After the matter of election subsidies came to light, Wan accompanied Cheng to Macau on 25 August 2015 for a meeting in a hotel with the person whom Cheng referred to as Chief Li. During that time, Cheng even used Wan’s mobile phone for communication purposes as he feared that the media would find out he had been in contact with Ku and Chief Li.

20.  The prosecution evidence also included facts which had been admitted by both parties, including:

(i)     that Ku’s mobile phone contained a record of the messages sent between Cheng and Ku from 13 August 2015 to 15 August 2015 [Exhibit P25], a record of the messages that Ku sent to Cheung on 15 July 2015 [Exhibit P26], and a record of the messages sent between Ku and Chan from 16 July 2015 to 12 August 2015 [Exhibit P27];

(ii)     that Chan’s mobile phone contained a record of the messages that Ku had sent to Chan on 17 August 2015 [Exhibit P28] and a record of the messages sent between Chan and Cheung from 26 July 2015 to 30 August 2015 [Exhibit P29];

(iii)     that Cheung’s mobile phone contained 52 screenshots of dialogue messages [Exhibit P46]; and

(iv)      that, of the 15 photographs [Exhibit P47] stored in Ku’s mobile phone, some were identical with a number of documents in Exhibit P46.

The above exhibits were in line with the prosecution case and showed that there had been an agreement among the three applicants and a subsidy from Cheng had been accepted for sending someone to stand as a candidate at the 2015 Election.

21.  In his testimony, Cheung said that he was present at the meeting with Cheng on 19 July 2015. After Cheng left, the APS members went on with the meeting, during which Ku instructed Cheung to prepare a candidacy report on behalf of Chan because both Ku and Chan were less than proficient in the Chinese language.  Cheng had also mentioned the need to go after another candidate, Frederick Fung Kin-kee. Cheung claimed that he had urged Chan to submit the candidacy report and to step up efforts to maintain confidentiality, and that he had assisted Chan in compiling the candidacy report.

22.  Cheung went on to say that he met with the three defendants in an eatery in Tsuen Wan on the evening of 9 August 2015, during which Cheng indicated that although Chan’s candidacy report was not satisfactory, he would still pay $36,000 in order to show the strength of his consortium. He gave cash of $36,000 to Ku, who signed a document to acknowledge receipt.  Cheng further asked the APS members not to receive advantages from both sides, and suggested that Chan run an election campaign programme at the online radio station hosted by Cheng.  Cheung clearly stated that the messages on his mobile phone had been sent by those in the APS election campaign group. The group members included Ku and Chan, while the anthony cheng small letter A mentioned in the messages referred to Cheng.

23.  On 20 August 2015, the above incident of subsidized candidacy came to light on the Internet, which in the end led to the arrest and prosecution of the defendants.

Defence case and evidence

24.  The defence did not take much issue with the basic factual evidence adduced by the prosecution. Cheng agreed that he had approached a number of individuals from localist organizations and proposed subsidizing their members to stand as candidates at the 2015 Election. His case was that his true intention was not to subsidize others to stand as candidates, but rather to get into contact with persons from localist organizations to get wind of their improper relationship with the pro-democratic political parties, the reason being that he had noticed from online information that localist organizations and pro-democratic organizations might have some improper plans for the election.

25.  Cheng stressed that as an online radio station host, he had always wanted to find material for his radio shows and to attract Chief Li to invest in his productions.

26.  Cheng agreed that he did have meetings with APS members on 12 July and 19 July 2015, during which he put forward his plan to subsidize APS member(s) to stand as candidate(s) at the election, but this, Cheng said, was merely an excuse for him to approach APS. Cheng also admitted that he had paid Ku $36,000, but this, Cheng said, was for the purpose not to subsidize APS member(s) to stand as candidate(s), but to maintain a connection with APS so that it would be easier for him to film Chan’s election campaign. Cheng agreed that he had prepared an acknowledgement of receipt for Ku to sign, and that the reason for his payment should have been stated thereon. However, he first claimed that the receipt had been lost, and subsequently admitted that the receipt had been intentionally destroyed in order to curb unnecessary misunderstandings. Cheng agreed that he had received an election plan from Ku, but he was adamant that the $36,000 paid by him had nothing to do with subsidizing Chan to stand as a candidate at the election. His version was that the subsidized sum was for funding APS’s activities, with a collateral condition that Chan or APS members were required to assist him in filming the campaign process.

27.  Ku denied that the receipt of the $36,000 from Cheng was the consideration for subsidizing APS in sending someone to stand as a candidate at the election. He claimed that Cheng had indicated his intention to stand as a candidate at the District Council Election, but he would need assistance and protection by someone. Ku stated that the $36,000 in question was a reward to APS for helping Cheng run in the election and had nothing to do with Chan’s candidacy. Ku denied having arranged for Chan to stand as a candidate at the election. He also indicated that he had not instructed or arranged for Cheung to assist Chan in compiling any election report.

28.  Chan stated that his participation in the 2015 Election had nothing to do with Ku’s receipt of $36,000 from Cheng. Chan admitted he had attended the gathering for APS members on 19 July 2015. During the gathering, Cheng talked about offering a sponsorship of $150,000 to APS for the latter to send someone to stand as a candidate at the election. However, Chan asserted that his agreeing to stand as a candidate at the election had nothing to do with the sponsorship offered by Cheng, and that he did not even know that a condition was attached to Cheng’s payment of the sum to APS.

29.  Chan denied that Cheng had during the meeting talked about going after Frederick Fung. He also denied having had discussions with Cheng and Ku in secret in order to prevent others from gaining knowledge of what they discussed. Chan claimed that as he was unable to obtain assistance from APS, he did not stand for election. However, he agreed that Cheung had prepared a candidacy proposal for him.

30.  Apart from the above issues of fact, the defence’s stance was that none of the defendants had “corruptly” engaged in the conduct alleged by the prosecution as referred to in the charges.

The trial judge’s findings

31.  The trial judge first analyzed the parties’ disagreement as to fact. He pointed out that what Cheng said was not only confusing but wholly irrational. The trial judge said that, given Cheng’s financial situation at that time, he could not possibly have donated $36,000 to APS unconditionally for the purpose of maintaining contact with APS or filming Chan’s election campaign. The trial judge took the view that it was also not possible for Cheng to have all along kept his girlfriend Wan in the dark about the true intention of his subsidizing localists to stand as candidates at the election.

32.  The trial judge emphasized that, had Cheng wanted to gather evidence or information on political conspiracies among localist organizations and pro-democrats, he could not possibly have acted in the manner as alleged in the present case, nor would he have “changed his voice” before answering Lee Man-ho Leos, about the choice of constituencies.

33.  The trial judge rejected Cheng’s explanation that his true intention in offering to subsidize localist organizations was to inquire about the electoral conspiracies between them and the pro-democrats and that it had nothing to do with inducing others to stand as candidates at the election.

34.  The trial judge pointed out that at the meetings on 17 and 19 July 2015, Cheng never told Ku that he wanted APS members to help him stand as a candidate at the election. Nor did the messages among APS members mention that Cheng had asked APS members to help him stand as a candidate at the election and that he would pay a reward to APS. The trial judge pointed out that Ku himself had admitted he had never told Chan that Cheng had requested APS to provide support services to him. The trial judge stressed that Ku’s version in no way tallied with the documentary evidence, which showed that the first instalment of $36,000 paid by Cheng was related to Chan’s standing as a candidate at the election.

35.  The trial judge also pointed out that Ku was repeatedly evasive under cross-examination and that what he said was unconvincing. The trial judge did not find Ku to be a credible or reliable witness.

36.  The trial judge took the view that what Chan said, namely that his decision to stand as a candidate at the election was his own and had nothing to do with Ku’s influence, made no sense and did not tally with the evidence of Cheng and Cheung as well as the documentary evidence. The trial judge considered that Chan was not a veracious and reliable witness and that it would have been of no significance even if Chan had originally wished to stand as a candidate at the election.

37.  The trial judge found that the evidence of all the prosecution witnesses was rational and reasonable and was also supported by documentary evidence. On the contrary, the trial judge rejected the evidence of the three defendants, finding it evasive, ambiguous, unreasonable and illogical, and even contrary to the documentary evidence.

38.  The trial judge found that Ku and Chan agreed to have Chan stand as a candidate at the election by reason of Cheng’s monetary inducement. The trial judge pointed out that Cheng did not care whether the candidate(s) sent by APS would win the election. His sole concern was whether Chan would stand as a candidate in the constituency specified by him and obtain 200 votes. The trial judge emphasized that the amount Cheng agreed to pay went well beyond the statutory maximum for election expenses, and that Cheng had even clearly stated that the money would be paid in cash and could be spent freely. The trial judge took the view that Cheng’s funding was meant to be a monetary reward for Chan to stand as a candidate at the election, not an election donation. The trial judge further stated expressly that it was Cheng’s intention to use money to influence the results of the election, and that Ku and Chan must have known that Cheng was using money to buy their clout, but they still accepted Cheng’s reward and had Chan stand as a candidate at the election.

