SECRETARY FOR JUSTICE v. TAM HEUNG MAN

HCMA 891/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 891 OF 2011

(ON APPEAL FROM ESCC 4581/2010)

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J U D G M E N T

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1. The Respondent was a candidate in the 2008 Legislative Council Elections in the accountancy functional constituency. She was charged with offering an advantage as an inducement to vote for her under Section 11(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance Cap 554 [“ECICO”] in respect of a tea gathering on 5 September 2008. After trial, she was acquitted by the magistrate hearing the case. The prosecution appeals by way of case-stated under Section 105 of the Magistrates Ordinance against such acquittal.

2. The background facts are not in dispute.  They are mostly set out in the Admitted Facts put before the magistrate under Section 65C of the Criminal Procedures Ordinance.  In addition, at para 6 of the Case Stated, the magistrate referred to the recording of the speech of Mrs Anson Chan and the Respondent at the gathering of 5 September 2008. The magistrate also referred to the evidence of the witnesses at para 7 of the Case Stated.

3. I annex the Admitted Facts to this judgment.

4. In a nutshell, the Respondent as the then incumbent legislative councilor for the accountancy functional constituency had been organizing tea-gatherings for accountants in which CPD talks would be provided free of charge.  Attending such talks would earn CPD points for accountants in the fulfillment of the requirement of the Hong Kong Institute of Certified Public Accountants for continuing professional development.  There were such gatherings on 25 July and 29 August 2008.  A third gathering was held by the Respondent on 5 September 2008, two days before the relevant election.  As advertised beforehand, on 5 September 2008, before the talk by the guest speakers on the CPD topic, speeches were made at the tea-gathering by Mrs Anson Chan and the Respondent.  For present purposes, it suffices to characterize such speeches as promotion of the Respondent as a candidate in the election.

5. Because the CPD talk was provided by the Respondent free of charge, the prosecution contended (and the magistrate accepted) that an advantage was offered to the audience who (or at least many of them) were electors.  Having regard to the promotion speeches at the first part of the tea-gathering, the prosecution contended that the advantage was offered as inducement to the electors to vote for the Respondent.  The magistrate did not agree.  He found that the Respondent only intended to exploit the opportunity of the tea-gathering with a CPD talk (which would attract more people to attend) to promote herself as a candidate.  He found she did not intend to offer the talk as an inducement to the electors to vote for her.  She was therefore acquitted. 

6. In essence, the magistrate drew a distinction between inducement to vote for a candidate and inducement to attend an electioneering activity.  As explained below, I think this is the key issue in the present appeal.  In the Case Stated, the magistrate said the following at paras 10.12 and 10.13,

“10.12 不過，身為陪審員，本席認為，答辯人的意圖，並非以免費講座或獲得1.5專業進修學分的機會，來誘使參加者投票給她。從客觀角度，本席亦不認為1.5專業進修學分或講座提供的知識，能對會計界的選民構成投票給答辯人的誘因。本席明白，上訴人無須證明，涉案的「利益」左右了選民的投票取向，但本席認為，裁斷答辯人的意圖時，法庭有權考慮，涉案的「利益」的性質和價值。多年前，本席曾在街頭收到某候選人派發的小包紙巾，包裝印有該候選人的選舉宣傳字句，他觸犯了第11(1)(a)條嗎？一包紙巾，無疑也是「饋贈」(gift)，但撫心自問，心智正常並理性的選民，會否因一包紙巾，便決定投票給該候選人？同樣道理，有哪位候選人，會利用一包紙巾，來誘使選民投他一票？單是這樣猜度，也未免侮辱了港人的政治智慧吧!

10.13  本席對答辯人或涉案講座的參加者沒有存半點不敬，但本席認為，賺取1.5專業進修學分的機會或關於「收購合併」的知識，其性質和價值與一包作為宣傳品的紙巾無異。本席相信，答辯人的真正意圖，只是因利成便。她知道，每月的茶聚能吸引一定數目的參加者，便趁此機會，加插陳太的講話時段，因為純粹安排一個選舉大會，可能吸引力不大而出席率不高。這主要是答辯人不智和考慮不周。最理想的做法，當然是在講座中對選舉隻字不提（包括工作人員派發「出席確認書」時的拉票說話）。這也許是答辯人所指，法例引致的荒謬情況。但現實是，法例並不容許太進取的選舉宣傳。說到底，本席認為，答辯人並沒有意圖，藉提供免費講座予會計界選民，作為在選舉中投票給投給她的誘因。這是本席憑常識作出關於事實的裁斷。”

7. Four questions (grouped under two heads) were raised in the Case Stated at the request of the prosecution,

(a)  In determining whether the advantage was offered as the requisite inducement, was the magistrate wrong to consider the character and value of the advantage from the point of view of the electors apart from considering the character of the advantage from the point of view of the candidate who offered the advantage?

