LEUNG KAM HO, GILBERT v. R.

IN THE COURT OF APPEAL

1993, No. 286
(Criminal)

- Headnote -

Criminal law - Accomplice evidence - Jury should have been directed to consider the supporting evidence globally, along lines indicated in Reg. v. John Hills [1988]86 Cr. App.R.26.

Section 5(a) Corrupt and Illegal Practices Ordinance Cap. 288 - absence of the word "corruptly" in the section contrasted with s7 (dealing with the offence of "treating").

Section 4(1)(a) Prosecution of Bribery Ordinance - the words "in his capacity as a public servant" in relation to a Regional Councillor voting in the Regional Council functional constituency construed - test laid down by Leonard J in Reg. v. Kong Kam-piu [1973] HKLR 120 and approved in A.G. v. Ip Chiu [1980] AC 663 applied.

Appeal dismissed.

IN THE COURT OF APPEAL

1993, No. 286
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. The applicant Mr. Gilbert LEUNG Kam-ho was, until his conviction after trial before Keith J and a jury on 2 June 1993 for corruption offences, a serving member of the Legislative Council. The crimes on which the applicant stood convicted arose out of the September 1991 elections when, for the first time in Hong Kong, members were returned to the Legislative Council from an enlarged franchise which included geographical constituencies. The applicant was elected to serve in the Legislative Council by the Regional Council functional constituency. This case has attracted wide-spread publicity in Hong Kong. Rightly so. There is almost nothing more important for the community at this stage of Hong Kong's development than that the growth of democracy should be untainted by corruption.

2. The applicant was convicted on three counts in an indictment which contained a total of eight counts. Counts 1 and 2, 3 and 4, 5 and 6 were "paired": that is, Counts 2, 4 and 6 were alternatives to Counts 1, 3 and 5. The applicant was acquitted on Count 3 and convicted on Counts 1, 4 and 5. Accordingly the jury was discharged from returning a verdict on Counts 2 and 6.

3. The charges on which the applicant was convicted read:

First Count

STATEMENT OF OFFENCE
Offering an advantage to a public servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

PARTICULARS OF OFFENCE
LEUNG Kam-ho, Gilbert on a day unknown in about late August 1991, in Hong Kong, offered an advantage, namely a gift or reward of an unspecified sum of money without lawful authority or reasonable excuse to a public servant, namely FUNG Pak-tai, a member of the Regional Council as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant, namely voting favourably for the said LEUNG Kam-ho, Gilbert in the election of a Regional Council member to the Legislative Council on 12th September 1991.

Fourth Count

STATEMENT OF OFFENCE
Bribery, contrary to sections 4 and 5(a) of the Corrupt and Illegal Practices Ordinance, Cap. 288.

PARTICULARS OF OFFENCE
LEUNG Kam-ho, Gilbert on or about the 5th day of October 1991, in Hong Kong, gave a sum of money, namely an amount of $50,000 Hong Kong currency to LAU Hon-kit on account of FUNG Pak-tai having voted favourably for the said LEUNG Kam-ho, Gilbert in the election of a Regional Council member to the Legislative Council on 12th September 1991.

Fifth Count

STATEMENT OF OFFENCE
Offering an advantage to a public servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

PARTICULARS OF OFFENCE
LEUNG Kam-ho, Gilbert on or about the 4th day of September 1991, in Hong Kong, offered an advantage, namely a gift or reward of $100,000 Hong Kong currency without lawful authority or reasonable excuse to a public servant, namely CHEUNG Hon-chung, a member of the Regional Council as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant, namely voting favourably for the said LEUNG Kam- ho, Gilbert in the election of a Regional Council member to the Legislative Council on 12th September 1991.

4. At the outset of his summing-up, the judge said to the jury:

" In this case, the defendant does not deny making the offers to which Counts 3 and 5 relate. That much we could tell from Mr. CHENG's cross-examination of the various witnesses. The defendant does not deny giving the cheque for $50,000 to Mr. LAU to which Count 3 relates and he does not deny offering the $100,000 in cash to Mr. CHEUNG to which Count 5 relates. The real issue on those counts is what the sums of money were given for.

However, the defendant does deny making the offer to which Count 1 relates - the offer of a packet which the Crown says he pressed Mr. FUNG to take at the Shatin Seafood Restaurant. So one of the issues on Count 1 which you are going to have to decide is whether you are sure that the defendant did indeed press Mr. FUNG to take a packet on that occasion, and that is one of the areas in the evidence that I shall be discussing with you when I come to review all the evidence on Monday."

5. It is not suggested by counsel for the applicant in this court that the passage above is a misdirection nor that the judge had, in any way, mis-stated the issues which the jury had to consider. This is something which we must bear in mind, considering some of the points which have been argued in this court.

Background facts

6. On 12 September 1991 elections were held for the Legislative Council. At all material times the applicant, FUNG Pak-tai (the elector mentioned in Counts 1 and 4) and CHEUNG Hon-chung (the elector mentioned in Count 5) were three of the 36 members constituting the Regional Council. For the purposes of the elections the Regional Council was a functional constituency.

7. The statutes which governed the right of an elector to vote in a functional constituency were (i) the Electoral Provisions Ordinance, Cap. 367 and (ii) the Legislative Council (Electoral Provisions) Ordinance, Cap. 381. In order to vote in a functional constituency, such as the Regional Council functional constituency, a person must : (i) be a member of a specified functional constituency, such as the Regional Council functional constituency, as defined in the Legislative Council (Electoral Provisions) Ordinance, Cap. 381 and (ii) be qualified as to age, residence in Hong Kong etc. and be registered as an elector pursuant to the provisions of the Electoral Provisions Ordinance Cap. 367. FUNG Pak-tai (Fung) and CHEUNG Hon-chung (Cheung) were so qualified.

Count 1: Background facts

8. WAI Hon-leung was a senior member of the Heung Yee Kuk and was, as counsel for the applicant, Mr. Griffiths QC, described him, the applicant's "political advisor". Some time before the September 1991 elections Wai was asked by the applicant to ask Fung to vote for him in those elections. (Apart from being a member of the Regional Council, Fung was also a senior member of the Heung Yee Kuk and Chairman of the Cheung Chau Rural Committee). Wai's response to the applicant's request was that the applicant should get in touch with LAU Hon-kit instead, as Lau was very friendly with Fung. Lau was also a member of the Heung Yee Kuk and Chairman of the Shatin Rural Committee.