39.  The trial judge also made the following findings of fact:

(1)     Under the circumstances alleged in the charges, Cheng approached the relevant witnesses and offered them a subsidy of $150,000 to $200,000 as an inducement for them to stand as candidates in specified constituencies at the 2015 Election. The sums subsidized by Cheng would be paid in cash and the payees could freely decide how to use the sums; and

(2)     Cheng did put forward the subsidy plan to Ku, and Ku indicated that he would consider sending someone to stand as a candidate at the election. Ku also notified Chan, Cheung and other APS members on 15 and 17 July 2015 that a meeting would be held on 19 July 2015, and set out in the messages the conditions of subsidy proposed by Cheng. At the meeting on 19 July 2015, Cheng reiterated his subsidy proposal and expressly said that as long as a member of APS submitted a candidacy plan, stood as a candidate in the specified constituency at the election and obtained about 200 votes, APS could receive a cash subsidy of $150,000 to $200,000. At that time, Chan indicated that he would stand as a candidate at the election and immediately gave a description of his background. Afterwards, Ku, Chan and Cheung had a discussion and decided to accept Cheng’s proposal and to have Cheung help Chan prepare the candidacy report. Under the agreement among the parties, the $150,000 subsidy by Cheng would be paid by three instalments, the first instalment being 25% of the total amount. Cheung helped Chan prepare the candidacy report, which was then given to Cheng by Ku. Cheng claimed that the report was too simple and therefore, on 9 August 2015, he only paid $36,000 to Ku as the first instalment, instead of the originally agreed 25%, i.e. $37,500.

40.  The trial judge pointed out that the screenshots of dialogue messages shown in the 52 photographs (Exhibit P46) did not tally with what Ku said. The trial judge stressed that Exhibit P46 was contained in Cheung’s mobile phone, and 15 of those photographs (Exhibit P47) were stored in Ku’s notebook computer. The trial judge took the view that Exhibit 46, being real evidence, would not be hearsay evidence and would therefore be admissible if it was not used to prove the truth of the contents of the messages. Exhibit P47 was admissible as it was relevant to whether the three defendants and Cheung had reached an agreement. The undisputed record showed that it was only under cross-examination by the prosecution that Cheng admitted having sent Exhibit P46 to Ku, and by that time counsel for Ku had already finished cross-examining Cheng.

41.  Based on the prosecution evidence, the trial judge formed the view that the only reasonable inference was that there was an agreement among the three defendants and Cheung by which Cheng would offer a subsidy of $150,000 as consideration for APS sending Chan to stand as a candidate in a constituency specified by Cheng, while Cheung would be responsible for assisting Chan in preparing the election plan and other documentation for the election.

42.  As to what constituted conduct which was engaged in “corruptly” as alleged in the charges, the trial judge examined in great detail the relevant statute and decided cases. He pointed out that merely engaging in conduct prohibited by the statute did not necessarily constitute a criminal act, unless such conduct was engaged in “corruptly”. The trial judge further agreed that “corruptly” was an additional element of the offence which the prosecution bore the burden of proving. The trial judge found that the word “corruptly” did not carry any meaning of “wickedly”, “immorally”, “dishonestly” or other similar meanings, but required that the offender engaged in criminal conduct for the purpose of something plainly prohibited by the law. The trial judge found that the prosecution had to prove “dual intent” on the part of the defendant, i.e. not only did the defendant intend to induce another person, or be induced by another person, to stand or not to stand as a candidate at the election, but the defendant also intended to prevent the election from being conducted fairly, openly and honestly.

43.  The trial judge found that Cheng corruptly offered advantages to the persons specified in Charges 1, 2, 4, 6, 9 and 11 as an inducement for them to stand or get a third party to stand as a candidate at the 2015 Election, contrary to section 7(1)(a) or 7(1)(g) of the Ordinance.

44.  The trial judge also found that the three defendants conspired with Cheung for Ku to obtain an advantage from Cheng as an inducement for Ku to get Chan to stand as a candidate at the 2015 Election, contrary to section 7(1)(g) of the Ordinance and section 159A of the Crimes Ordinance, Cap. 200. At the same time, the trial judge found that the three defendants engaged in the above conduct corruptly. Based on the aforesaid findings, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11, and 13 and convicted Ku and Chan on Charge 13.

45.  The trial judge took the view that the alternative charges, i.e. Charges 3, 5, 8, and 10 were not necessary, and also acquitted Cheng of Charges 7, 8 and 12 for the reason that the circumstances under which Cheng offered the advantages alleged in those charges were not clear.

Grounds of appeal

46.  None of the three defendants took issue with the findings of fact made by the trial judge, but each of them appealed against conviction, putting forward a number of grounds in support.

47.  Cheng acted in person. In his homemade “Grounds of Appeal”, Cheng alleged that the trial judge erred in finding that he had “corruptly” engaged in the misconduct in question, i.e. offering advantages to others as inducements for them to stand or get third parties to stand as candidates at the 2015 Election. Cheng submitted that the trial judge failed to interpret the word “corruptly” in its broadest sense and also disregarded the interpretations of the same term in other common law jurisdictions.

48.  Cheng submitted that relying solely on the trial judge’s own interpretation of the term “corruptly” would render the scope of the relevant offences so wide as to encompass what was ordinary and reasonable election conduct, and this would go against the development of democratic elections. Cheng submitted that the trial judge should have accepted the proposition made by Mr. Douglas Kwok, counsel for Ku, namely that the court should have called a political scientist to give evidence as an “expert witness” and explain the correct meaning of the term “corruptly” in order to clarify what acts would contribute to the sustainable development of political parties and what acts would be “corrupt”.

49.  Cheng further pointed out that the approach taken by the trial judge, which included not allowing Mr. Kwok to cross-examine the witness in order to gauge how he understood certain political science and election issues so as to assist the court in properly interpreting the term “corruptly”, indicated that the trial judge was trying the case with a “biased” mindset.

50.  Cheng further pointed out that the interpretation by the trial judge of the term “corruptly” was in conflict with the Hong Kong Bill of Rights Ordinance (“Bill of Rights”) and the International Covenant on Civil and Political Rights, which conferred on Hong Kong residents the right to participate in elections freely and without restriction.   

51.  Cheng submitted that the provision of a monetary subsidy, as an inducement for another person to stand as a candidate at an election, was a monetary transfer necessary for the protection of the right of election and also part of the right to participate in elections freely and without restriction, and therefore should not constitute an offence.

52.  Cheng further stressed that the candidate whom the public had in mind needed sufficient money as an inducement to participate in an election so that he/she would have the motivation to step forward to speak for the public and be able to freely express their wishes. Cheng asserted that the Ordinance had an “innate defect”, being not completely in line with the principles stipulated in the Bill of Rights and the Basic Law.

53.  Cheng set out the background to the whole incident in another detailed skeleton submission. He asserted that those he sponsored were candidates within the meaning of the Ordinance, the reason being that they had openly stated that they were minded to stand as candidates at the election, and therefore the subsidies he agreed to give them were “election donations” which were permissible under the Ordinance. Cheng asserted that the respective prosecution witnesses could be regarded as “statutory candidates” prior to the offences in question, and therefore, even if he did subsidize them in standing as candidates at the election, his subsidies would not constitute inducements to their standing as candidates at the election.

54.  Citing cases such as Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489 and HKSAR v Lee York Fai, CAAR 3/2011, Cheng stressed that candidates’ public announcements within the meaning of the Ordinance did not have to follow a particular form or style.  He submitted that as long as a person had made preparations for the election by words or by conduct, that person was a candidate within the meaning of the Ordinance, and the subsidies offered to such candidates were election donations and not bribes.  Cheng asserted that those to whom he offered donations were either “paratrooper candidates” or “organization candidates”, and the prosecution witnesses had all deliberately planned to stand as candidates at the election. It followed, it was submitted, that the subsidies he offered were not inducements to their standing as candidates at the election and did not contravene section 7(1)(a) or 7(1)(g) of the Ordinance.

55.  In his submissions to this Court, Cheng stressed that even if his defence and/or testimony were not accepted at trial, the prosecution still bore the burden of proving his guilt beyond reasonable doubt. He pointed out that those whom he requested to stand as candidates at the election had long ago expressed the intention to do so, and hence the sums he offered were not inducements to their standing as candidates at the election and he did not violate section 7(1)(a), (1)(c) or (1)(g) of the Ordinance. Cheng asserted that the exhibits at trial, including reports by certain online media, had pointed out that a lot of localist organizations, such as those involved in the present case, indicated they would send people to stand as candidates at the 2015 Election, and there were reports showing that Wong Chun-yeung and Leung Chung-hang Sixtus would stand as candidates at the election. Cheng further pointed out that there were other reports of the same type showing that Wong Hok-lai, Tsang Ka-lam and Lee Man-ho Leos had also publicly stated that they would stand as candidates at the election. Therefore, it was submitted, the monies offered to them were not inducements to their standing as candidates at the election.