(b)  In such determination, having found that the Respondent had offered an advantage (by way of provision of service), whether the magistrate was wrong to find that the Respondent did not have the intention to offer the same as inducement to vote for her?

(c)  Did the magistrate come to a perverse conclusion which was against the evidence as properly considered and assessed?

(d)  Did the magistrate give proper consideration to the evidence and did he take account of any irrelevant consideration?

8. The Respondent also applied for appeal by way of case-stated in respect of the magistrate’s decision against her on her challenge on the constitutionality of Section 11.  The prosecution contended that there is no jurisdiction to entertain such an appeal because the Respondent was acquitted by the magistrate.  Thus three further questions were certified in the Case Stated,

(a)  Did the magistrate err in permitting the Respondent to appeal against the determination on constitutionality despite her acquittal?

(b)  Did the magistrate err in holding that “any other service” included ‘public service”?

(c)  Did the magistrate err in holding that sections 6 and 11 of ECICO do not contravene Article 26 of the Basic Law?

The appeal against acquittal: the finding on inducement

9. Section 11(1)(a) of ECICO provides,

“A person engages in corrupt conduct at an election if the person, without reasonable excuse, offers an advantage to another person as an inducement to vote at the election for a particular candidate or particular candidates.”

10. Section 6 of ECICO provides that a person engages in corrupt conduct at an election commits an offence.

11. That offence can be analysed by reference to the following elements,

(a)  The offering of an advantage to another person;

(b)  As an inducement to vote for a particular candidate;

(c)  Without reasonable excuse.

12. I shall come back to the first and third elements in the discussion of the constitutional challenge.  At this stage, I shall focus on the second element: the inducement.  It is not enough for an advantage to be offered.  It has to be offered as an inducement.  And an inducement to do something else is not enough: it has to be an inducement to vote for a particular candidate.

13. Reading paras 10.12 and 10.13 of the Case Stated with this analysis in mind, the critical question in this case is whether the distinction drawn by the magistrate was a sound one as a matter of law.

14. The four questions formulated in the Case Stated in respect of the finding of inducement and the acquittal do not address this question sufficiently.  Be that as it may, this court has directed parties to this critical issue at the hearing of the appeal.  As far as I can see, there is nothing in Section 115 of the Magistrates Ordinance to prevent the court from addressing this issue which, in my view, is necessary for the just disposal of the appeal.  Neither has any party submitted otherwise.  If necessary, this court can send the Case back to the magistrate for amendment of the questions under Section 109 of the Magistrates Ordinance.  However, in the present case, given the absence of objection from the parties, it is not necessary for such course to be taken.

15. Mr Pang on behalf of the prosecution submitted that as a matter of law there is an inducement to vote for a candidate when the promotion of a candidate tied in with an advantage being offered.  Thus, on the facts of the present case, because the advantage was offered on an occasion when the candidacy of the Respondent was promoted, the requisite inducement was established.  Mr Pang submitted that the law does not permit service to be provided to electors at the same time when a candidate is canvassing for his or her election.  The two should be kept separate.  It follows, counsel contended, that the distinction drawn by the magistrate is not a valid one because the purpose of attracting electors (by the offer of advantage) to hear the speeches of Mrs Chan and the Respondent was to persuade them to vote for the latter.  That was the inducement required under Section 11(1).

16. On the other hand, Mr Lee SC submitted that the distinction is a sound one.  Counsel said the conclusion as to the absence of the requisite inducement is a finding of fact and the magistrate was entitled to make such finding on the evidence.  This court should not intervene unless the conclusion can be said to be perverse.  It is also submitted that whether an irresistible inference as to the intention to induce the electors is to be drawn must depend on the circumstances and the manner in which the advantage was offered, the time when it was offered and the nature of the advantage (see Schofield’s Election Law Vol 1 para 13-011).

17. At para 10.12, the magistrate explained why on the facts of the present case he could not come to a finding that the requisite inducement was present.  Referring to the case of HKSAR v Chan Tak Wai [2010] 4 HKLRD 182, he accepted that the prosecution did not need to show that the advantage did actually affect the votes of the electors.  However, he was of the view that in determining the intention of the Respondent the court could take into account the nature and value of the advantage.  He then gave an example of a packet of tissue paper and said at para 10.13 that the advantage offered in the present case was similar.  He did not believe it could affect the electors and the Respondent did not consider it to have such effect.