9. Through Lau, a lunch meeting was arranged at the Shatin Seafood Restaurant in late August 1991, between the three of them: the applicant, Lau and Fung. What took place at the Shatin Seafood Restaurant formed the subject matter of Count 1.

10. It was common ground in the court below that the applicant asked Fung to vote for him at the forthcoming elections. There was also some mention at the lunch meeting of a piece of litigation involving Cheung Chau and Fung told the applicant that the costs had already exceeded $1m. It is worth mentioning that, in relation to Count 1, this piece of evidence was irrelevant, since it was never the applicant's case that he was proposing to offer, or had offered, to Fung a contribution to the litigation fund at the Shatin Seafood Restaurant meeting in late August 1991. The applicant's case was that he made no offer of money of any kind to Fung and that Fung's testimony to that effect was a fabrication. This evidence was, however, relevant to Count 4: it constituted in effect part of the applicant's defence to Count 4, as the applicant's case was that the handing over of a cheque for $50,000 in October 1991 to Lau (the subject of Count 4) was meant to be a contribution to the Cheung Chau litigation fund. This serves, perhaps, to demonstrate a point made to us by counsel for the respondent, Mr. McMahon, that at the end of the day, the evidence must be seen as a continuous spectrum: an attempt to bribe Fung in late August (Count 1) matured into a reward offered on 5 October on account of Fung having voted for the applicant (Count 4).

11. In essence, the prosecution case concerning Count 1 was this: Whilst Lau had gone to the lavatory, after the meal was over, the applicant stood up and tried to give Fung a small packet, which Fung refused to accept. The applicant tried again, saying that it was a treat for tea. Fung again refused to accept it. The question for the jury quite simply was whether, having regard to all the relevant circumstances, they were satisfied that Fung was telling the truth in this regard.

12. The judge invited the jury to view Fung's story as to what happened at the Shatin Seafood Restaurant against the background of the following matters:

(I) The evidence relating to Count 4: After the election, on 5 October 1991, the applicant had given Lau a cheque for $50,000, with the payee left blank, which, the prosecution said, was meant to be a pay-off for Fung. The suggestion was simply this: If the jury were satisfied that $50,000 had been offered to Lau on account of Fung having voted for the applicant, that might throw some light on whether Fung's story as to what happened in late August, before the election, was true: namely, that the applicant had tried to bribe Fung to vote for him at the September elections.

(ii) Wai testified that, before the election, on about 6 or 7 September, he and the applicant met LAU Wong-fat, Chairman of the Heung Yee-kuk and a Legislative Council member, to enlist his support. According to Wai, in the course of that meeting, LAU Wong-fat had said that the applicant's rivals were working hard and it had been said that water had been left running, whereupon the applicant replied: "How much water has been left running and who are the people who have been paid?", and added that if water needed to be used he could afford to do that. This version of events, as the judge pointed out to the jury, had been denied by LAU Wong-fat.

(iii) Wai's testimony that, after the Shatin Seafood Restaurant meeting, the applicant had told him that he had paid Fung: not, as Fung testified, that the applicant had tried to give him "tea money" but he Fung had refused the packet offered.

13. As to the last point, in fact as we have recently seen from an extract of Wai's examination-in-chief, this was a little more favourable to the applicant than the evidence revealed, because Wai also said that when the applicant had given Fung something Fung had refused it.

14. As can be seen, the applicant's conviction on Count I hung on Fung's credibility as a witness. The applicant did not give evidence at the trial. This was, of course, his right, but it meant that Lau's and Fung's evidence was, in effect, uncontradicted by the applicant himself. Lau testified to the effect that he had received a phone call from the applicant one day asking him to arrange a meeting with Fung: earlier, the applicant had asked Lau if he could get people to vote for him. This was how the meeting at the Shatin Seafood Restaurant came about. Plainly, if the jury accepted Fung's evidence as to what had occurred at the Seafood Restaurant, they were entitled to convict on Count 1 - subject to the point concerning Fung's "capacity as a public servant" which constitutes a different ground of appeal.

Was Fung an accomplice?

15. Mr. Griffiths's attack on Fung's evidence focussed on this point: The judge had ruled that Fung was, for the purposes of the trial, not an accomplice. This, Mr. Griffiths argues, is an error of law: The judge, he says, should either have held that Fung was an accomplice and directed the jury accordingly, or alternatively left the issue as to whether Fung was an accomplice or not to the jury to decide.

16. An accomplice is, as the judge correctly directed the jury (page 40 - N) a person who is a party to a crime or crimes with which the defendant is charged: there may be all sorts of reasons why an accomplice might lie and falsely incriminate others: for example, to minimise his own role. But here, Fung's evidence was that he was not, in even a remote sense, a party to the crime charged in Count 1. When the applicant offered him "a treat for tea", he refused, twice.

17. Mr. Griffiths says that on other evidence the jury might have concluded that Fung was in fact an accomplice, because they could have inferred from such other evidence that Fung was, at the Shatin Seafood Restaurant, soliciting a bribe from the applicant. This submission is based on evidence to this effect: Towards the end of October 1991 (nearly two months after the date in Count 1), after a Rural Committee meeting, Fung had asked Lau quietly if the applicant had left anything for him; and then, on 19 November 1991, when Lau gave Fung a lift in a taxi, Lau had given Fung $30,000 in cash: money which was subsequently found in Fung's house when he was arrested by the ICAC in December 1991. There was also some reference, emerging in the course of Fung's cross-examination, to the possibility of the applicant donating to Fung's Cheung Chau litigation found. Mr. Griffiths argues that, based on these various strands of evidence, and the fact that Fung was giving evidence under an immunity, the jury might well have concluded that, despite Fung's own testimony, he was in fact soliciting a bribe at the Seafood Restaurant in late August 1991.

18. In our judgment, the judge was perfectly correct in concluding that Fung was not an accomplice and no accomplice direction regarding his evidence was necessary. Indeed, we cannot help but comment that, having regard to the circumstances of the case, any such direction might well have been prejudicial to the defence. If Fung was an accomplice, then the only other participant to Fung's crime would have been the applicant. This was not a case where Fung had participated in an enterprise involving a large number of persons, and there might have been some incentive on his part to play down his own role and exaggerate the participation of others. The applicant's case was that the event as recounted by Fung simply did not take place, that he had made no offer of any packet or "treat for tea", or anything of the kind to Fung: that is, Fung had not participated in any crime. In these circumstances, for the judge to have suggested to the jury that Fung might have been soliciting a bribe from the applicant, or wore still to have told the jury as a matter of law that Fung was a participant to the crime charged in Count 1, would have been, in effect, to cut the ground of defence from under the applicant's feet. The jury might well have then asked themselves: "If Fung was a participant to the crime in Count 1, as the judge tells us, by soliciting a bribe, from whom was he soliciting it if not the accused?"

