HKSAR v. TAI HIN WING

HCMA 108/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 108 OF 2013

(ON APPEAL FROM ESCC 2930 OF 2012)

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J U D G M E N T

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BACKGROUND

1. On 15 November 2012, the Appellant was convicted after trial before a magistrate of one charge of “engaging in corrupt conduct with respect to voting at an election”.  On 29 November 2012, the Appellant was sentenced to 3 months’ imprisonment.

2. He now appeals against both conviction and sentence.

THE PROSECUTION CASE

3. It was admitted that, on 16 May 2011, the Registration and Electoral Office (“REO”) received an application for voter’s registration which bore the Appellant’s personal particulars.  The residential address reported on the form (“the 1^st Form”) was an address at Fa Yuen Street, Mongkok.  On 16 July 2011, the REO received another form (“the 2^nd Form”) which again bore the Appellant’s personal particulars.  This time, however, the residential address was one at No. 50 Soy Street, Mongkok.

4. Based on the newly reported address, the Appellant was entitled to vote in the King’s Park Constituency Area.  However, the fact was that the Appellant had never resided in the Soy Street address.  The place was used by its owners for the storage of goods.

5. At trial, the Register of Electors (“the Register”) which had the Appellant’s entry crossed out in red was also produced through the Admitted Facts.

6. On 6 November 2011, the fourth District Council Election was conducted.  It was not disputed that, on that day, three tables were set up at Tung Wah Lo Yu Chik Primary School Polling Station (“the Polling Station”) to which the Appellant had been assigned, and four polling officers were tasked to man each table in shifts with two officers on duty at any one time.

7. Apart from the Admitted Facts, the prosecution called a number of witnesses to testify at trial, including the four polling officers (PW3-PW6) who were responsible for manning the table which the Appellant should approach for getting his ballot paper.

8. PW3 to PW6 all stated that they would check a voter’s identity card before issuing the ballot paper.  They also said that as another polling officer would cross-check the voter’s identity card before crossing out the voter’s entry on the Register, they would not make any mistake on this.

9. In short, the prosecution alleged these matters :

(1) the Appellant had knowingly provided to the REO the information, including the false address at Soy Street, on the 2^nd Form or had knowingly allowed others to do so; and

(2) the Appellant had attended the Polling Station to obtain the ballot paper which resulted in the crossing-out of his entry on the Register.

THE DEFENCE CASE

10. The Appellant chose to give evidence and called one witness. Briefly, the Appellant stated that he slept until about noon on the day of the election.  He then went to work in Tuen Mun in the course of which he had made his work records which he produced at trial.  The Appellant’s supervisor gave a similar account about working together with the Appellant on that day.  In gist, the Appellant denied having gone to the Polling Station.

11. As regards the 1^st Form, the Appellant admitted that it was filled in by him.  He, however, said that he was merely trying to help out on that occasion as he was approached by someone in the street for voter registration.  The Appellant stated that he had no intention to vote and he had not received any election related material. Concerning the 2^nd Form, the Appellant denied having anything to do with it.

12. The Appellant mentioned that someone might have used his personal particulars to fill in the 2^nd Form as he had disclosed such personal particulars on various occasions, including applying for mobile and other services as well as when joining trips.

THE GROUNDS OF APPEAL AGAINST CONVICTION

13. Mr Andrew Bruce, SC, and Mr Simon Ng, who act for the Appellant, advance the following grounds of appeal in relation to conviction :

(1) the magistrate erred in finding that the person who attended to vote and who caused the name of the Appellant to be marked off the Register must have presented a genuine Hong Kong Identity Card (“HKID”) when there was no evidence that the officer who inspected the card was relevantly skilled in determining whether the HKID was genuine or not;

(2) there was no evidence to properly justify the conclusion that the Appellant was in any respect a party to the 2^nd Form;

(3) the magistrate reversed the burden of proof in finding that the Appellant could have voted at times not covered by his evidence; and

(4) the conviction was unsafe and unsatisfactory.