56.  With a view to strengthening his case, Cheng applied to the Court to adduce some fresh evidence, including reports by certain online media and the returns of election expenses of Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos. Cheng was of the view that those documents could support his case. He was able to produce the returns of election expenses of the aforesaid three individuals but could no longer produce reports by other online media in order to show that the prosecution witnesses had publicly announced their intention to stand as candidates at the 2015 Election.

57.  Cheng expressed doubts about the integrity of certain prosecution witnesses. He pointed out that those candidates were already “statutory candidates” at the time of the offences, and it was only that they did not stand as candidates at the election as expected after the material time, nor did they make returns of the election donations they had received. Cheng asserted that those prosecution witnesses were engaging in sophistry when they denied in their testimonies that they had publicly announced their standing as candidates at the election, the purpose of which was to prevent their election bribery from being revealed. Cheng also stated that the aforesaid returns of election expenses could support his case.

58.  In respect of Charge 13, Cheng stated that he had no idea which member of APS would stand for the election, and the $36,000 he paid was sponsorship to that organization. Cheng stressed that before the incident in question, Ku had spread the word around that they intended to stand as candidates at the election. Cheng’s position was that Chan was a candidate and Ku was an election expense agent. He himself was merely offering an election donation to a candidate through an agent.

59.  Cheng further stated that even if he had had bad motives, he had not committed a crime as a matter of law.

60.  Cheng stated that the prosecution had submitted to the court his statement of defence and claimed that such an act violated the legal professional privilege to which he was entitled and which should attach to communications between a lawyer and his client.

61.  Mr. Kwok, counsel for Ku, submitted that the trial judge had erred in admitting some hearsay evidence, namely Exhibits P27, P46 and P47.

62.  Mr. Kwok submitted that the trial judge should not have ruled, merely because a document more or less the same as Exhibit P27 was stored in Ku’s computer, that Ku had knowledge of the contents of Exhibit P27. Therefore, it was submitted, the trial judge erred in relying on Exhibit P27 to infer that Ku knew that Chan would stand as a candidate at the election and to hold that Ku caused Chan to stand as a candidate at the election and thereafter discussed with Cheng the matters concerning participation in the election, the reason being that the trial judge relied on some hearsay evidence in drawing the aforesaid inference.

63.  Mr. Kwok pointed out that it was only during cross-examination by the prosecution that Cheng stated it was he who sent Exhibit P46 to Ku, but by that time the defence had already finished cross-examining Cheng and therefore did not have an opportunity to cross-examine Cheng on that issue, and this was procedurally unfair to Ku.  In making his submissions to this Court, Mr. Kwok withdrew the above contention but insisted that Cheng’s version was neither part of nor verified in the prosecution case, and hence the trial judge’s reliance on Cheng’s version was also procedurally unfair to Ku.

64.  Mr. Kwok submitted that the trial judge interpreted the term “corruptly” without the assistance of the expert evidence of a political scientist, and such interpretation would limit the right of those concerned to stand as candidates at elections, such right having been conferred by the Basic Law and the Bill of Rights.

65.  Mr. Kwok also submitted that the trial judge’s finding on the meaning of “corruptly” was based on his erroneous view that “it is most obvious in the context of buying clout with money” and “vote snatching per se is not corrupt, but it is a different matter to achieve such a goal by using money. Otherwise, wealthy people could gain unfair advantages whereas the right of those without wealth to be voted for would be unfairly undermined.” Mr. Kwok submitted that the trial judge had overlooked the object of the Ordinance which was to require candidates to properly account for benefits and not to eradicate the acceptance of benefits. Mr. Kwok also submitted that the trial judge’s approach restricted the right of Hong Kong people to stand as candidates at elections, as conferred by the Basic Law and the Bill of Rights.

66.  Mr. Kwok contended that the candidate referred to in the Ordinance in respect of election donation could become a candidate only after receiving the donation, and therefore the financial assistance received by the candidate before he became a candidate could be an election donation, and as long as the person receiving the subsidy made a return for his election expenses properly, the relevant subsidy would be a lawful election donation. Mr. Kwok took the stance that both the $150,000 to $200,000 Cheng had promised to pay and the $36,000 he had actually paid could be regarded as election donations, and that as long as Chan made a return upon the conclusion of the election, the monetary transactions in question would be lawful. Mr. Kwok stressed that when Ku was arrested, the time limit for making a return for the election expenses had not yet expired. It was submitted that the trial judge wrongly speculated that Chan would definitely not make a return for the amount he accepted.

67.  Mr. Kwok submitted that, in finding that the $36,000 Cheng had paid was a reward for Chan’s standing as a candidate at the election and not a donation for election expenses, the trial judge was less than clear about the allegation of “inducement” in the charge. Mr. Kwok submitted that the prosecution case did not support the proposition that the $36,000 paid by Cheng was an “inducement” for Chan to stand as a candidate at the election.

68.  Mr. Edwin Choy, representing Chan, did not adopt the position or any of the grounds of appeal put forward by Mr. Kwok, but instead raised two other grounds of appeal. He argued that the trial judge had not properly dealt with or had wrongly dealt with the legal definition of the term “corruptly” under the Ordinance.

69.  Mr. Choy pointed out that section 7(1)(g) of the Ordinance provided that it was an offence only for a person to corruptly solicit or accept an advantage as an inducement to get, or try to get, another person to stand or not to stand as a candidate at an election, and therefore, “corruptly” must be an element of the charge bearing a substantive meaning, and the prosecution had to prove that the element was established before the defendant could be convicted.

70.  Mr. Choy submitted that the approach to the interpretation of the term “corruptly” in the cases cited by the prosecution at trial, including Copper v Slade (1858) 6 HLC 746, Bewdley Election Petition (1869) 19 LT 676, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999), did not apply in the present case.

71.  Mr. Choy submitted that, in order to establish a corrupt conduct within the meaning of the Ordinance, the prosecution had to prove that there existed, by an objective standard, a corrupt element in the defendant’s conduct and that the defendant had, by a subjective standard, guilty knowledge/corrupt intent. Mr. Choy submitted that “corruptly” should refer to conduct of cheating, deceiving, immorality or dishonesty.

72.  In support of his stance, Mr. Choy cited cases in Singaporean law courts such as PP v Khoo Yong Hak [1995] 2 SLR 283, PP v Chan Wing Seng [1997] 2 SLR 426 and PP v Low Tiong Choon [1998] 2 SLR 878.

73.  Mr. Choy contended that in order to establish the offence, the prosecution did not only have to prove that the defendant had performed certain corrupt conduct, but also had to prove that in performing such corrupt conduct, the defendant was aware that his own conduct was corrupt conduct by an ordinary and reasonable standard.

74.  Mr. Choy pointed out that in Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (Common), the court emphasized, in addressing the relevant issues, that the prosecution had to prove beyond reasonable doubt that the defendant was aware that the relevant criminal conduct was wrong:

“The treating must be done corruptly, in the sense that it is done intentionally, knowing that what was being done was wrong and with the object of inducing votes ...”

75.  Mr. Choy submitted that the trial judge erred in agreeing with the prosecution that “corruptly” actually meant that the offender did the offending act “for the purpose of something plainly prohibited by the legislation”, and that such error was caused by the failure of the trial judge to deal with the relevant cases properly.

76.  Mr. Choy contended that the trial judge erred in finding that it was immaterial whether Chan was minded to stand as a candidate. Mr. Choy submitted that such desire on Chan’s part was material and favourable to him, and therefore the trial judge should not have regarded it as immaterial.

77.  Mr. Choy submitted that the trial judge misunderstood the evidence and erred in rejecting Chan’s explanation, and that, in making the aforesaid erroneous decision, the trial judge failed to properly deal with the evidence favourable to Chan and the evidence adverse to the prosecution. Mr. Choy stressed that Chan was well-off and unlikely to have committed the offence in question.

78.  Therefore, Mr. Choy submitted that the conviction of Chan was unsafe.

79.  Although Mr. Choy listed a number of decided cases in his written submission to support his position, he only extracted a few paragraphs from the judgments of those cases without analyzing the background of and the issues involved in those cases. Nor did Mr. Choy make any further reply after Mr. Jonathan Man, Senior Assistant Director of Public Prosecutions for the respondent, addressed why those cases were not applicable to the present case.