19. In any case, it seems to us that s22 of the Prevention of Bribery Ordinance is conclusive on this issue. It says:

"Notwithstanding any rule of law or practice to the contrary, no witness shall, in any proceedings for an offence under Part II, be regarded as an accomplice by reason only of .... any payment or delivery of any advantage by or on behalf of the person accused to him".

20. In the alternative, Mr. Griffiths suggests that a "Beck" direction (after the case of The Queen v. Beck 74 Cr. App. R. 221) should have been given: namely that Fung was a witness tainted by an improper motive, having every reason to implicate the applicant because there was evidence suggesting that Fung had solicited a bribe from the applicant. We would reject this argument as well, for the same reasons as we have given above.

21. Having reached this point, it is not necessary for us to consider Mr. Griffiths's suggestion that the background matters enumerated earlier were, if Fung were held to be an accomplice, incapable of corroborating his evidence.

Count 4

The judge began his summing-up on Count 4 by saying: "From Count 1.... I turn to Count....4: the handing by the defendant of a cheque for $50,000 to Mr. Lau in Mr. Lau's office which the Crown says was a pay-off for Mr. Fung's vote. I didn't say the "alleged" handing because [defence counsel's] cross-examination of Mr. Lau shows that the defendant accepts that he gave the cheque to Mr. Lau. The main issue therefore on Count....4 is what the cheque was for".

22. Again, it is not suggested by counsel that this was a misdirection, or a misstatement of the position at the trial.

23. The background to Count 4 was simply this: A day or two before the election, the applicant went to Lau's office at the Shatin Rural Committee's premises and asked Lau to try his best to get Fung to vote for him. Lau then testified that the applicant added: "If I succeed I will not be mean to you (in the plural)". The issue in the court below, as far as we can gauge in the absence of a transcript, was not whether the applicant had said words to the effect as alleged, but the context in which it was said: the applicant's case being that he was willing to contribute to the Cheung Chau litigation fund; there was also a suggestion that he wanted assistance from Fung in relation to some construction project in Shatin: the proposal of payment was not in the context of Lau trying to get Fung's vote for him.

24. As to what happened on 5 October 1991, the unchallenged evidence was that the applicant wrote out a cheque for $50,000, leaving the payee blank and gave it to Lau. Lau said in evidence that the applicant referred to the election in handing over the cheque but did not tell him what to do with the cheque: that is, he did not tell Lau to pay $30,000 to Fung; Lau said that he paid $30,000 to Fung on his own initiative. The judge then went on to direct the jury as follows:

"It is conceded, I think, by the defence that the proceeds of the cheque were intended for Mr. Fung because you will remember [counsel] saying at the end of his cross-examination of Mr. Fung that the defendant was intending to donate $50,000 to the Cheung Chau litigation fund. And Mr. Fung of course was the Chairman of the Cheung Chau Rural Committee. That shows, says the Crown, it is pretty obvious that the cheque was intended for Mr. Fung. The real question is what the cheque for Mr. Fung was intended for. Was the only reason why it was intended to go to Mr. Fung because it was a donation to the Cheung Chau litigation fund?"

25. It is not suggested by counsel that, putting the issue in that way, the judge had misdirected the jury.

Was Fung a participant in Count 4?

26. Fung's evidence, concerning Count 4, was to this effect: at the beginning of October 1991, Lau told him that since the applicant had won the election he would be giving Fung $30,000 for tea. Fung's response was that be did not want to get involved, to which Lau said: "If there is an occasion in Cheung Chau I will spend it for you. It is top secret". But Fung told Lau not to do that.

27. If this evidence had stood alone, to suggest that Fung was a participant to the Count 4 offence would have been absurd. Lau, however, said that sometime prior to the elections he met Fung and told Fung that if he voted for the applicant he (Lau) thought that the applicant would give them $20,000 to $30,000 for tea, and Fung's response was: it wasn't a question of money, but he hoped that there would be a donation if there was a function in Cheung Chau. This, Mr. Griffiths argues, is evidence that in a disguised form Fung was soliciting a bribe from the applicant.

28. It should be noted that the crime as charged in Count 4 was complete on 5 October 1991. Accordingly the fact that in November 1991 Lau had thrust $30,000 on Fung, when they were in a taxi together, is not relevant to the question whether on 5 October Fung was a willing participant to the crime in Count 4.

29. Count 4 was on the basis of an offer of the cheque to Lau, intending that at least part of it should be given to Fung, on account of Fung having voted for the applicant. There is no suggestion on the evidence that Lau was, on 5 October, acting in any representative capacity for Fung. In this regard the applicant's acquittal on Count 3 is significant. Count 3 was on the basis that the applicant intended that all or part of the proceeds of the cheque should go to Fung; Count 4 was on the basis that the cheque was for Lau to do as he pleased: the judge's summing (p60F-K) to this effect is unchallenged. To make the crime complete it was not necessary for Fung to have been a party to the transaction: the statutory prohibition in s5(a) of the Corrupt and Illegal Practices Ordinance is directed to giving money "to or for any voter .... on account of such voter having voted at an election". The consideration of this point is however subject to this caveat: it is Mr. Griffiths's case that the crime under s5(a) of the Corrupt and Illegal Practices Ordinance is not made out unless the payment was pursuant to an antecedent agreement. We will deal with this point later on. But, to revert to the point as to whether Fung was an accomplice, there was no evidence from Lau (or from anyone else) that after the conversation in which $20,000 to $30,000 for tea was mentioned, Fung had any further contact with Lau before the $50,000 cheque was offered by the applicant on 5 October 1991. In these circumstances the possibility of Fung having "participated" in the offence on 5 October 1991 was remote.

30. In our view the judge was right not to rule that Fung was an accomplice in respect of the offence in Count 4 and right also in not leaving that issue to the jury.

Corroboration of Lau's evidence

31. The main thrust of Mr. Griffiths argument is this: The judge, having invited the jury to treat Lau as an accomplice, misdirected the jury as to the evidence capable of corroborating Lau. The judge referred to three pieces of evidence:

Firstly, Fung's evidence regarding what took place at the Shatin Seafood Restaurant in late August 1991. The judge said : " If you are sure from the evidence of Mr. Fung that before the election the defendant had tried to buy his vote by offering him money at the Shatin Seafood Restaurant, then that is evidence from which you can infer that the payment after the election was to reward Mr. Fung for having voted for the defendant".