Ground (1) : The Issue Of Opinion Evidence

14. The main thrust of the Appellant’s argument is that PW3 to PW6 were erroneously allowed to give opinion on the following two matters :

(a) whether the card bearing the Appellant’s personal particulars presented to them was a genuine HKID; and

(b) whether the person who presented the card was the Appellant.

15. The Appellant submits that the first matter is one of expert evidence, and since all the four polling officers admitted that they had not received any training and had not acquired any skill or experience in the examination of HKID, they should not have been allowed to offer any opinion on whether the card presented was a genuine HKID.

16. In respect of the second matter, the Appellant argues that while a lay person is entitled to give an opinion on the comparison of the image on the card and the facial features of the one presenting it, it still falls within the ambit of identification evidence.  The Turnbull guidelines were therefore applicable.  However, the magistrate did not address this in her evaluation of the evidence.

17. Before examining these two matters, it is necessary to first recapitulate the officers’ evidence so as to see what they actually said at trial and to understand their evidence in its proper context.

		Evidence in Chief:		Evidence in Re-examination
PW3	“A:	Well, when the elector comes and gives us his/her ID card, we take a look.  Look at the ID card first, and then look for (it).  When (it’s) found, take a look also at the name, and then take a look also at the face.  (If it’s) okay, then insert the line.	“A:	In fact, it was not exactly inspection; it’s checking instead.  Take a look, if the face is right, then that’s it. I – if you use (the word) ‘inspection’, I feel (it) should be something more refined.  If you say ‘inspection’, but we only checked the face.  I feel it’s only called checking of the face.  That’s also what the guidelines say, look at the face to see if (it’s) right, right?
	…
	A:	The elector comes, and then hands over his/her ID card. Take this as the ID card. Then we look at the ID card number here.  After (we’ve) looked, (we) search, because there are so many here. We’ve found his/her ID card, and then we look at the name. After the face was checked, okay, we get a red pen and a ruler to insert (a line).” (Appeal Bundle pages 341 and 342)	…    A:	In a word, if there were doubts, any doubt at all, we would raise our hand to ask – refer (it) to APRO or PRO to handle because we did not have time to deal with these because there were a lot of lines behind, because a lot of people had lined up behind. It wasn’t our responsibility either to authenticate the ID cards. The most important thing is to check the ID number, the name, check the face (so that) it’s this person, and that’s it. Other matters, don’t believe they fall within the scope of duties of us, the POs. ….
			A:	That is, it’s very rare someone would produce to us a fake ID card.
			Q:	Or put it in a simple way, you don’t have professional knowledge to tell the authenticity of ID cards.  But if you received an ID card that you thought was fake, by using your …
			A:	Judgment.
			Q:	knowledge, yes, or judgment, would you give out a ballot paper to that elector?
			A:	Of course not.  Should be the case (I) wouldn’t.” (Appeal Bundle pages 345 and 347)
PW4	“A:	I was responsible for checking ID card information of electors, and after the checking was completed (without problem) erasing (the electors’) names on the Register of Electors, and then handing out ballot papers to them.	“Q:	Well, would you accept a – that is, on that day, when checking an ID card, would you accept an ID card which was not genuine according to your basic cognition and hand out a ballot paper to that elector?
	…
	A:	Like what I said just now, when an elector comes in, we need to check – take his/her ID card, check his/her face and ID card number to see if (these) match with the information on the Register of Electors. And then after we check, that is, upon confirmation together with another PO who’s at my table, (we) need to hand out a ballot paper to (the elector). …” (Appeal Bundle page 349)	A:  … Q:  A:	(I) wouldn’t.   Actually, the meaning of, by saying authenticate (and) check ID cards together, what do (you) mean?  When an elector came, the ID card was placed between the two of us, checked together, checked the face, and checked the ID number on the name list to see if it’s correct.” (Appeal Bundle page 361)
PW5	“A:	… Well, once there, the elector would give us his ID card, we, for example, the first one, let’s call him PO A, he would take the ID card and check the person’s face against the ID card to see if it’s right, and then, on the Register of Electors, see if his name as appeared on his ID card is on the register, if it is, PO A would draw a line on his name on the register to prove that he has come.  Well, another PO, let’s call him PO B, would countercheck his face and his name, if it’s confirmed that there’s no problem, then tear out a ballot paper and give to him, …” (Appeal Bundle pages 367 and 368)	“Q:	Well, regarding how an ID card should look, you would have …
			A:  Q:   A:	Have certain knowledge. … have certain knowledge? Yes.
			Q:	Well, in other words, if, according to your knowledge, about how an ID card should look, and assuming that you received an ID card handed to you by an elector that day and it’s not genuine, would you have accepted that ID card and handed out a ballot paper to that elector?
			A:	No, no.” (Appeal Bundle page 372)
PW6	“A:	Firstly – firstly, came before (us), passed ID card over, well, we checked the ID card and the paper – struck out the ID card and the name, and checked the ID card to see if it’s the same person, yes, then the one next to (me) would tear out a ballot paper and handed out to him, yes.	“Q:    A:  Q:	That means, you have basic cognition of what an ID card is like, right? Yes, yes. So on that day, if you received from an elector, according to your cognition, an ID card you reckoned to be false, would you have issued ballot paper to that elector?
	Q:	You said to check the face to see if they are the same, firstly?
	A:	Yes.
	Q:	Secondly, to check the name …  …	A:	Would not.” (Appeal Bundle page 384)
	Q:	Looked at his face and what?
	A:	To check if the name on the ID card is the same, and if his photo is the same.” (Appeal Bundle pages 377 and 381)

