THE QUEEN v. LAM FAI LUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.788 OF 1995

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J U D G M E N T

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1. This was an appeal against a conviction for publishing a false statement of fact concerning an election candidate, contrary to ss.10A and 16(1) of the Corrupt and Illegal Practices Ordinance, Cap.288. It was alleged against the appellant that he had published a notice intended to be seen by the voters in the Lek Yuen Constituency, alleging electoral misconduct on the part of his wife's opponent in the election, Kan Chung Nin. He alleged against Kan that he had given cakes to voters and had been purchasing votes through residents' associations, and that he was of a rotten character.

2. It was not in dispute that the appellant had posted such notices at various locations at Lek Yuen on 17th September 1994, the day before the election. The notices were headed "Serious Event" and signed "A group of angry residents".

3. Section 16(1) of the Corrupt and Illegal Practices Ordinance reads as follows :

" No person shall before or during any election for the purpose of affecting the return of any candidate at such election, make or publish any false statement of fact in relation to the personal character, qualifications or conduct of such candidate."

s.16(1B) of the Ordinance is to this effect :

" No person shall be deemed to be guilty of a contravention of subsection (1) or (1A) if he can show that he had reasonable grounds for believing and did believe, the statement made by him."

So far as I was concerned, the only ground of appeal with merit concerned s.16(1B). As the learned Magistrate said in his Findings :

"The crucial question was whether it was reasonable for the defendant to have concluded in all the circumstances, purely from what he had been told (and from his reading of the ICAC guidelines 'D1') that Mr Kan had during the 'election period' committed 'illegal acts' by giving cakes to some voters and Mutual Aid Committees."

In finding the defendant guilty, the learned Magistrate correctly stated the onus upon the defendant when he said :

"The defendant has been unable to show me on a balance of probabilities that he had reasonable grounds for believing that and I am satisfied that the Crown have proved the charge in all its essential elements beyond a reasonable doubt and I, therefore, find the defendant guilty as charged."

What is complained of is the learned Magistrate's directions to himself in relation to the words "reasonable grounds". In his judgment the learned Magistrate said this, and it is necessary to set it out at length :

" The defendant said that he had concluded that the giving of any gift or treat during the election was illegal. He said that the basis of that belief was the ICAC guidelines and he referred the court to the 'problem solving section', questions and answers 8, 9 and 11. That section, in my mind, makes it clear to the reader that only corrupt provision for the purpose of influencing the vote would be illegal. A reasonable man looking to that for guidance would realise that before it could be considered illegal any gift or treat in question had to be corrupt and for the purpose of influencing the vote. The relevant section of the guidelines is prefaced by the words. 'It must be stressed that these questions and answers are general in nature and intended for reference only. A candidate unsure of the legality of any individual case or situation should consult his legal advisor.' Those guidelines contain a list of addresses and telephone number of ICAC officers for the benefit of any person wishing to make enquiry on the Corrupt and Illegal Practices Ordinance and suggests that any person who discovers or suspects any corrupt or illegal practices at the elections call the ICAC, 24 hour hot line.

If there had been any reasonable doubt whatsoever as to whether or not the treating in question had been corrupt that is precisely the sort of action the defendant should have taken. Even given the limited time before the election that would have been the proper course for him to have adopted. Appropriate proceedings, if justified, could have been instituted against Mr Kan in due course even after the election, regardless of its result. The defendant ought to have seen to it that he had taken all steps reasonably practicable to be as sure as he could reasonably have been of Mr Kan's guilt before making the accusation that he did.

I am prepared, based on what the defendant says he had heard at the public briefing session organised by the electoral office in August 1994 to accept, on a balance of probabilities, that the defendant might reasonably have believed that the election period extended further back than in fact it did. I am prepared also to accept that, in fact, he might really have believed that Mr Kan had been guilty of illegal acts of corrupt treating during the period that he incorrectly believed to be the election period.

As to whether or not it was reasonable for him to believe that, one must start with the basic premise that treating may be corrupt or it may be entirely innocent. Before any person is entitled properly to conclude that it is corrupt there should be very clear evidence that the motive of the person using it is dishonest and corrupt, i.e. made with reference to some election and for the purpose of corrupting the vote. Whether that is so or not is a matter of inference to be drawn from the facts of each particular case and must depend on many circumstances including those of time, place, the person by whom the charity is distributed and by whom it is received, whether it has been given in pursuance of an accustomed course, or whether it is novel and unprecedented and especially whether the persons to whom it is given are proper recipients. The governing principle is whether in the mind of the man who made such gifts he was doing something with a view to corrupt the voters or a mere act of kindness or charity. Before an inference of corrupt treating can properly be drawn it should be a compelling one and the only one that no reasonable man could fail to draw. I have reached the conclusion that, on the basis of all that was known to the defendant at the time he published the notices, there should have been a reasonable doubt in his mind as to whether the treating in question was corrupt or innocent and that it was not reasonable for him to have concluded that, even during the election period as he mistakenly perceived it, those acts of treating by Mr Kan of which he had heard (i.e. the giving of cakes to the elderly and the Mutual Aid Committees) had been corrupt. The defendant appears to have adopted as his yardstick the quantity of what he had heard in that respect and to have paid no attention to the question of its quality."

In his Statement of Findings, the learned Magistrate repeated more or less the same direction when he said :

"What the defendant had been told about PW1 might perhaps have afforded reasonable grounds for suspicion as to the purpose of PW1's treating. However, whether there were reasonable grounds for believing it had been corrupt is altogether a different matter. What the defendant had heard was, in my judgment, far from being sufficiently compelling to form the basis of a reasonable belief that the acts in question had been corrupt for the purpose of influencing the vote. I found that, in the circumstances, a reasonable man would have felt compelled to have entertained a reasonable doubt as to that and that had the defendant considered the matter dispassionately so too would he."

4. The question is : Was that a proper direction? Does having reasonable grounds for believing anything mean that all reasonable doubt must be eliminated about that thing before the belief is reasonable? In other words, does having reasonable grounds for believing mean believing beyond reasonable doubt, as the defendant in the instant case would then be required to establish on the balance of probabilities that he had eliminated all reasonable doubt about PW1's motives for handing out cakes being corrupt, and for the purpose of influencing the vote.

5. It is my view, that the learned Magistrate imposes too heavy an onus on the appellant by requiring him to establish beyond reasonable doubt that the motivation was corrupt, when the legislation really only requires that the belief be reasonable i.e. in accordance with reason, and not irrational or absurd. To establish that he had reasonable grounds for believing, and that he did believe that PW1's motives were corrupt, and to establish that on the balance of probabilities, the appellant had to show he had an honest belief, founded upon reasonable grounds, of the existence of a state of affairs, which, assuming it to be so, would reasonably lead any ordinarily prudent and cautious man to conclude that PW1's motives were probably corrupt. It seems to me, with respect to the learned Magistrate, that if, as he was prepared to accept, the appellant had reasonable grounds for believing that cakes etc. were being given to potential voters during the election period, that surely afforded him reasonable grounds for believing that the gifts were probably being given for a corrupt purpose, i.e. to affect the election. That would be a reasonably compelling inference. Indeed it is at least arguable that the giving by a District Board Member, and potential future candidate, of gifts to potential future voters, even outside the election period, under whatever guise, would give reasonable grounds for believing that these acts were probably not entirely devoid of corrupt motive. I am surprised that any politician is allowed to do this with impunity.

6. It was my view that the learned Magistrate misdirected himself on the meaning of "reasonable grounds" and so fell into error. I must therefore allow the appeal and quash the conviction.