Secondly, there was the evidence of Wai to the effect that the defendant had admitted that he had given Fung something at the restaurant before the election: That was capable of supporting the Crown's case that the payment after the election was to reward Fung for having voted for the applicant.

Thirdly, there was the evidence of Wai about the applicant saying that if water needed to be used, he could afford that: if that was indeed what the defendant had said, meaning that he was prepared to buy votes, then that supported the Crown's case on Count 4 that the payment was indeed to reward Fung for having voted in favour of the applicant.

32. The weight of each piece of evidence was for the jury. Views could well differ as to the extent to which each of the three matters referred to above supported Lau's evidence on Count 4. We agree with Mr. Griffiths in so far as he suggests that none of the three pieces of evidence gave substantial support to Lau's evidence. Where we differ is that the evidence was incapable of corroborating Lau. As the English Court of Appeal said in John Hills [1988]86 Cr. App.R.26 at 31, in considering corroboration it is always important to consider what are the real issues in the case. In relation to Count 4 the real issue was the applicant's intent in handing the cheque for $50,000 over to Lau: was it, as the prosecution alleged, on account of Fung having voted favourably for the applicant? The offence, if it occurred, took place on 5 October 1991: evidence of the applicant's willingness to use money to procure votes prior to that date must clearly be relevant to that issue. Such evidence gave support to Lau's evidence. In our judgment, this ground of appeal fails.

The ingredients of the offence in Count 4

33. The applicant is charged under s5(a) of the Corrupt and Illegal Practices Ordinance, cap. 288 in Count 4. S5(a) states:

"Bribery

No person shall directly or indirectly by himself or by any other person on his behalf-
(a) give .... any money or valuable consideration to or for any voter on account of such voter having voted ..... at any election".

34. This is to be contrasted with s7, dealing with treating, which has the word "corruptly" before the word "give", so that the prohibition there is against corruptly giving or providing meals, drink, entertainment etc.

35. Mr. Griffiths argues that, having regard to the provenance of s5(a) - English electoral laws dating from the nineteenth century - the word "corruptly" should, in effect, be implied in s5(a) as well: particularly since s4, which lays down the penalty for sections 5 and 7 alike, comes under the general heading "Definition and punishment of corrupt practices at elections". From this Mr. Griffiths argues that, if one looked at English case law such as Borough of Brecon case [1871]2 O'M & A 43, one would see that the treating of voters after an election is not held to be "corrupt" and no offence is committed unless such treating was pursuant to an antecedent agreement; as no antecedent agreement to reward Fung has been proved, the applicant's conviction on Count 4 must be quashed.

36. In our judgment there is no merit in this point. The wording of s5(a) is unambiguous. To constitute the offence there must be proved (a) the act of giving money or value consideration "to or for any voter" and (b) the intent that it be "on account of such voter having voted or refrained from voting at any election". Obviously if the prosecution were able to show that the giving of money was pursuant to a prior agreement, then the intent would be the more easily established. But, on the plain wording of s5(a) this is not an ingredient of the offence.

37. We can readily see why there is a distinction between s5(a), prohibiting the giving of money or other valuable consideration, and s7, the treating of voters. Candidates at elections would often have helpers and volunteers, to whom the offer of drinks etc after an election would be a perfectly normal thing to do. Hence the word "corruptly" in s7, to ensure that the mere ac t of "treating", even on account of the voters having voted at an election, would not, without more, constitute an offence. The absence of the word "corruptly" in s5(a) demonstrates that the legislature views the position more strictly when it comes to the giving of money or other valuable consideration on account of a voter having voted at an election. There is no need, in our view, to look at the antecedent history of s5(a), as we were invited by counsel to do. Its meaning is crystal clear.

38. This ground of appeal fails.

Count 5

39. Again, the judge began his summing-up by saying:

"Well, members of the jury, I turn now to Counts 5 and 6, the handing by Mr. Ko of $100,000 in cash to CHEUNG Hon-chung at Mr. Ko's office. Again, I did not say the word 'alleged' handing because Mr. Cheng's cross-examination of Mr. Ko shows that the defendant accepts that he gave the money to Mr. Ko for Mr. Cheung. The main issue on Counts 5 and 6 again is why".

40. Ko testified to the effect that about a month or two before the elections, at a sauna house in Tsimshatsui, the applicant came up to him and told him that he was running in the elections. He wanted Ko to set up a meeting with Cheung, and added that he wanted Cheung to vote for him.

41. The three of them, Ko, Cheung and the applicant met at Ko's office the following day. Ko tried to persuade Cheung to vote for the applicant in the elections.

42. Ko's evidence was that there was a second meeting at the sauna with the applicant, when the applicant asked him to make another appointment to see Cheung. Ko told the applicant to make the appointment himself, and that, according to Ko, was when money was mentioned: Ko's evidence was that the applicant said: "He is not going to vote for me. How about giving him some money?" Ko's reaction was: "Don't involve me if it got anything to do with money". However, Ko admitted in cross-examination that the applicant had said something about him, the applicant, being prepared to make a donation to Cheung's election campaign. A meeting with Cheung was arranged: this was the "crucial" meeting in early September 1991 : 4 September, as charged in Count 5.

43. Cheung's evidence as to how the meeting came to be set up was that he had up a phone call from the applicant a little while previously. In that phone call the applicant offered to help him in his campaign.

44. As to the meeting itself, on about 4 September, approximately one week before the elections, this took place at Ko's office. Ko said that the applicant arrived with a packet of money and said that he wanted Ko's help to give it to Cheung but, thinking that the money was a bribe, Ko claimed he said "Don't get me involved. Take it back".

45. As to what happened when Cheung arrived, there was a variance between Ko's evidence and Cheung's evidence.

46. Ko's evidence was to the effect that when Cheung arrived he Ko told the applicant to say what he had to say to Cheung himself. And when the applicant said "No. You say it", Ko then said to Cheung: "Mr. Leung wants you to vote for him. He has some money over there", gesturing to the drawer in which the money was put. "If you vote for him" Ko added, "you can take the money away". Cheung refused the money. According to Ko, Cheung said that he and Ko were friends, and he would give the applicant his second preferential vote, at which point Ko turned to the applicant and said: "I told you he wouldn't take the money".