(A)   The First Matter : HKID

18. I shall first deal with the examination of the cards by PW3 to PW6 : did they express an opinion on the genuineness of the cards?

19. Judging from the evidence above, the answer is clearly in the negative.  None of the polling officers purported to give any expert opinion on the genuineness of the cards.  None told the court that the cards were genuine HKIDs.  Quite the contrary, one specifically told the court that “inspection … should be something more refined” and frankly stated that “It wasn’t our responsibility either to authenticate the ID cards.”  Another also explained that checking the cards simply meant this, “checked the face, and checked the ID number on the name list to see if it’s correct.”

20. No doubt, it is evident all that the officers said was they had checked the number and the name on the cards to see if those matched with the particulars on the Register.  They had also checked the face.  That was it.  No one ever proffered any expert opinion.

21. In my view, the polling officers were entitled and rightly allowed to testify on this fact of “checking the cards”.  They were the ones on duty on that day and the cards were given to them for action.  They were the ones to say what actions they had taken in respect of the cards passed to them.  None of these touches upon any area which requires expert opinion evidence.

22. I therefore do not agree that the polling officers gave any opinion on the genuineness of the cards.  They did not.  They merely testified on what they did with the cards on that day.

23. Insofar as the officers’ evidence in re-examination is concerned, Mr Bruce argues that the officers were, again, erroneously allowed to express their opinion on whether the cards were genuine or not.  It is suggested that prosecuting counsel sought, during re-examination, to put forth for the court’s consideration the officers’ own opinion on whether they found any irregularity about the cards.

24. While it is true that all four officers were asked whether they had any basic idea as to how a HKID should look, it is not correct to say that the officers had then expressed any inadmissible opinion evidence.  What the officers said were merely these : I myself had a HKID; I had a basic idea as to how a HKID should look; I had checked the cards presented to me on that day; I, based on my own experience about HKID, did not find anything suspicious or irregular about the cards; and I therefore issued the ballot papers accordingly.

25. Clearly, these were matters on which the officers could give evidence.  They were there explaining why they issued the ballot papers and what they would do if they found the card suspicious.  In other words, the officers simply told the court the reasons for their actions on that day. They did not offer any inadmissible opinion evidence.