18. With reference to Bribery and Corruption Law in Hong Kong by Ian McWalters, 2^nd Edn p 223, Mr Lee submitted that the magistrate was entitled to take into account the insignificance of the advantage in assessing whether it was offered as inducement to vote.  The learned author also cited an Australian case where this approach was applied in the context of electoral bribery: Woodward v Maltby [1959] VR 794. 

19. I agree that the magistrate was correct in having regard to the value of the advantage in deciding whether it was offered as inducement to vote for the Respondent.  But this does not fully resolve the key issue: whether the distinction between inducement to attend the occasion (which the magistrate found to be established) and inducement to vote (which he found to be absent).

20. Though I can see the force of Mr Pang’s contention, his formulation of the principle of law is too wide.  This is apparent from Section 12(5) of ECICO.  That sub-section excludes the service of non-alcoholic drinks at election meeting (which is defined as meeting held to promote or prejudice the election of a candidate) from the scope of corrupt conduct.  Though the exclusion is stipulated as exclusion from the scope of an offence under Section 12(1), I do not believe the legislature could have intended that the same activity would still constitute corrupt conduct under Section 11(1).  Yet that would be the result if Mr Pang were correct because the soft-drink can be an advantage.

21. Likewise, if a candidate arranges for transportation to take some electors to an election meeting and to carry them back to their homes, that could also be an advantage and it would also be caught under Mr Pang’s test.  Another example is the packet of tissue paper printed with election advertisement for a candidate.  Mr Pang submitted that though the value of the packet is negligible, a candidate distributing such a packet would be guilty of corrupt conduct by virtue of Section 11(1).  I do not believe this to be the intention of the legislature.

22. Though the proximity in time and place of an offer of advantage and an activity to promote a candidate is highly relevant to the assessment of whether the advantage was offered as an inducement to vote for that candidate, it is not conclusive and other factors needed to be taken into account.  The Australian case of Woodward v Maltby [1959] VR 794 provides a very good illustration of the proper approach.  In that case, a candidate distributed books of matches (each containing about twenty matches) to electors.  Messages were printed on each book of matches promoting his election.  He was duly elected.  The result was challenged by his opponent by an election petition alleging bribery and treating in terms of the distribution of these books of matches.  For present purposes, we can focus on the bribery charge under Section 241 of the Constitution Act Amendment Act 1956 of Victoria.  The wordings of that section are not the same as our Section 11(1), but it also has an element of inducement, see p 798. 

23. The court found the candidate did not have the requisite intent to induce and dismissed the petition.  At p 798, Smith J said the following regarding the books of matches as election advertising material,

“Whenever [articles bearing election advertisement] are given out there is presumably an intention to induce electors to vote or refrain from voting by means of the effect produced on their minds by the message written on the paper or parchment. Such thing, however, may be given with an intention of influencing votes by another mechanism. They may be given with an intention of influencing vote of the donee because it is known or believed that he desires and values the material on which the message is written. The section, I think, can hardly be construed as making the distribution of advertising material amount to bribery where there is no intention to influence votes except by the words used.”

Further down that page,

“Before the section should be held to apply here it should be shown that there was an intention to induce voting for the candidate, or to induce approval or gratitude towards the candidate and thereby to influence electors to vote for him or to refrain from voting against him, and an intention to produce those results by means of the gift as distinct from the advertisement on it.” (my emphasis)

24. There the learned judge drew a distinction between an intention to influence by a gift of the material or article on which the advertisement was printed and an intention to influence by the message embodied in the advertisement itself.  The latter does not necessarily entail the former and a candidate only harbouring the latter intent would not be guilty of bribery.

25. On the facts of the case, the court had regard to the small value of the matches and concluded it was not satisfied that the candidate had the requisite intent to induce.  At p 799, Smith J said,

“Ordinarily, if an article of value with an election message printed on it were given, a candidate who said that he had not applied his mind to the idea that the value of the gift might influence votes would find it difficult to persuade any court that he was accurately describing the state of his mind at the relevant time. In the present case, however, such evidence ceases to be incredible by reason of the fact that the articles given are of extremely small value. In such circumstances, it is quite possible, although it may at first sight seem unlikely, that a candidate will fail to direct his mind to the possible feelings of approval or gratitude that may arise from the making of the small gifts. It becomes credible that his mind happened to be directed only to the effect of the message and to the fact that the particular vehicle would be of such a nature as to cause the message to be retained and read on a number of occasions and perhaps shown to other people.”