47. Cheung's version of the meeting was different. The purpose of the meeting according to Cheung was for the applicant to put his political platform to him. Ko was there because he and Ko were friends. According to Cheung, the applicant did indeed explain his election platform and they exchanged political views. The applicant, according to Cheung, said that he hoped Cheung would vote for him and Cheung said that he would get at least his second preferential vote. The applicant tried hard to persuade him to give him his first preferential vote and it was left on the basis that Cheung would consider that. There was, according to Cheung, no talk about money and the applicant had not said anything about making a donation to Cheung's campaign.

48. Cheung's evidence then went on to this effect: after the applicant had left Ko's office, Ko took a packet containing money from the drawer. Ko said it was money which had been left behind by the applicant and that the applicant had said that it was a donation to Cheung's election expenses; Ko did not say that the money was for Cheung to vote for him. Cheung refused to take the money. One of the reasons for refusing, he said, was because he had already raised $190,000 for his campaign, and was close to the limit of $200,000.

49. Arising from the above, three grounds of appeal have been argued on behalf of the applicant: (i) Cheung's testimony as to what was said by Ko concerning the packet of money from the drawer could not be used to implicate the applicant in the crime, and was only relevant in evaluating Ko's credibility as a witness; (ii) it was hearsay and legally inadmissible as evidence; and (iii) the judge misdirected the jury as regards corroboration of the accomplice Ko's evidence.

The hearsay point

50. Points (i) and (ii) above were, in effect, lumped to together in argument and were identified by Mr. Griffiths as the hearsay point.

51. The point is contained in grounds 6 and 6B of the amended grounds of appeal and is formulated as follows:

"6(a) The learned trial judge misdirected the jury on the evidential value and/or the purpose of the testimony of CHEUNG Hon-chung ...............concerning a conversation between him and KO Kim-ching which took place in the absence of the appellant. He directed the jury that they could treat the evidence of Cheung as providing a source of evidence implicating the appellant in a form of disguised corruption (making an offer to pay $100,000 towards Cheung's election expenses); (see summing-up at p74C-N);

(b) The learned judge should have directed that such evidence should have been used by the jury only to evaluate the credibility of Ko and not be relied upon as evidence of the truth of the facts stated.

6B In the alternative to ground 6, the trial judge erred in admitting the evidence of Cheung as regards a conversation he had with Ko on an occasion when the appellant was not present ...... the evidence of the conversation was hearsay and not within any exception to the rule against the admission of hearsay evidence. His directions to the jury on the significance of this evidence..... were consequently misdirections based as they were on inadmissible evidence."

52. The admissibility of evidence depends upon the purpose for which it is adduced. The main issue on Count 5 was why the $100,000, in cash, in the drawer in Ko's office, was offered to Cheung. At p71-T in the summing-up the judge said:

"That money was being offered, say the defence, as a legitimate donation to Mr. Cheung's own election expenses."

That was how the issue was put by the judge to the jury, and there is no suggestion that this was a misdirection.

53. We have not been invited to look at the depositions and do not know what Cheung had said concerning the offer of payment at the preliminary inquiry. However, when, at the trial, Cheung testified to the effect that Ko told him that the money left behind by the applicant was said by the applicant to be a donation to Cheung's election expenses, this would appear to be wholly consistent with the applicant's case. Cheung although called by the prosecution was, in effect, testifying as a witness for the defence.

54. It appears that the hearsay nature of Cheung's evidence did trouble the judge and, in the course of Cheung's testimony, Cheung was invited to step outside the court. The judge then raised his concern with defence counsel Mr. Cheng, QC, in these terms:

"COURT. My concern, Mr CHENG, is that I assume that
Mr. McMahon is about to ask Mr CHENG to give evidence about the conversation he had with Mr Ko on page 165 which I know, from what you told me at an earlier stage, was a passage, the admissibility you are going to dispute.

MR CHENG: Well, we have reflected further upon this, my
Lord.

COURT: Yes, and you have decided not to dispute it?

MR CHENG: No, essentially not. Your Lordship would
appreciate that we are in a way in a conundrum because it is wholly consistent with our instructions even though our instructions would be that Mr KO went beyond what he was asked to do. Your Lordship would appreciate that.

COURT: Yes?

MR CHENG: That is how we found ourselves, so on balance we
feel that we ought not to object.

COURT: In other words, although you have grounds for objecting
to the admissibility of this evidence, from a tactical point of view you want the evidence in?

MR CHENG: That is correct.

COURT: Good, okay."

55. When he came to cross-examine Cheung, defence counsel sought to concretise Cheung's favourable evidence. The cross-examination proceeded thus:

"Q. After defendant left, Ko told you defendant left $100,000 behind?

A. Yes.

Q. For your election expenses?

A. Yes.

Q. For that year's Legislative Council direct elections?

A. Yes.

Q. [Is it] correct you stood for direct elections, not Leung?

A. Yes.

Q. That direct election took place on 15 September 1991, three days after the functional constituency Regional Council election?

A. Yes.

Q. Ko didn't tell you that the money was for you to vote for Leung in the functional constituency Regional Council election?

A. Yes

................

Q. If [you had] accepted the $100,000 you would have declared it?

A. Yes."

At the trial, what Crown counsel submitted was, in effect, this: the jury were not bound to accept the applicant's explanation at face value. Assuming that the jury believed Cheung's version as to what happened in Ko's office, after the applicant had left, and rejected Ko's version that, in the applicant's presence, he had said to Cheung "Mr. Leung wants you to vote for him. He has some money over there..... If you vote for him you can take the money away", it does not mean that the jury must acquit: from all the other relevant evidence in the case, the jury was entitled to infer that the true intention behind the offer of $100,000 was on account of Cheung voting favourably for the applicant. It was in this context that the judge said to the jury (p72H-R):

"The Crown say that you can infer from the context in which the offer was made - immediately after a conversation between the defendant and Mr. Cheung in which the defendant had been trying hard to persuade Mr. Cheung to give a first preferential vote - the Crown ask you to infer that the real reason why the defendant was making a donation to Mr. Cheung's political campaign was because he thought that it would make Mr. Cheung more likely to vote favourably for him.

The Crown ask: if the money was intended to be a donation and no more, why pay it in cash? Why not by cheque? And why make a donation then? ask the Crown. The defendant had not made a donation to Mr. Cheung's campaign earlier in the year when Mr. Cheung had stood for election to the Regional Council".