26. At paragraph 50 of the Statement of Findings, the magistrate stated,

“Having considered the evidence, I found that the only irresistible inference is that the Appellant had voted at the elections for the following reasons :

…

c. They also confirmed that the chances of error are very small because 2 Polling Officers would check the information together and they would act as a cross-check to ensure that the correct name was found before the name was crossed out. …

…

g.     On the day of the incident, PW3-PW6 did not come across any voter in which their identity card or their identity raised any suspicion.”

27. Further, at paragraph 54 of the Statement of Findings, the magistrate stated:

“I had considered the Defence Counsel’s submissions that someone could have forged an identity card and impersonated the Appellant to vote. However, I did not accept this submission.

(a) Firstly, for reasons already given, I found the information provided in the form Exhibit P4 was provided by the Appellant.

(b) Secondly, for reasons already given, I did not accept the Appellant’s evidence. In particular, I did not accept his claim that he did not go to vote.

(c)        Thirdly, I noted that PW3 – PW6 were clear in that if they had any doubt as to the voter’s identity they would immediately raise it with their senior.  However on the day, there was no such case that caused them to suspect.  I found it highly unlikely that a person could impersonate the Appellant by using a forged identity card without raising the suspicion of 2 Polling Officers who would have cross-checked the identity card.”

28. It might be that the last part of what the magistrate said in each of the above two paragraphs would give the impression that she had relied on the “opinion evidence” of the polling officers.  However, on a closer examination and with reference to the evidence set out above, one is confident to say that the magistrate must have been clear that the officers had no training, expertise and skill concerning the examination of HKID.  It should also have been apparent to the magistrate that when the officers told the court they had no suspicion, they were only saying so based on their own limited knowledge of how a HKID should look.  All these were clear on the evidence.

29. Obviously, the crucial question in this case is whether the magistrate was entitled to find that the Appellant had attended the Polling Station.

30. Given the almost identical entries made on the 1^st and the 2^nd Form (the name in Chinese and English; the Chinese Commercial Code; the gender; the stated language preference, and the mobile phone number), the magistrate was entitled to find that the Appellant must have knowingly provided the 2^nd Form (or knowingly allowed others to do so).

31. Although the Appellant alleged that he had, on other occasions, disclosed his personal particulars to different bodies, the magistrate was entitled to regard the claim of unauthorized use of the Appellant’s particulars on the 2^nd Form as being fanciful.  The reasons for this finding are apparent.  To achieve vote planting, the submission of the Form itself would not be sufficient. The fraudster(s) would also need to make a forged identity card by using the Appellant’s particulars and to find someone to present the card and impersonate the Appellant on the day of the election in order to obtain the ballot paper.

32. Moreover, the scheme would fail if the Appellant turned out not to be qualified for registration or voting.  Even if the Appellant was so qualified, the scheme might also be exposed for the Appellant might make enquiries with the REO at any time and he would then find out that he had been placed in a different constituency.

33. In my view, to suggest that a fraudster or someone from or connected with the service companies and similar organisations would be prepared to do all these and to run all the risks in order to obtain just one ballot paper is a fanciful suggestion.

34. If, the suggested unauthorized use was not for vote planting but for making fun of the Appellant or causing him inconvenience, then this suggestion is equally fanciful.

35. Therefore, based on the finding that the Appellant was a party to the submission of the 2^nd Form and the other evidence available, the magistrate was entitled to draw the only reasonable inference that the Appellant had attended the Polling Station. 

36. Hence, what the magistrate said in the last part of paragraphs 50 and 54 of the Statement of Findings must be viewed in its proper context and not in isolation.