26. We are not dealing with election advertisement printed on books of matches.  However, the speeches of Mrs Chan and the Respondent are, in substance, a form of election advertisement.  The tea-gathering of 5 September 2008 was, like the books of matches, the medium by which the messages in these speeches were put across to the electors.  The crucial issue is: did the Respondent intend to influence the electors by the messages or did she intend to influence them by the tea-gathering (including in it an advantage in the form of the free CPD talk)?  Of course, the Respondent could have intended both.  But the magistrate found that her intention to be the former but not the latter.  Like Smith J, the magistrate took the view that due to the relative small value of the CPD talk, it was possible that the Respondent only intended to make the medium more attractive (by the CPD talk) so that more people would come to hear the election speeches without the further corrupt intent that they would be influenced in their votes by the CPD talk itself.

27. In my judgment, the magistrate did not err in law in drawing this distinction.  The conclusion that the Respondent did exploit the CPD talk as an inducement to the electors to attend the tea-gathering (and to hear the speeches of Mrs Chan and herself) does not necessarily mean that she intended the CPD talk to be an inducement to vote for her.

28. Coming to the arguments advanced by Mr Pang in challenging the finding of the magistrate, counsel submitted that the magistrate was wrong to have regard to the value of the CPD talk from the perspective of the electors.  He referred to what the magistrate said at para 10.12 and contended that the magistrate had misplaced the focus on the effect of the acts of the Respondent as opposed to her conduct.  Counsel said for the purpose of assessing the requisite mens rea it is sufficient to consider the conduct from the point of view of the Respondent.

29. I agree with counsel that primarily one should focus on the state of mind of the Respondent.  In Bribery and Corruption Law in Hong Kong, the learned author said the following at p 271 with regard to the inducement element in similar offences,

“It must always be remembered that it is the state of mind of the accused that is relevant. So that, for example, on an offering charge a gift will be ‘a reward’ where it is made by offeror who intends it as a reward. Likewise for inducement and it is no defence that what the offeror intends as an inducement may not be such as to constitute an inducement to the offeree.”

30. Further, it is not necessary for the prosecution to prove that the advantage offered was the only inducement or that the inducement had actually affected how the electors cast their votes, see HKSAR v Chan Tak Wai [2010] 4 HKLRD 182 at para 17. The magistrate actually reminded himself of this authority at para 10.12 of the Case Stated.

31. Reading the relevant paragraphs in the Case Stated as a whole, I do not think the magistrate fell into the error of misplacing the focus on the effect of the inducement on the electors.  Admittedly, he did refer to how a reasonable elector would react to the CPD talk at paras 10.12 and 10.13.  But it is also clear that he did so only as a subsidiary consideration in assessing the intention of the Respondent which remained as his primary focus.

32. It is also clear that in those paragraphs the magistrate was dealing with the inducement element.  I have already explained why I agreed with Mr Lee that in such context the value of the advantage is relevant.

33. Mr Pang also submitted that the finding of the magistrate is perverse in the sense that it is a finding which no reasonable magistrate, applying his mind properly to the evidence, can make.  Counsel’s submission in this regard is based on his interpretation of the element of inducement in Section 11(1) which, for reasons already canvassed, I do not share.

34. It may be said that the finding of the magistrate was generous towards the Respondent.  However, given that we are dealing with electors coming from the accountancy profession and there is no evidence as to the commercial value of such CPD talk, though I myself would not draw an analogy between a packet of tissue and the CPD talk, I do not think this court can characterize his finding as a perverse one.  As held by the Court of Final Appeal in Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466, in an appeal by way of Case Stated, this court’s power of review is limited to error of law.  This court would not intervene with a finding of fact unless the only reasonable conclusion open to the magistrate was that the advantage was offered as inducement to vote for the Respondent.  I do not find this to be the case.  On the evidence, it is open to the magistrate to reach conclusion on the intention of the Respondent as Smith J did in respect of the successful respondent in Woodward v Maltby.

35. Mr Pang submitted that the interpretation of Section 11(1) in the manner as I did in the above analysis would create loopholes for exploitation.  I do not agree.  In most of the cases, as observed by Smith J, a candidate would find it difficult to persuade the court that a gift or service of some value was not given as an inducement to vote.  This was what happened in HKSAR v Chan Tak Wai [2010] 4 HKLRD 182, which remains good law despite this judgment.

36. I shall answer the questions at para 7 above as follows,

(a)  No, so long as the magistrate made clear (as he did in the Case Stated) that the primary focus is the intention of the Respondent and that inducement can be shown without proving that the electors were influenced;

(b)  No.  Section 11(1) itself makes it clear that offering an advantage and inducement are two different elements in the offence.  Thus, a finding of advantage does not necessarily lead to a finding of inducement;

(c)  No, the conclusion of the magistrate is not perverse on the evidence and facts of this case;

(d)  The magistrate has given proper consideration to the evidence and he did not take account of any irrelevant consideration.