56. It is noteworthy that, through the successive amendments of the grounds of appeal, the legal admissibility of the passage, now impugned as hearsay, was never raised until the second day of the hearing of the appeal when ground 6B was introduced for the first time. The attack until then was slightly different. As we understand the point in ground 6(a) of the grounds of appeal, it is, in effect, saying this: Cheung's testimony as to what took place in the absence of the applicant could provide a source of evidence supporting the defence case, but could not provide a source of evidence implicating the applicant in the crime charged in the form of disguised corruption. And, as stated in para 6(b), it could be used to impugned Ko's credit as a witness. This, as we see it, is rather different from the complaint in para 6B of the amended grounds of appeal, which is that the evidence should never have gone before the jury at all.

57. In our judgment, there is no validity in the points raised in grounds 6 and 6B. The evidence went before the jury at the invitation of the defence, in support of the defence case. Defence counsel underlined the evidence by his cross-examination. Once evidence was before the jury, it was for them to evaluate it. The jury were not bound to accept that the $100,000 were for Cheung's direct election expenses, nor Cheung's statement that if he had accepted the $100,000 he would have declared it in his returns.

58. The "hearsay" nature of the evidence was, in effect, a statement by Ko as regards the applicant's intent: a matter which went to the heart of the applicant's case, and was, if the evidence were accepted at face value, consistent with it. If the judge had excluded the evidence as technically inadmissible, the applicant would doubtless have complained that the judge had wrongly hobbled the defence: the applicant might then have been constrained to go into the witness box, instead of being able to rely upon a prosecution witness testifying in his defence.

59. This point becomes even clearer when one examines counsel's notes (put before us by consent) of the cross-examination of Ko:

"Q. Suggest, Mr. Leung arrived with $100,000. You knew that the money was to sponsor Mr. Cheung's election. The sponsorship (was) through you.

A. Yes, but the night before the meeting arranged, Mr. Leung said that $100,000 given to Mr. Cheung, did not say to sponsor Mr. Cheung. Mr. Leung said please help, please help. I said do not get me involved."

60. In our judgment, grounds 6 and 6B must fail.

Corroborating Ko's evidence

61. Having told the jury that Ko was an accomplice, the judge directed them that there was other evidence which, if they accepted it, was capable of corroborating Ko's evidence as to whether the money was really offered to buy Cheung's vote. There were five things which he then set out as follows:

"First, there is the evidence of Mr Cheung that Mr Ko offered him the money, admittedly after the defendant had left, but nevertheless shortly after the defendant had pressed him hard for his vote. The Crown invite you to infer, from the fact that the money was offered to him soon after that, that the money related to an attempt to buy Mr Cheung's vote.

Secondly, there is the evidence of Mr Cheung that the defendant had not made a donation to his election expenses the previous March when Mr Cheung stood as a candidate for the election to the Regional Council, which, you have heard, was the first time in Hong Kong that donations to election expenses were permitted.

Thirdly, there is the evidence of Mr Cheung that he had already raised $190,000. What kind of donation is it, asks Mr McMahon, where the donation is being made by a person who has not even inquired how much the candidate is still permitted to accept.?

Fourthly, there is the undisputed evidence that the offer was made in cash and not by cheque. Not the normal way, you may think, a large legitimate political donation is to be made.

And, fifthly, there is the evidence of Mr Wai, which I have already reminded you of, about the defendant having said that if water needed to be used, he could afford to do that. If you are sure that is true, that is evidence capable of supporting the Crown's case that the offer to Mr Cheung was indeed an offer to buy his vote."

62. The direction on corroboration must be viewed against the general background. The applicant, as a candidate himself, must have been aware that the Corrupt and Illegal Practices Ordinance strictly governed donations made to Cheung. Section 29(2)(b) required a candidate to make a return containing a statement of all the donations, vouched (except in the case of donation under $500) by copies of receipts issued to every person from whom those donations were received.

63. By the time the offer of $100,000 was made to Cheung, the election was imminent. The applicant must have known that Cheung was limited to accepting $200,000 in donations, and yet here he was offering half of the total which Cheung was permitted to receive, at a time very close to the elections. Moreover, there is no suggestion that Cheung and the applicant were political allies. Further, knowing that all genuine donations must be strictly vouched for by the candidate in his return, here was the applicant offering cash. Plainly, these are circumstances which the jury was entitled to take into account, in considering whether Ko's evidence that the money was really offered to buy Cheung's vote was to be believed.

64. In our judgment items one, three and four were capable of corroborating Ko's evidence. Each of them, standing alone, may not be very strong. But as regards, the second item, the fact of the matter is that Cheung had stood unopposed in the Regional Council elections in March. The expenses of an unopposed Regional Council candidate are not comparable with those of an opposed Legislative Council candidate. Failure to make a donation in the former circumstances may be no indication of whether a donation in the latter circumstances are likely. The judge's failure to point this out did, in our judgment, amount to a misdirection. As to the third item, Cheung's evidence was that he had already raised $190,000 by early September and was therefore near his legal limit: whilst there was no evidence that the applicant knew this, common-sense would have told the applicant that a candidate, coming to the end of his campaign for election, was unlikely to be able to accept a sum as large as $100,000 by way of donation: he would at least have been put on inquiry: but the applicant never asked. It therefore seems to us that the rhetorical question asked by Crown counsel: what kind of donation is it, where the donation is being made by a person who has not even inquired how much the candidate is still permitted to accept? was a perfectly legitimate one.

65. As to the fifth item, namely, the evidence from Wai to the effect that the applicant had said that if water were needed to be used, he could afford to do that. This, in fact, was said at the meeting with LAU Wong-fat which took place on or about 6 or 7 September 1991, after the date charged in Count 5. Mr. Griffiths QC makes this point: the words attributed to the applicant by Wai suggest that, up to that point, "water" had not been used.

66. In the context of a conversation of the kind related by Wai, which LAU Wong-fat denied, one would not expect the parties to have been speaking with absolute precision. Nevertheless, it is certainly open to the construction suggested by Mr. Griffiths, and if that were the position then plainly that conversation, taking place about two days after the meeting in Count 5, was not capable of corroborating Ko's version of events in Count 5. It was unfortunate that the judge did not point this out to the jury. This failure in our judgment amounted to a material misdirection. The jury could have concluded that if that was the applicant's state of mind on 6 or 7 September (his willingness to buy votes) it was likely to have existed before that date, but this is by no means necessarily so.