37. The magistrate’s rejection of the “forged identity card” submission was not as a result of any reliance being placed on any expert opinion expressed by the polling officers about the genuineness of the cards.  There was simply no such expert evidence adduced.  Instead, the magistrate, when rejecting the submission, relied on the finding that the 2^nd Form was knowingly provided by the Appellant; that a HKID bearing the Appellant’s personal particulars was presented to the polling officers on the day of the election; and that both officers had checked the card before crossing out the Appellant’s entry on the Register.

38. In the circumstances, the Appellant’s claim that the magistrate had erroneously allowed the polling officers to give expert opinion evidence on the genuineness of the cards or had erroneously relied on it is not made out.

(B)   The Second Matter : The Turnbull Guidelines

39. I shall now turn to the second matter, that is, the suggestion that the Turnbull guidelines were applicable.

40. It should be clear from the evidence set out above that, at trial, none of the polling officers purported to give any identification evidence.  None of them testified that they knew how the Appellant looks.  In other words, none of them told the court that they were able to identify the Appellant on the day of the election.  They never said that the one presenting the HKID bearing the Appellant’s personal particulars was the Appellant himself.  The evidence was not in this vein.

41. What the officers said was simply this: I had looked at the image on the card and I had looked at the person presenting the card, there was not much difference between the two.  Clearly, this was a matter on which the officers could give evidence.  Therefore, while it is true that the officers all admitted having only a glance or so of the person presenting the card, this would not turn their evidence, that is, the making of a comparison between the image on the card and the appearance of the person standing before them, into identification evidence requiring the application of the Turnbull guidelines.  No identification evidence was involved in this case.  As mentioned above, none of the polling officers testified that they had seen the Appellant before the election and were therefore able to “identify” the Appellant on the day in question.  Their evidence was only about the matching exercise and nothing more.

42. As to the question of how much weight should be given to such a matching exercise, this is certainly a matter for the magistrate but one thing is sure, the Turnbull guidelines did not have any application in this case.

43. Moreover, the crucial question remains this: was the magistrate entitled to draw the irresistible inference that the Appellant had attended the Polling Station on that day.  For the reasons set out earlier, I consider that she was so entitled.

44. Therefore, this second matter relied on by the Appellant is again a non-starter.

45. In view of the above, the Appellant’s Ground (1) fails.

Ground (2) : The Appellant Being A Party To The 2^nd Form

46. The magistrate provided in the Statement of Findings her reasons for rejecting the evidence of the Appellant and his witness.  Plainly, as a fact-finder, the magistrate was entitled to so find.  Her findings were not perverse.  Similarly, the magistrate was entitled to conclude, based on the evidence before her, that the Appellant either knowingly provided the 2^nd Form which contained the false address or knowingly allowed others to do so.  The suggestion that someone had somehow got access to the Appellant’s personal particulars and used the same on the 2^nd Form is fanciful.

47. Mr Bruce criticizes, in his written arguments, that the magistrate had not directed her mind to the question of the change from one Mongkok address to another Mongkok address.  Mr Bruce suggests that such was wholly unnecessary. However, it was an admitted fact that the two properties held by the Appellant’s mother (including the address provided by the Appellant on the 1^st Form) did not fall within the King’s Park Constituency Area.  Only the false address given on the 2^nd Form did.  In other words, there were clear reasons why the Appellant had to resort to the use of a false address.

48. Mr Bruce also argues that there was no allegation about the Appellant having received any payment or other advantage.  This point could be quickly dealt with.  The prosecution was not required to prove the receipt of reward.  The magistrate’s finding that the Appellant must have been a party to the submission of the 2^nd Form was based on all the evidence adduced before her.  At the time, she was aware that there was not any evidence about reward.  If there had been such evidence, it might have been that it would strengthen the prosecution case but it does not mean that its absence would then render the magistrate’s conclusion unsound.