Discussion

80.  One of the duties of a judge is to interpret statutes by reference to a number of factors such as the language of the statutes, the legislative intent and purpose, and precedents of similar cases, etc.  Cheng and Mr. Kwok submitted that the trial judge should have enlisted expert assistance in interpreting the legislation, but this suggestion is wholly unfounded and plainly wrong. In my view, the suggestion made by Cheng and Mr. Kwok is simply inconceivable. Mr. Kwok is under a duty to put forward arguable points in order to assist the court in handling the case, instead of creating obscurity by making absurd propositions not supported by any decided case. Mr. Kwok should not have even put forward the suggestion that the trial judge should have received evidence of an expert witness in order to assist him in properly interpreting the legislation. 

81.  Article 26 of the Basic Law and the Bill of Rights confer on Hong Kong permanent residents the right to vote and the right to stand for elections. However, these rights have to be exercised in accordance with law and subject to such restrictions as are prescribed by law.

82.  To ensure that elections are conducted fairly, openly and honestly, the Ordinance prohibits certain corrupt and illegal conduct which affects fair, open and honest elections. The Ordinance aims not only to ensure that candidates properly account for the election donations that they receive, but also to eradicate certain corrupt conduct, including offering an advantage to another person as an inducement for that other person to stand, or not to stand, as a candidate at an election. Another object of the Ordinance is to prevent anyone from obtaining personal gains by standing for elections.

83.  To “offer an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election” is corrupt conduct prohibited by law as detailed in the Ordinance (section 7(1)(a)(i)).

84.  The aforesaid restriction is prescribed by law and is reasonable and proportional. Exercising the right to vote or the right to stand for election by violating the aforesaid restriction is not exercising the right under the Basic Law and the Bill of Rights in accordance with law. A person with limited resources may have other ways to raise funds to enable him/her to stand for an election. It is not correct to say, as Mr. Kwok did, that the inability of a person minded to stand for an election to do so by reason of limited resources will affect his/her right to stand for elections or voters’ right to vote.

85.  There must be a proper basis and various tests must be satisfied in order to suggest that a particular legal provision is unconstitutional. There is nothing to support the contention of Cheng and Mr. Kwok that the Ordinance and the ruling of the trial judge contravene the Basic Law and the Bill of Rights.

86.  On a proper interpretation of the Ordinance, the provisions in the Ordinance that certain conduct related to elections constitutes illegal and corrupt conduct do not in any way contravene the Basic Law and the Bill of Rights.

87.  Exhibits P27, P46 and P47 are records of communications among members of the APS election campaign group, including Ku, Chan and Cheung. The evidence confirmed that some of the communications originated from Cheng. The contents of the communications also tallied with the prosecution’s allegation, showing that Cheng would provide sizeable subsidies to induce APS to send people to stand as candidates at the 2015 Election. Those messages were obviously compiled and sent by the conspirators involved in the present case. 

88.  According to the co-conspirator rule, acts done or statements made by a co-conspirator for the purposes of the conspiracy are admissible against the other co-conspirators and are not subject to the rule against hearsay, the reason being that, for an offence of conspiracy, a co-conspirator’s acts or statements are binding on the other co-conspirators (see R v Au Shui Yuen Alick [1993] 2 HKC 219). Furthermore, documents shown to be records stored in a particular kind of business are of probative value and are admissible in evidence without violating the rule against hearsay (see HKSAR v Or Suen Hong [2001] 2 HKLRD 669).

89.  The fact that a document more or less similar to Exhibit P27 was stored in Ku’s own computer can definitely show that he had knowledge of the contents of Exhibit P27.

90.  The aforesaid evidence is clearly admissible. By treating Exhibits P27, P46 and P47 as merely real evidence which could only be used to support the testimony that Ku accepted Cheng’s subsidy, the trial judge adopted an approach extremely favourable to Ku. In any event, even in the absence of such evidence, according to the trial judge’s findings on the evidence of the prosecution witnesses, the three defendants clearly had an agreement to accept Cheng’s subsidy so that Ku would get Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. The evidence given by the prosecution witnesses against the three defendants was all-encompassing and overwhelming. Mr. Kwok’s contention that certain hearsay evidence should not have been adduced does not affect the safety of the conviction.

91.  In his oral submissions, Mr. Kwok withdrew the complaint he made in his written submissions that it was only under cross-examination that Cheng said he sent Exhibit P46 to Ku. Had the defence considered that they could not foresee what Cheng was going to say and hence had no opportunity to put questions to him before he was cross-examined by the prosecution, they could have applied to the trial judge for leave to inquire of Cheng about the new issue after the prosecution finished cross-examining Cheng.

92.  Not having made such an application at trial, it is not open to the defence on appeal to complain, or indeed to put forward as a ground of appeal, that they did not have an opportunity to make inquiries of Cheng and hence Ku suffered from procedural unfairness.

93.  Mr. Kwok argued that Cheng’s evidence was neither part of the prosecution case nor verified when the prosecution proved their case, and therefore the trial judge could not rely on Cheng’s testimony against Ku. If, at the close of the prosecution case, the evidence adduced by the prosecution fell short of establishing a prima facie case on the charges, it was of course open to the defence to make an application for no case to answer. However, where the prosecution had adduced sufficient prima facie evidence for the charges, the evidence given by one defendant who defended in person could, if true, strengthen the prosecution evidence against other defendants who stood the same trial. 

94.  The grounds of appeal raised by Mr. Kwok regarding the above issue do not have any backing and are plainly wrong. Such grounds should not have been raised at all. What Mr. Kwok did is a sheer waste of the court’s time.

95.  The prosecution case was that the three defendants engaged or conspired to engage in “corrupt conduct” prohibited under the Ordinance, namely offered an advantage to another person as an inducement for the other person to stand as a candidate at the election, or conspired to offer an advantage to another person as an inducement for the other person to stand as a candidate at the election.

96.  Mr. Kwok argued that the election donation referred to in the Ordinance could be made before there was a candidate, and as long as the person who received the election subsidy made a proper election expense return after the election, the offering of an advantage as an inducement for another person to stand as a candidate at an election could be regarded as an election donation which was lawful. I disagree. An election  donation is a donation made to a candidate at an election. The existence of a candidate is a prerequisite for an election donation.

97.  In any event, according to the trial judge’s findings of fact, the $150,000 to $200,000 Cheng had agreed to pay and the $36,000 already paid to Ku were by no means election donations but were monetary rewards given to Ku as inducements for Chan to stand as a candidate at the 2015 Election. The trial judge’s finding is backed by sufficient evidence and is correct.

98.  The Ordinance is targeted at certain acts which are done “corruptly”. The trial judge considered that merely doing an act prohibited by the legislation did not necessarily constitute corrupt conduct. However, if the offender did the relevant acts with the object of doing acts prohibited by the legislation, then those acts were done “corruptly” and were unlawful.

99.  The interpretation given by the trial judge is tantamount to saying that “if an offender intentionally did the acts prohibited by the Ordinance, then he did such acts ‘corruptly’ which was unlawful.”

100.  The trial judge and counsel for the defendants cited various decided cases, both local and overseas, in support of their respective interpretations of the word “corruptly”. In my view, in interpreting the same word which appears in different statutes, apart from referring to the literal meaning of the word itself, it is also necessary to consider the objectives which the individual statute is seeking to achieve and the possible effect(s) of the interpretation on the word.

101.  I also consider that the various cases cited by Mr. Choy, especially the judgments of the law courts in Singapore, were decided under the special circumstances of the respective ordinances, but are not applicable to the present case.

102.  Section 3 of the Ordinance states that the objects of the Ordinance are to make sure that elections are conducted fairly, openly and honestly and are free from corrupt or illegal conduct, and “to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure”.

103.  Section 7 of the Ordinance prohibits certain types of conduct which are characterized as “corrupt conduct”, and it is an offence to engage in such “corrupt conduct” (section 6(1)). Such unlawful conduct refers, in general, to offering or accepting an “advantage” as an “inducement” to stand, or not to stand, as a candidate at the election, or to withdraw the candidature, or not to endeavour to promote the election of the candidate.

104.  It is an inherent offence, as prescribed by the Ordinance, for a person to offer or accept an “advantage” as an “inducement” to get someone to stand, or not to stand, as a candidate at an election, or to withdraw his/her candidature, or not to endeavour to promote the election of the candidate. Section 2(1) of the Ordinance defines “advantage” to include any valuable consideration, gift, loan, service, etc., but election donation is not included. Section 19 makes specific provisions on the disposal of “election donations” by candidates.

105.  The legislative intent of the Ordinance is clear: a candidate is entitled to accept election donations, but such donations can only be used towards election expenses as prescribed in the Ordinance. Where election donations exceed election expenses, the former must be disposed of in accordance with the mechanism set out in section 19 of the Ordinance. In short, a candidate must not have any gains by reason of standing for an election. Section 7(1) of the Ordinance also aims to prohibit candidates from having any personal gains as a result of standing for an election.