67. As regards the items of evidence which remain unimpeached, it would have been better if the judge had directed the jury along the lines indicated by the Lord Chief Justice in John Hills [1988] 86 Cr.App.R. 26 at 31, namely, that none of the items of evidence on their own provided much support, but the combined effect of the items would corroborate Ko's evidence.

68. This point however is worth stressing. Hong Kong jurors are, generally-speaking, persons of high educational background. The bulk of jurors on the jury list are persons of Chinese race and are therefore, by definition, bilingual since legal proceedings in the High Court are conducted in English. If expatriates, and other persons of non-Chinese race, serve on the jury, they are liable generally-speaking to be persons in high levels of management. When a judge tells the jury, "you should look at other pieces of evidence to see if what the accomplice says fits", common-sense suggests that they would look at the evidence globally. But this cannot be taken for granted.

The proviso to s83(1) Criminal Procedure Ordinance

69. The admissible evidence, cumulatively, bearing upon Count 5 seems to us to be overwhelming, whether it be Ko or Cheung who was telling the truth.

70. We bear in mind the words of Lord Reid in DPP v. Kilbourne [1973] AC 729 at 750:

"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."

71. Over the course of four days of argument in this court the judge's summing-up has been subjected to a microscopic examination. The judge did, in putting the five items of evidence to the jury as corroboration of Ko's evidence, misdirect them in the way we have indicated. Having regard to the evidence which remains unimpeached, we are of the view that, properly directed, the jury must inevitably have convicted the applicant on Count 5. We would accordingly apply the proviso to s83(1) of the Criminal Procedure Ordinance, and whilst acceding to the application for leave on this ground dismiss the appeal on Count 5 as there plainly has been no miscarriage of justice.

72. We should, for the sake of completeness, mention a further point. In referring to Ko and the other witnesses who had been given immunity by the Crown, the judge said (p40B-D):

"However, that immunity applies only if the evidence they have given at this trial is true. It was in their interests, therefore, to give evidence which they think the prosecution would think was true. This is a factor which you ought to bear in mind".

So far, so good. But the judge added:

"But bear in mind also that it was in their interests, not merely to give evidence which the prosecution thought was true, but also to give evidence which was in fact true, because in that way their immunity couldn't be removed from them whatever the prosecution thought".

73. That addendum was unnecessary, and detracted from the clarity of his earlier direction. The danger of witnesses giving evidence under immunity is, of course, the fact that such witnesses are liable to stick to the version of their story previously given to the police, whether it be true or false, for that version was the basis in effect on which their immunity was given in the first place.

74. Plainly, this error by the judge was immaterial and has not in fact been put forward by Mr. Griffiths as a separate ground of appeal. Rightly so.

Were Fung and Cheung "public servants"?

75. The applicant was convicted on Counts 1 and 5 of offering an advantage to a public servant, contrary to s4(1)(a) of the Prevention of Bribery Ordinance. In relation to Count 1, it was to Fung, and in relation to Count 5, to Cheung. They were both Regional Councillors at the time and, for the purposes of the Ordinance, public servants.

76. The averment in Count 1 is that the advantage was offered to Fung as an inducement to him to perform an act in his capacity as a public servant, namely voting favourably for the applicant. In Count 5, the averment is that the advantage was offered to Cheung as an inducement to the same effect.

77. Mr. Griffiths argues that even if all the other ingredients in the counts were proved, the applicant would still not be guilty because the act to be performed, namely voting at the elections in the applicant's favour, was not an act in Fung's or Cheung's capacity as a Regional Councillor. In essence, the argument boils down to this:

(i) The right to vote, and the decision as to whether to vote at all, or for which candidate, is a right personal to the member. It is not part of the duties of a Regional Councillor. The right to vote is derived from the statute governing elections and not from the Regional Council Ordinance, Cap. 385.

(ii) To exercise his vote in the Regional Council functional constituency, a person had to be not only a member of the Regional Council - and therefore a public servant - but also a registered elector pursuant to s7 of the Electoral Provisions Ordinance. If he chose not to be registered as an elector, the fact that he is a Regional Councillor is wholly irrelevant.

(iii) Every "public servant" is necessarily subject, when acting in that capacity, to the directions and orders of his superior, at whose head stands the Governor, the Governor could not direct or order a Regional Councillor whether or how to exercise his vote.

(iv) The relevant statute for the prevention of bribery at elections is the Corrupt and Illegal Practices Ordinance. There is no reason to strain the construction of s4(1)(a) of the Prevention of Bribery Ordinance to catch within its net an activity such as voting at elections. If the matter were equivocal, it should be resolved in favour of the subject.

(v) It follows that in casting a vote as a Regional Councillor in the Regional Council functional constituency, neither Fung nor Cheung was performing an act in his capacity as a public servant.

78. The argument boils down to one point: what do the words "in his capacity as a public servant" mean in s4(1)(a) of the Prevention of Bribery Ordinance?

79. If one viewed the matter narrowly, by reference to what, strictly, are the legal duties of a Regional Councillor under the Regional Council Ordinance, then Mr. Griffiths's argument would be correct. Is it right, then, to equate "capacity" in s4(1)(a) with "duty"?

80. At the trial, the way Keith J. directed the jury was this: to convict, the jury had to be satisfied that the money would not have been offered to the Regional Councillor concerned if he had not been a member of the Regional Council and regarded for that reason by the voter concerned and by the applicant as entitled to vote in the elections.

81. This was, in effect, an application of the test laid down by Leonard J. in KONG Kam-piu (1973) HKLR 120 and approved by the Privy Council in A.G. v. IP Chiu (1980) AC 663: "Would that gift have been given..... if the person in question were not the kind of public servant he in fact was? If the answer is "of course not" ...... then the gift is given in his capacity as a public servant and is a corrupt one".

82. As can be seen, this interpretation of the words "in his capacity as a public servant" casts the net wider than simply "within his duty as a public servant". Ip Chiu was an appeal by the Attorney General to the Privy Council against the judgment of the Court of Appeal, which had allowed an appeal by the respondent from his conviction by a magistrate of accepting an advantage, contrary to s4(2)(a) of the Prevention of Bribery Ordinance. In Ip Chiu the Court of Appeal had erred because it in effect discarded Leonard J's test. In dealing with this point Lord Edmund-Davies said at 671:

"It has to be said respectfully that the Court of Appeal never really dealt with Leonard J's test. Indeed, however unwittingly, they in effect discarded it, for more than once they equated a public servant's "capacity" with his "duty" and thus considerably narrowed the former word, which is the only one contained in s4(2)(a). Accordingly, the observations of Lord Simonds in Gill v. The King (1948) 35 AIR (Privy Council) 128 at 132, to which their Lordships' attention was drawn, regarding "any act done or purporting to be done in the execution of his duty as a servant of the Crown" (wording employed in s270 of the Government of India Act 1935) have no bearing on the interpretation of s4(2)(a). And counsel for the present respondent intimated that, while maintaining that the Court of Appeal were right to quash the convictions, he accepted as correct the test propounded by Leonard J., and accordingly found himself unable to support the approach adopted by the Court of Appeal.