49. This ground has no merit.

Ground (3) : The Reversal Of The Burden Of Proof

50. At paragraph 38 of the Statement of Findings, the magistrate emphasized this, “Although I rejected the Appellant and the Defence Witness’s evidence, I must consider whether the Prosecution’s evidence on its own proved the charge against the Appellant beyond reasonable doubt.”  It was then that the magistrate started to deal with the elements of the offence and made her findings of fact.  In making those findings, the magistrate stated that she accepted the evidence of the prosecution witnesses.  She also relied on the evidence available to draw the inference.

51. Nowhere in the magistrate’s findings did she reverse the burden of proof.  She concluded that the Appellant must have attended the Polling Station based on the available evidence, not based on any failure of the Appellant to account for the entire voting period.

52. This ground also fails.

Ground (4) : The General Ground

53. Having rejected Grounds (1) to (3) and having considered this case, I do not find that the conviction was in any way unsafe or unsatisfactory.  This general ground must fail.

THE APPEAL AGAINST SENTENCE

54. Before sentencing, the magistrate had obtained a background report and a medical report on the Appellant.  The Appellant had, prior to this offence, a clear record and, at the time of sentence, the Appellant was about to get married.  His fiancée was pregnant. In mitigation, it was emphasized that the Appellant was unlikely to reoffend.  In respect of his knee injury sustained in 2011, the medical report disclosed that the Appellant’s general condition was satisfactory.

55. The magistrate, after considering the case of Secretary for Justice v Lai Wai Cheong [1998] 1 HKLRD 56 and the Appellant’s mitigation, stated that the offence was serious and a deterrent sentence was called for. Further, in order to avoid any potential disparity in sentences between the Appellant and the other Defendants in the case and having considered all the relevant matters including that there were no exceptional circumstances to justify a suspended term, the magistrate imposed an immediate custodial sentence of 3 months.

56. Mr Bruce suggests that when balancing the harm to the electoral process against the Appellant being a mature person of previous good character and that he actually had the right to vote although in the wrong constituency, neither imprisonment nor such length of imprisonment imposed was warranted here.  In this connection, it is worthwhile to recapitulate what Chan CJHC, as he then was, said in Lai Wai Cheong,

“We think that ‘vote planting’ is a very grave election offence. … ‘Vote planting’ is to deploy deceptive means to deliberately undo what has been done by the Boundary and Election Commission and the Government authorities. It is aimed at influencing election results, and will directly affect the fairness of the election and damage the election system. It is not only a fraud on the Registration and Electoral Office but also on the electors and other candidates. This would also lead to a re-election or by-election, thus wasting further time and resources. Such practice must be stopped at all costs. The court is duty bound to impose deterrent sentences in order to stamp out all sorts of corrupt and illegal practices.

… Hence, we think that ‘vote planting’ and similar electoral illegal practices, whether they are committed by electors or candidates and campaigners, unless there are very special circumstances, must be punished by immediate custodial sentences. The length of sentence would depend on the degree and method of participation in such practices. We consider that an elector participating in such practices should receive an immediate custodial sentence of two months or more and a candidate or election campaigner four months or more.” (p 60 C-H)

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

58. Obviously, the vice of these offences is not only the obtaining of a ballot paper when one does not have the right to do so.  It also relates to the casting of a vote in a constituency to which one does not belong albeit that he has a right to vote.  As observed in Lai Wai Cheong, the concern is the disruption and damage caused to the election and the related unfairness.  Therefore, I do not regard it as a ground to reduce the sentence merely because the Appellant had the right to vote at the time of the offence.  Plainly, whether he had such a right or not, he had, through his fraudulent act, interfered with the electoral process as he originally had no right to vote in the King’s Park Constituency.  The evil of vote planting and similar offences lies in such interferences.  These are what the court seeks to stamp out by imposing deterrent sentences.

59. In this case, given the facts and the Appellant’s role, I do not consider the immediate custodial term of 3 months to be manifestly excessive. Nor is the imposition of this term wrong in principle.

CONCLUSION

60. For the reasons set out above, the Appellant’s appeal against conviction and sentence are dismissed.