106.  The Ordinance is expressed to prohibit the act of “offer[ing] an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election”, such conduct being characterized as “corrupt conduct”.

107.  If a person engaged otherwise than intentionally in the conduct sought to be prohibited by the Ordinance, he/she may of course not have engaged in such conduct “corruptly” within the meaning of the Ordinance.

108.  However, where a person intentionally engaged in the conduct prohibited and characterized as “corrupt conduct” by the Ordinance, and such conduct was engaged in for the purpose of obtaining personal gains by standing as a candidate at an election, then such conduct must have been engaged in corruptly.

109.  If the court does not adopt the aforesaid interpretation, it will be impossible to enforce the Ordinance effectively, and, worse still, corruption will arise and be encouraged in elections.

110.  The trial judge held that a defendant should be acquitted if he might not have intentionally engaged in the conduct prohibited by the Ordinance. The trial judge held that to constitute an offence, a defendant had to have the “corrupt intent”, i.e. he/she committed the offence for the purpose of achieving something which was clearly prohibited by the legislation. The interpretation by the trial judge means in effect that the conduct prohibited by the Ordinance has to be engaged in intentionally in order to constitute an offence.

111.  That the Ordinance characterizes the conduct it prohibits as “corrupt conduct” must also be because such “corrupt conduct” goes against the objects of the Ordinance and is in conflict with the fair, open and honest conduct of elections.

112.  For any person who intentionally engages in the corrupt conduct prohibited by the Ordinance, he/she must be doing so with the purpose/intent of hindering a fair, open and honest election. The “dual intent” referred to by the trial judge originates from the defendants’ engaging intentionally in the corrupt conduct prohibited by the Ordinance. The use of such terms as “corrupt intent” or “dual intent” does not add any extra ingredient to the relevant charges.

113.  The so-called objective “corrupt element” is the very “corrupt conduct” prohibited by the Ordinance, while the subjective guilty knowledge or corrupt intent is to intentionally engage in “corrupt conduct”. Any person who intentionally engages in “corrupt conduct” must have knowledge that his/her conduct is wrong.

114.  In interpreting the word “corruptly” as used in the Ordinance, the trial judge relied on cases such as Copper v Slade (1858) 6 HLC 746, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999). In my judgment, this approach is correct. In fact, the trial judge’s approach to interpretation was more than favourable to the three defendants.

115.  In my judgment, where a person intentionally engages in conduct prohibited under the “Ordinance”, i.e. conduct characterized by the Ordinance as “corrupt”, and one of the purposes of doing so is for personal gain of a particular individual or organization, then that person is “corruptly” engaging in such conduct, which constitutes an offence prohibited under the Ordinance.

116.  The charges involved in the present case are corruptly offering money to other persons to induce them to stand as candidates at the election. Prior to trial, no one claimed that the sums Cheng agreed to pay were election donations. In his testimony, Cheng expressly indicated that he was not subsidizing others to stand for the election but was aiming to approach those of the localist organizations and expose their conspiracies with pan-democratic organizations. At trial, Ku also stressed that the $36,000 he received was consideration for APS assisting Cheng in standing for the election and had nothing to do with Chan’s standing for the election. I find it difficult to understand how Cheng and Ku can, on appeal, try to clear themselves of the convictions by claiming that the sums Cheng agreed to offer were “election donations”.

117.  According to the Ordinance, an election donation is the money, goods and paid service provided to a candidate, and a candidate:

“(a) means a person who stands nominated as a candidate at an election; and

(b)     also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate …”

118.  On the prosecution evidence, when Cheng proposed to subsidize the localists and organizations involved in the present case, they had not stood nominated as candidates and had never publicly declared an intention to stand as candidates. I have to stress that a candidate is an individual but not an organization. The fact that a particular organization claimed it would send someone to stand for the election is neither here nor there. It is not open to Cheng to claim that the subsidy he proposed was election donation offered to a particular candidate on the ground that a particular organization claimed that it would send someone to stand for the election. Neither the relevant evidence Cheng pointed out nor the new evidence he wishes to put forward is sufficient to prove that any of the prosecution witnesses he was willing to subsidize had stood nominated as candidates or had publicly declared an intention to stand as candidates before the close of nominations. There is no basis to support Cheng’s claim that the subsidies offered by him were election donations. Even though some online media reported that Wong Chun-yeung had indicated he was actively considering standing for the election and such reports constituted a public declaration of an intention to stand for the election, he had not clearly stated that he would stand as a candidate in a particular constituency. Cheng’s act of inducing Wong Chun-yeung to stand as a candidate in the constituency designated by him was sufficient to constitute corrupt conduct within the meaning of the Ordinance.

119.  Furthermore, as the trial judge correctly pointed out, the amount of subsidy Cheng put forward far exceeded the maximum amount of election expenses for the 2015 Election, and Cheng had even made it clear that the subsidies given by him would be released in cash and that the recipients could spend the money freely. When Ku received the $36,000, neither he nor Chan issued any receipt as required by the statute － further proof that the subsidy from Cheng could not possibly be an election donation. The proposal Cheng put forward was to cause those who accepted his instructions and stand as candidates in designated constituencies to obtain personal gains, the purpose of which was to induce them to stand as candidates in the constituencies he designated in accordance with his instructions, so as to achieve his improper objective.

120.  The trial judge’s finding that the funds provided by Cheng were by no means election donations but were rewards for inducing others to stand for the election is, in my judgment, absolutely correct.

121.  Cheng fails to show that the new evidence he seeks to adduce is relevant to the present case, still less material to the outcome of the present case. Cheng is also unable to explain why such evidence had not been adduced at trial. Therefore, I have no basis to allow his application and admit the new evidence he seeks to adduce, and his summons for leave to adduce new evidence is dismissed accordingly. I am also of the view that the prosecution’s inadvertent disclosure at trial of certain instructions of Cheng which came from counsel for Cheng has no bearing at all on the safety of the conviction.

122.  Mr. Kwok submitted that the trial judge was confused in respect of the allegations of inducements in the charges. This submission is, in my judgment, wholly unfounded. I find that the trial judge was correct in holding that the money Cheng had agreed to pay and/or had paid was by no means an election donation but was a “bribe” to induce others to stand as candidates at the election. It was after Ku and Chan knew that Cheng would subsidize $150,000 to $200,000 that Chan indicated he would stand as a candidate in a designated constituency. Cheng’s promise of subsidy and the $36,000 he subsequently paid were precisely what induced Chan to stand as a candidate at the election.

123.  On the testimonies of the prosecution witnesses and the trial judge’s findings of fact, the purpose of Cheng’s funding was to induce others to stand as candidates at the election so as to obtain personal gains for themselves, and not to subsidize, by way of election donations, those candidates who had already decided to stand as candidates at the election. The trial judge held that the payment of $36,000 by Cheng to Ku was made for the purpose of inducing Chan to stand as a candidate at the election, not of funding Chan’s election expenses. There was sufficient evidence in support of the trial judge’s ruling. Contrary to what Mr. Kwok said, the trial judge had not been confused about the allegations of inducements as set out in the charges.

124.  Mr. Choy contended that Chan had all along intended to stand as a candidate at the election, and that his decision to stand for the election had nothing to do with the subsidy Cheng agreed to give him.

125.  One of the acts of corrupt conduct prohibited under the Ordinance is offering an advantage to another person as an inducement for that other person to stand as a candidate at an election, and that inducement does not have to be the sole inducement for that other person to stand as a candidate at the election. And Chan’s wealthiness also had nothing to do with the incident. The trial judge said the fact that Chan originally intended to stand as a candidate at the election was insignificant, but this does not mean he did not consider that factor. The trial judge was merely pointing out that, on the basis of his findings of fact, the fact that Chan originally intended to stand as a candidate at the election had no bearing on his culpability in the incident.

126.  According to the trial judge’s findings of fact, Cheng directly or indirectly approached individuals including Wong Hok-lai, Tsang Ka-lam, Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos, and indicated his willingness to subsidize them to stand as candidates or to procure others to stand as candidates at the 2015 Election, with a view to inducing them to stand as candidates or procure others to stand as candidates in the constituencies designated by him. Cheng also conspired with Ku, Chan and Cheung to provide money as an inducement for Ku to get Chan to stand as a candidate in the constituency designated by him, and one of the inducements for Chan to decide to stand as a candidate in a designated constituency was the $200,000 Cheng agreed to pay. I concur with the trial judge’s aforesaid findings of fact which were supported by sufficient evidence.  One of the conditions Cheng put forward was to cause the person who stood for the election in accordance with his instruction to obtain personal gains. The above conduct is plainly “corrupt conduct” which the Ordinance is meant to prohibit.

127.  Having carefully considered the aforesaid grounds of appeal raised by each of the defendants, I am of the view that none of those grounds is made out.