Nor can their Lordships, for its acceptance would render s4 largely in- effective. Indeed that unfortunate tendency has already manifested itself in such later decisions as Wan Yau-wai v. The Queen (unreported) January 12, 1979, and Sin Tak-sang v. The Queen (unreported) July 16, 1979 where, in the light of the observations of the Court of Appeal in the instant case, convictions of s4 charges were quashed on appeal, notwithstanding that the facts in each pointed strongly to guilt".

83. In the passage in Ip Chiu quoted above, the Privy Council drew attention to the words in an old Indian statute dealing with acts done by a Crown servant in the execution of his duty as such servant. This is to be contrasted with the wider words in a Ceylon statute, dealt with in Attorney General of Ceylon v. De Livera (1963) AC 103. There the relevant statute, s14 of the Bribery Act 1954 of Ceylon provided:

"A person -(a) who offers any gratification ..... to a member of ..... the House of Representatives, as an inducement or a reward for such ...... member's doing or forbearing to do any act ..... in his capacity as such member ...... shall be guilty of an offence....." punishable as prescribed.

84. A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a gratification to the member 'for his doing an act in his capacity as such member', but the conviction by the magistrate was overturned by the Supreme Court of Ceylon. The Attorney General's appeal to the Privy Council was allowed.

85. Lord Radcliffe giving the judgment of the Privy Council said at p122:

"..... their Lordships are now in a position to address themselves to the facts of this appeal. They approach them on the basis ..... that in considering whether the inducement offered by the .....respondent to ...... the member was offered to induce him to act in his capacity as such member, the inquiry is not confined to ascertaining whether he was to do something specifically assigned as a member's function in the Constitu tion Order or something which was actually a proceeding on the floor of or in the precincts of the House. They recognise that there are many things which a member may be invited to do because he is a member and enjoys as such a status and prestige which supply the motive of the invitation but in doing which he would not be acting in his capacity as a member. But, with this recognition made, they are of the opinion that the circumstances of any particular case may show that in the light of prevailing practices or conventions observed by members of the House some act for which an inducement has been offered is sufficiently closely bound up with and analogous to a proceeding in the House as to be properly described as done by a member in his capacity as such".

86. In this case, the Regional Council, consisting of only 36 members, was privileged to be recognised as a functional constituency for the purposes of the 1991 elections. Collectively, the members had, perhaps not the legal duty, but certainly the responsibility of returning one of themselves to serve in the Legislative Council. But for the fact that Fung and Cheung were members of the Regional Council they would not have been voting in that functional constituency. There is no question here of their being asked to perform an act because of "status" or "prestige". They were performing an act which only a Regional Councillor could do in that functional constituency: to cast a favourable vote for the applicant in the elections. The legislature, for good reasons of public policy, has extended the definition of "public servants" to cover Regional Councillors. It is difficult to see how. in casting their votes in the Regional Council functional constituency, Fung and Cheung were acting otherwise than as Regional Councillors and therefore acting in their capacities as public servants.

87. As Mr. McMahon correctly points out, the judge's test requires the prosecution to prove that the applicant regarded the voter concerned as being entitled to vote in the elections. This leans in favour of the applicant. It is not a question of the prosecution scratching around the statute-book, or such rules as govern the activities of Regional Councillors, to see whether, objectively, they had some sort of "duty" to perform. The Leonard J test, applied by the judge, looks at "capacity" from the angle of the offeror. would the offer have been made if the person in question were not the kind of public servant he in fact was?

88. In our judgment this is plainly the right test and this ground of appeal fails as well.

Conclusion

89. The judge had a formidable task before him. The indictment consisted of eight counts, of which the first six were "paired". The trial lasted one month. The case against the applicant was very strong. He was perfectly entitled, as he chose, not to give evidence. But that left the prosecution's case unanswered save by such arguments as defence counsel was able to urge in the hope of casting doubt upon that case. There were misdirections. Essentially, however, the issues were fairly laid before the jury. On each of the counts on which the jury convicted, any other result would have been surprising to say the least. The misdirections did not result in any miscarriage of justice.

90. The application for leave to appeal has, in effect, been treated as the hearing of the appeal, which we dismiss.

Sentence

91. We now deal with the application for leave to appeal against sentence. The judge imposed sentences of three years' imprisonment on Counts 1 and 5 and nine months on Count 4, all to run concurrently, making a total of three years. The applicant now seeks leave to appeal against those sentences. There is no doubt that the applicant has suffered greatly in his health, his business, his family life and his personal finances as a result of the convictions. His counsel Mr. Griffiths has spoken eloquently on his behalf. Mr. Griffiths also submits that the judge fell into error because, having regard to the maximum sentence under the Corrupt and Legal Practices Ordinance, the legislature has in effect put a ceiling on sentences for electoral offences. However, regard must be had to the statute under which the sentences on Counts 1 and 5 were imposed. Mr. Griffiths also argues that it was by accident that the electors in the Regional Council functional constituency were public servants and this fact he says does not go to the culpability of the act of bribing. He argues that if the offences had occurred in some other functional constituency where the electors were not public servants then the act of bribing would not have attracted the punishment under s4(1)(a) of the Prevention of Bribery Ordinance.

92. The fact is that the Regional Council was a functional constituency and, moreover, a very small one, consisting of only 36 members. It was the more important for that reason that the integrity of each elector should not in any way be tested by offers of bribes.

93. Mr. Griffiths also submits that since last June the applicant's business has failed. He has been disgraced in his own profession and his finances are in ruin. The implications however of these factors must have been fully apparent to the trial judge. The judge took quite rightly a serious view of the offences and he has also taken fully into account the personal circumstances of the applicant. In our judgment the judge did not err in principle nor did he impose sentences which were manifestly excessive. For these reasons the application for leave to appeal against sentence must be refused.