37. This court therefore upholds the acquittal of the Respondent and the appeal by the prosecution is dismissed.

The constitutional challenge by the Respondent

38. Strictly speaking, given my above conclusion on the acquittal, it is not necessary to deal with the other issues.  But I will briefly deal with them. In so doing, I decline to follow the approach suggested by Mr Pang based on Tindall v Wright (1922) 86 JP 108.  I do not think there is any rule of law which bars this court from addressing the issues raised by the cross-appeal.  It is a matter of discretion.  Having heard full submissions on those issues and in view of their general importance, I believe it is right that this court should express its views on them.

39. On the procedural question as to the permissible scope of a Case Stated, it has to be borne in mind that the Respondent brought up the issue of constitutionality by way of defence and, in this appeal, by way of cross-appeal.  It is not a case where the prosecution does not challenge the acquittal and the Respondent, despite her acquittal, seeks to challenge the ruling of the magistrate on the constitutionality of Section 11(1) by way of her own appeal.  Facing with a possibility of the acquittal being reversed, I find it difficult to accept that the Respondent should not be allowed to canvass an alternative limb of defence raised by her (and ruled upon by the magistrate) in the appeal to uphold her acquittal and that this court should be precluded from considering the alternative defence even though the prosecution had been given sufficient notice of the same.  That would not be consistent with the notion of fairness which is fundamental to our system of criminal justice.

40. Mr Pang (and the arguments before the magistrate) focused on the scope of Section 105 in support of his contention that the issue of constitutionality should not be entertained in this appeal.  In my judgment, the answer lies in other sections.  Once an appeal by way of Case Stated has been brought by one party, the case as drafted could be subject to amendments under Sections 107 and 109.  In my judgment, fairness mandates that it is permissible to a respondent (be him the defendant or the prosecution) to request an amendment to add a question of law to uphold the final outcome of the trial on an alternative basis.  Whether that should be done will depend on the facts of each case.

41. As regards the issue of constitutionality, as I understand it, Mr Lee concentrated his challenge on the inclusion of “other services” in the definition for “advantage”.  Counsel submitted that such a wide definition of advantage would catch some legitimate services provided by candidates, be them incumbent or otherwise, which should not be regarded as corrupt.  He even went so far as suggesting that all public services offered by politicians were offered with a view to canvass votes in the future, and therefore, would be caught by Section 11(1).

42. The last point seems to be somewhat incongruent with the acquittal of the Respondent.  In my view, the magistrate was correct in holding that the offering of advantage is only one element in the offence.  As mentioned, there are two other elements: inducement to vote and absence of reasonable excuse.  In terms of ordinary public services provided by a politician during non-election period, it would be difficult to establish that they were provided as inducement to vote in an election.  A politician may be motivated by a wish to achieve or maintain popularity in the eyes of electors in providing the services.  But motive is not intent in the eyes of law, such a motive would not be regarded by the law as inducement to vote for him or her in a specific election.  It would be absurd to regard such ordinary acts of public service as bribery which is the description of the offence under Section 11(1).

43. For services provided during election period, much depends on the nexus between the offering of the services and the promotion of a candidate in the forthcoming election.  As discussed above, the proximity with the electioneering activity and the value of the services would be highly relevant.  Despite so, as illustrated by the present case, an offence is only committed in a clear case of the candidate having an intent to induce vote for him or her in the provision of the service.  Further, if a candidate provided the service in good faith without any corrupt intent (as in the case where a candidate continued to serve a particular member of the public during election period in a matter where he or she has been following before the commencement of election period), a defence of reasonable excuse is available.

44. Viewed thus, I do not think the offence under Section 11(1) could in any way be regarded as an interference with the right to stand for election protected by Article 26.  Mr Pang rightly relied on para 19 of the General Comment No 25 on Article 25 of the ICCPR,

“Persons entitled to vote must be free to vote for any candidate … without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will. Voters should be able to form opinions independently, free of violence of threat of violence, compulsion, inducement or manipulative interference of any kind.”

It is plain that a right to stand for election does not imply a right to procure votes by inducement (as interpreted above).  Inducement by service within the scope of Section 11(1) is no less corrupt than other forms of inducement.

45. I shall answer the questions at para 8 as follows,

(a)  In the present circumstances (where the prosecution has appealed), no;

(b)  Mr Lee did not pursue the point.  In any event, the answer is no;

(c)  No. 

Outcome

46. The appeal is dismissed.  I shall now hear parties on costs.