128.  I do not agree that the convictions of Cheng on Charges 1, 2, 4, 6, 9, 11 and 13 and the convictions of Ku and Chan on Charge 13 are unsafe in any respect. I dismiss their respective applications for leave to appeal and the convictions are upheld.

Sentence

129.  The trial judge cited the cases of Secretary for Justice v Lee York Fai and others, CAAR 3/2011 and Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362, and reiterated that bribery at elections was a very serious offence and the courts had to take a serious view of illegal conduct at elections such as corrupt practices in order to maintain the credibility of elections.

130.  The trial judge was of the view that the present case was an extremely serious instance of bribery at an election, and that the defendants had blatantly disregarded the spirit of the electoral system.

131.  The trial judge considered that Cheng was more culpable than the defendants in Lee York Fai because he did not simply wish to influence a single constituency but intended to interfere with 10-odd constituencies, and the money he could use as bribes was sizeable. However, in respect of Charge 13, the trial judge did not consider the roles and culpabilities of Cheng, Ku and Chan separately.

132.  Regarding Charges 1, 2, 4, 6, 9 and 11, as the bribery was unsuccessful, the trial judge adopted 18 months’ imprisonment as the starting point. For Charge 13, as the three defendants had formed an agreement and Cheng had even paid $36,000 as the first instalment, the trial judge adopted 2 years and 6 months as the starting point.

133.  The trial judge was of the view that the total term of imprisonment for Cheng should be 4 years, and so he ordered the 18 months for Charges 1, 2, 4, 6, 9 and 11 to run concurrently, but consecutively to the 2 years and 6 months for Charge 13, thereby arriving at a total sentence of 4 years.

134.  As for Ku, the trial judge considered that there were no mitigating factors, and therefore sentenced Ku to 2 years and 6 months’ imprisonment for Charge 13.

135.  As for Chan, given his good character, the trial judge exercised his discretion and reduced the sentence by 2 months, and sentenced Chan to 2 years and 4 months’ imprisonment.

Grounds of appeal

136.  In his written submissions, Mr. Kwok stated that in passing sentence the trial judge focused on the gravity of Cheng’s criminal conduct but failed to separately consider the role played by Ku. Mr. Kwok submitted that, even for conspiracy cases, the personal circumstances of various conspirators and their degree of participation were factors to be considered when passing sentence.

137.  Mr. Choy put forward the same ground, placing emphasis on the fact that Chan was only involved in Charge 13 and that charge only concerned one of the seats in one of the District Council constituencies. Mr. Choy also pointed out that the case involved only $150,000 to $200,000, and that Chan only agreed to obtain the inducement and stand for the election, with no evidence that he had actually received any advantage.

138.  Both Mr Kwok and Mr Choy submitted that Ku and Chan are far less culpable than the defendants in Lee York Fai, and hence the starting point of 2 years and 6 months is manifestly excessive.

Discussion

139.  Cheng was convicted on seven charges including Charge 13. His overall culpability is of course greater than that of Ku and Chan. However, in respect of Charge 13 alone, Cheng was offering an advantage and Ku and Chan were receiving the advantage in order to influence the election. I fail to see any difference in the culpabilities of the three of them as co-conspirators.

140.  The trial judge pointed out that Cheng was minded to influence not only one constituency but 10-odd constituencies, and the bribe money he could use was as much as $150,000 to $200,000 per candidate. What the trial judge said was only directed at the overall culpability of Cheng and had nothing to do with Ku and Chan.

141.  Regarding Charge 13, the trial judge pointed out that the present case involved extremely serious election corruption and that the three defendants blatantly disregarded the spirit of the electoral system. The trial judge had not imposed on Ku and Chan the other charges against Cheng and more serious culpability in relation thereto. It is not correct for Mr. Kwok to say that the trial judge had lumped together the culpabilities of Ku and Chan and of Cheng.

142.  I reiterate the following principles:

(1)     A clean election is essential for ensuring fair and just elections, is an important foundation for experiencing, practising and developing democracy, and is a prerequisite for maintaining the credibility of elections;

(2)     The courts must take a serious view of all corrupt and illegal conduct in elections; and

(3)     Any person who takes part in election corruption cannot expect a lenient sentence from the court, regardless of that person’s background and social status. The courts must deter the relevant conduct in order to ensure that elections are fair and just and that the credibility of elections is not thrown into doubt.

However, the trial judge’s view that the gravity of Charge 13 was comparable with the gravity of Lee York Fai is, in my view, open to question.

143.  In Lee York Fai, the defendants organized activities such as dinner banquets and day tours, with a view to inducing electors to vote for a particular candidate. The dinner banquets involved almost 600 tables and 6,000 to 7,000 participants; the number of people joining the day tours also approached 3,000. The two activities entailed expenses totalling more than $2,000,000, and the number of electors the defendants sought to induce exceeded half of the number of registered electors.

144.  Besides, the defendants were found to have engaged in various corrupt and illegal conduct contrary to the election [rules].

145.  Furthermore, Lee York Fai is regarded as the largest ever (in terms of scale) and the most serious of cases of its type.

146.  The main defendants in that case were each sentenced to a total of 33 months’ imprisonment. When passing the above sentence, the Court of Appeal took into account that the defendants had admitted most of the prosecution case at trial and that the sentence was passed upon application for review.

147.  Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362 is another case involving election corruption. There the defendant offered $130,000 in cash to one of 46 electors, inducing that elector to vote for him. The Court of Appeal took the view that the appropriate starting point was 18 months’ imprisonment. However, as it was an application for review of sentence, and taking into account other mitigating factors, the Court of Appeal imposed a sentence of 12 months’ imprisonment.

148.  In my view, regarding Charge 13, the three defendants were less culpable than the defendants in Lee York Fai. In my judgment, 2 years’ imprisonment adequately reflects the gravity of Charge 13.

149.  Although Cheng had committed seven offences in total, all of them were basically a series of offences of the same type. In my view,  the total term of imprisonment of 3 years and 3 months for all the charges against him should be adequate.

150.  Therefore, I grant leave to the three defendants to appeal against sentence and treat their applications as the appeal proper.

151.  I allow their appeal and substitute the sentences as follows:

(1)     For Charge 13, Cheng’s sentence is substituted by 24 months’ imprisonment, such sentence to run consecutively to 15 months out of the 18 months’ imprisonment for the remaining charges. Cheng’s total term of imprisonment is reduced from 4 years to 3 years and 3 months; and

(2)     The sentences of Ku and Chan are reduced, from 2 years and 6 months and 2 years and 4 months respectively, to 2 years.

152.  On 17 March 2016, Ku was sentenced to 6 months’ imprisonment in Kwun Tong Magistrates’ Courts for two counts of access to a computer with criminal intent (KTCC 4735/2015). After serving two months of the term, Ku was granted bail pending appeal. On 15 August 2017, Ku’s appeal was dismissed.

153.  When sentence was being passed for the present case on 26 October 2016, Ku was on bail pending appeal in KTCC 4735/2015, and so the trial judge did not deal with the sentence for KTCC 4735/2015.

154.  In the absence of objection by the prosecution, and for the sake of simplicity, I order that the remaining term to be served by Ku for KTCC 4735/2015 as of 26 October 2016 is to run concurrently with the 2-year term in the present case.

Hon Poon JA:

155.  I agree with the judgment of Yeung VP and the orders made in disposing of this appeal.

156.  The key issue in the present case concerns the correct interpretation of section 7(1)(a), (c) and (g) of the Elections (Corrupt and Illegal Conduct) Ordinance (“the Ordinance”).  However, there is no decided case of the Court of Appeal level or above relating to that issue. In view of this, I would like to add a few observations of my own on the issue.

A.     The Ordinance: objectives and scope of application

157.  When it comes to statutory interpretation, the court will adopt a purposive approach. Put simply, the court will ascertain the meaning of the legislation based on the actual language or wording of the ordinance. At the same time, rather than isolating the provision to be interpreted, the court will globally consider that provision together with other relevant provisions in light of the context and purpose of the entire ordinance. When considering the context and purpose of the ordinance, the court can refer to the official record of the proceedings of the Legislative Council (Hansard) concerning that ordinance.

158.  The objectives of the Ordinance are set out in section 3 thereof:

“The objects of this Ordinance are –

(a) to ensure that, as far as practicable, elections to elect the Chief Executive and persons to membership of the Legislative Council, District Councils and certain other public bodies and to be Rural Representatives are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct; and

(b) to regulate electoral advertising so as to ensure, as far as practicable, the fairness and honesty of electoral advertising; and

(c)      to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure.”

159.  The Ordinance applies to various kinds of elections including elections to elect the Chief Executive, the members of the Legislative Council, Election Committee, District Council and Heung Yee Kuk, the Chairman or Vice-Chairman or a member of the Executive Committee of a Rural Committee, and a Rural Representative for a rural area: section 4. The Ordinance applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere: section 5.

160.  In accordance with sections 3 to 5, the Ordinance covers all elections to relevant public offices and regulates all conduct relating to these elections, so as to ensure that, as far as practicable, all elections are

conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct[1].

B.     Corrupt conduct under section 7(1)

161.  Corrupt conduct includes unlawful conduct in the nature of bribery[2]. Relevant to the present case are section 7(1)(a), (c) and (g):

“(1) A person engages in corrupt conduct at an election if the person corruptly –

(a) offers an advantage to another person as an inducement for the other person –

(i) to stand, or not to stand, as a candidate at the election; or

(ii) if the other person has been nominated as a candidate at the election, to withdraw the nomination; or

(iii) if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or

…

(c) offers an advantage to another person as an inducement for the other person to get, or try to get, a third person –

(i) to stand, or not to stand, as a candidate at the election; or

(ii) if the third person has been nominated as a candidate at the election, to withdraw the nomination; or

(iii) if the third person has been nominated as a candidate at the election, not to use the third person’s best endeavours to promote the election of the third person; or

…

(g) solicits or accepts an advantage as an inducement to get, or try to get, another person –

(i) to stand, or not to stand, as a candidate at the election; or

(ii) if the other person has been nominated as a candidate at the election, to withdraw the nomination; or

(iii) if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or

…”

162.  Section 7(1)(a) and (c) relates to Party A offering an advantage to Party B as an inducement for Party B or Party C to do certain acts, with Party A as the offender. Section 7(1)(g) relates to Party B soliciting or accepting an advantage as an inducement for Party C to do certain acts, with Party B as the offender.

C.     Actus reus

163.  The corrupt conduct under section 7(1)(a) and (c) shares a common feature, namely the offering of an advantage as an inducement, whereas the corrupt conduct under section 7(1)(g) is soliciting or accepting an advantage as an inducement. This shows that both advantage and inducement are crucial elements of the actus reus of the relevant offences. This part will deal with advantage and part C2 will deal with inducement.  Another element of the actus reus involves the three circumstances referred to in sub-paragraphs (i) to (iii) of section 7(1)(a), (c) and (g), and this will be dealt with in part C3.

C1.    Advantage

164.  Section 2 of the Ordinance provides a statutory definition of “advantage”:

“advantage (利益) means –

(a) any valuable consideration, gift or loan; or

(b) any office, employment or contract; or

(c) the full or partial payment, release, discharge or liquidation of an obligation; or

(d) the exercise of or forbearance from exercising a right or power; or

(e) the performance of or forbearance from performing a duty; or

(f) any favour, including –

(i) giving protection from a liability incurred or anticipated; and

(ii) giving protection from proceedings or possible proceedings of a disciplinary, civil or criminal nature; or

(g) any other service (other than voluntary service or the provision of entertainment),

but does not include an election donation if particulars of the donation are given in an election return that has been lodged with the appropriate authority;”

165.  The statutory definition of “advantage” is very broad, encompassing virtually all kinds of benefits, but does not cover an election donation provided that the particulars thereof are given in an election return that has been lodged with the appropriate authority. In the context of section 7(1), the statutory definition of “advantage” aims to prohibit anyone from obtaining personal gains out of an election.

166.  All elections inevitably involve funding and expenses. Unless the candidates have sufficient financial means to meet election funding and expenses by themselves, they will usually accept monetary donations, donations of goods or voluntary services. Even if a candidate has sufficient financial means to meet election funding and expenses, he/she may still accept monetary donations, donations of goods or voluntary services as part of his election campaign, so as to attract the support of the general public or electors or prove that he/she has such support, in order to generate influence for his/her campaign and increase his/her chance of winning the election. To this end, the Ordinance permits the offering of election donations to candidates as well as the acceptance of election donations by candidates, so that they can meet election funding and expenses.

167.  At the same time, since monetary donations, donations of goods or voluntary services are actual benefits given to candidates or those standing as candidates, the Ordinance also imposes various restrictions on the offering and acceptance of election donations, in order to achieve the statutory object of ensuring that, as far as practicable, elections are conducted fairly, openly and honestly.

168.  The statutory definition of “election donation” is:

“election donation(選舉捐贈), in relation to a candidate or candidates at an election, means any of the following donations –

(a) any money given to or in respect of the candidate or candidates for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates;

(b) any goods given to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, and includes any goods given incidental to the provision of voluntary service;

(c)      any service provided to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, but does not include voluntary service;”

169.  Item (a) of election donation relates to meeting or contributing towards meeting election expenses, and the statutory definition of “election expenses” is:

“election expenses(選舉開支), in relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of –

(a) promoting the election of the candidate or group; or

(b) prejudicing the election of another candidate or group,

and includes the value of election donations consisting of goods and services used for that purpose;”

170.  Section 18 of the Ordinance contains stringent provisions governing the use of election expenses:

“A candidate or other person who uses election donations for a purpose –

(a) other than that of meeting, or contributing towards meeting, the election expenses of the candidate; or

(b) in the case of an election donation consisting of goods or a service, other than that of promoting the election of the candidate or that of prejudicing the election of another candidate or other candidates,

engages in corrupt conduct at an election.”

In other words, an election donation can only be used for the purpose of the election campaign of the candidate who accepts that donation, and any other use will constitute corrupt conduct.

171.  The Ordinance also imposes stringent requirements on how candidates dispose of election donations. Section 19 provides as follows:

“(1) A candidate or candidates must, on receiving an election donation of more than $1,000 or, in the case of an election donation consisting of goods or a service, of more than $1,000 in value, issue to the donor a receipt for the donation. The receipt must specify the name and address of the donor as supplied by the donor.

(2) If an election donation of more than $1,000 or, in the case of an election donation consisting of goods, of more than $1,000 in value, is given to or for a candidate or candidates and the candidate or candidates do not know the name and address of the donor, the candidate or candidates must ensure that the donation –

(a) is not used –

(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or any of the candidates; or

(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or any of the candidates or of prejudicing the election of another candidate or other candidates; and

(b) is given to a charitable institution or trust of a public character chosen by the candidate or candidates.

(3) If an election donation of money or goods has been given to or for a candidate or candidates and the donation –

(a) has not been used –

(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates; or

(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates; or

(b) is not used in the case referred to in subsection (2),

the candidate or candidates must ensure that the donation is given to a charitable institution or trust of a public character chosen by the candidate or candidates.

(4) If the aggregate of all election donations given to or for a particular candidate or a particular group of candidates exceeds the maximum amount prescribed under section 45, the candidate or the candidates belonging to the group must ensure that the excess (not including election donations of services) is given to a charitable institution or trust of a public character chosen by the candidate or those candidates.

(5) If an election donation is received by a candidate or candidates, the candidate or each of the candidates engages in corrupt conduct at an election if –

(a) the candidate or candidates fail to comply with subsection (1) or (2); or

(b) the candidate or candidates fail to comply with any other requirement of this section before the time when the candidate’s or each candidate’s election return for the election is lodged in accordance with section 37.

(6)      In this section, charitable institution or trust of a public character(屬公共性質的慈善機構或慈善信託) means a charitable institution or trust of a public character that is exempt from tax under section 88 of the Inland Revenue Ordinance (Cap. 112).”

172.  Simply put, as far as the acceptance and disposal of election donations are concerned, section 19 provides that:

(1)     If an election donation is less than $1,000, the donor can be named or anonymous and the candidate does not have to issue a receipt to the donor.

(2)     If an election donation amounts to $1,000 or above, the donor must be named and the candidate must issue to the donor a receipt as specified in sub-section (1).

(3)     If an election donation amounts to $1,000 or above and the donor is anonymous, the donation must not be used for the purpose of the candidate’s election campaign and can only be given to a charitable institution or trust of a public character chosen by the candidate pursuant to sub-section (2).

(4)     For any election donation which has not been used for the purpose of his election campaign, the candidate must ensure that it is given to a charitable institution or trust of a public character pursuant to sub-section (3). If the aggregate of all election donations received exceeds the statutory maximum, the candidate must ensure that the excess is given to a charitable institution or trust of a public character chosen by him pursuant to sub-section (4)[3]. In a nutshell, the candidate must not obtain or receive any personal gain out of the election donations.

173.  Section 37(1) of the Ordinance also provides that upon the conclusion of the election, the candidate must, before the expiry of a prescribed period, lodge with the appropriate authority an election return setting out the candidate’s election expenses at the election and all election donations received by or on behalf of the candidate in connection with the election. Section 37(2) provides that the candidate must ensure that the return is accompanied by such documents as are required under that provision. A candidate engages in corrupt conduct if he/she lodges a false or misleading election return: section 20. A candidate who fails to lodge an election return as required by section 37 commits an offence: section 38.

174.  Viewing as a whole the aforesaid provisions regarding the offering and acceptance of election donations, the legislative intent is in line with the objects as stated in section 3, namely to ensure that, as far as practicable, elections are conducted fairly, openly and honestly:

(1)     All candidates are subject to the same maximum amount in respect of election expenses; therefore, from the perspective of election expenses, all candidates are on a level playing field at the election. Even if a candidate has an edge over others in terms of means or financial resources, he/she cannot increase election expenses so as to put those with more limited means or financial resources at a disadvantage.

(2)     Every election donation is constrained by relevant provisions, so as to ensure that (a) the offering, acceptance and disposal of election donations are monitored in an open and transparent manner; (b) election donations are only used for the purpose of election expenses and will not be put to any other use; (c) all election donations that exceed the prescribed maximum cannot be retained by the candidate and must be given to a charitable institution or trust of a public character; (d) the candidate must, in accordance with section 37, give a clear account in the election return of such matters as the election donations received, their disposal and election expenses.

(3)     No candidate may obtain or receive any personal gain as a result of his/her standing as a candidate. This serves to ensure that the election is conducted honestly.

175.  As this is the legislative purpose of the Ordinance vis-à-vis election donations, the statutory definition of “advantage” encompasses virtually all sorts of benefits, but at the same time does not include election donations properly declared in accordance with the law, the purpose being to prohibit candidates from obtaining any personal gain out of the election. In the context of section 7(1), its purpose is to prohibit anyone at the election from obtaining any personal gain out of the election.

C2.    Offer, solicit or accept an advantage as inducement

176.  Section 7(1)(a) and (c) concerns offering an advantage as an inducement whereas section 7(1)(g) concerns soliciting or accepting an advantage as an inducement.

177.  For the purpose of section 7(1)(a) and (c), it is sufficient that Party A offered an advantage to Party B as an inducement; whether Party B accepted the advantage is neither here nor there. If Party B accepted it, he/she would have committed an offence under section 7(1)(e) or section 7(1)(g)[4].

178.  Likewise, for the purpose of section 7(1)(g), it is sufficient that Party B solicited an advantage from another person; whether the latter then provided Party B with an advantage is neither here nor there. If the latter did, he/she would have committed an offence under section 7(1)(c).

C3.    Circumstances set out in sub-paragraphs (i) to (iii)

179.  Section 7(1)(a), (c) and (g) refers to three circumstances:

(1)     Sub-paragraph (i) - Party B or Party C to stand, or not to stand, as a candidate at the election;

(2)     Sub-paragraph (ii) - if Party B or Party C has been nominated as a candidate at the election, to withdraw the nomination;

(3)     Sub-paragraph (iii) - if Party B or Party C has been nominated as a candidate at the election, not to use his best endeavours to promote his election.

180.  Sub-paragraphs (ii) and (iii) clearly refer to the situation in which Party B or Party C has been nominated as a candidate.

181.  The scope of sub-paragraph (i) needs further explanation.

182.  According to section 2 of the Ordinance, the statutory definition of “candidate” is:

(a)     “candidate” means a person who stands nominated as a candidate at an election; and

(b)     “candidate” also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election,

and in relation to an election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, “candidate” includes a person who is one of a group of candidates.

183.  The statutory definition of “group of candidates” is:

(a)     “group of candidates” means the persons whose names appear on a list of candidates nominated for election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, other than persons whose names have, in accordance with section 38 of the Legislative Council Ordinance (Cap. 542), been excluded from or struck off such a list; and

(b)     in relation to a time before the close of nominations for such an election, “group of candidates” also means those persons who have publicly declared their intention to stand for election as candidates whose names appear on such a list, but does not include persons who have publicly revoked their declaration of intention to stand at the election.

There are thus two types of candidates: (1) a person who stands nominated as a candidate; and (2) a person who, before the close of nominations, has publicly declared an intention to stand as a candidate but has not yet been nominated.

184.  For Party B or Party C “to stand as a candidate”, he/she either stands nominated as a candidate or has publicly declared an intention to stand as a candidate before the close of nominations, although has not yet been nominated.

185.  For Party B or Party C “not to stand as a candidate”, the following circumstances may be involved:

(1)     If he/she has never publicly declared an intention to stand as a candidate, he/she will neither so declare nor stand nominated as a candidate. In that case, of course he/she is not to stand as a candidate.

(2)     He/she has publicly declared an intention to stand as a candidate but has thereafter publicly revoked that declaration. In that case, naturally he/she is not to stand as a candidate.

(3)     He/she has publicly declared an intention to stand as a candidate but does not stand nominated as a candidate. Despite the fact that he/she has publicly declared to stand as a candidate and is therefore still a candidate as a matter of law, only those who are validly nominated can stand as candidates upon the close of nominations and be elected by electors. Therefore, by not standing nominated, he is, in effect, not to stand as a candidate.

186.  The offences under section 7(1)(a), (c) and (g) are offering, soliciting or accepting an advantage as an inducement for the acts referred to in sub-paragraphs (i), (ii) or (iii). It will be sufficient as long as the offender offered, solicited or accepted an advantage as an inducement; whether the acts referred to in sub-paragraphs (i), (ii) or (iii) were actually done is neither here nor there.

D.     Mens rea

187.  Section 7(1) starts by stating that a person engages in corrupt conduct at an election if he/she “corruptly” does the specified acts. “Corruptly” is the mens rea of all the offences under section 7(1). The interpretation of the word “corruptly” requires a consideration of the context and purpose of the relevant provisions.

188.  The offences under section 7(1) aim to prohibit anyone from obtaining personal gains from an election. Any act of offering, soliciting or accepting an advantage goes against the legislative purpose of enacting the section 7(1) offences and will certainly prevent an election from being conducted fairly, openly and honestly. In other words, the section 7(1) offences must be inherently culpable. Therefore, as long as the offender had the intent to commit the corrupt conduct in question, he must have acted “corruptly”. The dual intent mentioned by the trial judge is unnecessary.

189.  The applicant cited the Hansard in relation to the amendment of section 7(1), which shows that the word “corruptly” was not in the original bill and was added only after deliberation by the Legislative Council. This, in my view, offers little assistance to the interpretation of the word “corruptly”. As mentioned above, the court may refer to the Hansard to ascertain the context and purpose of an ordinance. However, the court usually will not determine the meaning of words in a particular provision by reference to discussions in the Legislative Council. In respect of the Ordinance, its context and purpose, which are expressly stated in section 3, cannot be clearer. In interpreting the word “corruptly” by way of the purposive approach, regard must still be had to the actual words used by the legislature and the objective legislative intent expressed by those words.

E.     No Violation of the Basic Law or the Bill of Rights

190.  Finally, it must be pointed out that the purpose of the Ordinance is to ensure that elections are conducted fairly, openly and honestly, and section 7(1) prohibits the relevant corrupt conduct so as to eradicate the manipulation of or influence on the outcome of elections by people using financial means, which hinders electors and candidates from exercising their free will through elections. Section 7(1) does not violate the provisions of the Basic Law and the Bill of Rights relating to elections. In this respect, the position taken by and the submissions made by Mr. Kwok on behalf of the 2^nd Applicant are wholly untenable.

F.     Conviction is Correct

191.  On the correct interpretation of section 7(1)(a), (c) and (g) of the Ordinance, and in light of the findings of fact of the trial judge, the 1^st to 3^rd Applicants must have committed the relevant offences. The guilty verdicts passed on them by the trial judge are entirely correct.

Hon Pang JA:

192.  I agree with the judgments of Yeung VP and Poon JA.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.

[1] Part 2 (sections 6 to 21) and Part 3 (sections 22 to 28) of the Ordinance set out the provisions relevant to corrupt conduct and illegal conduct respectively. Illegal conduct includes: persons other than candidates and election expense agents incurring election expenses (section 23), candidates incurring election expenses which exceed prescribed amount (section 24), publishing false statement that a person is or is not a candidate (section 25), publishing false or misleading statements about a candidate (section 26), and publishing election advertisement that includes false claim of support (section 27).

[2] The relevant provisions are sections 7, 11, 12 and 21. Section 11 concerns corrupt conduct to bribe electors or others at elections; section 12 concerns corrupt conduct to provide others with refreshments and entertainment at elections; section 21 concerns corrupt conduct to withdraw election petition or election appeal for a bribe. Same as section 7, both sections 11 and 21 concern corrupt conduct to offer, solicit or accept an “advantage”.

[3] See the relevant subsidiary legislation for the prescribed maximum amount of election expenses. It is illegal for a candidate to incur election expenses which exceed the prescribed maximum amount: section 24.

[4] The corrupt conduct under section 7(1)(e) is:

     “solicits or accepts an advantage as an inducement -

(i) to stand, or not to stand, as a candidate at the election; or

(ii) if the person has been nominated as a candidate at the election, to withdraw the nomination; or

(iii) if the person has been nominated as a candidate at the election, not to use the person’s best endeavours to promote the election of the person”