SECRETARY FOR JUSTICE v. KAN BRIAN PING CHEE

CAAR 11/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 11 OF 2011

(ON APPEAL FROM FLCC NO. 1724 OF 2011)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The respondent (Kan Brian Ping-chee), born in 1937, a retired horse trainer with the Hong Kong Jockey Club, appeared before Wong Yu-wing Symon Esq (the magistrate) in Fanling Magistrates’ Court on a charge of engaging in corrupt conduct at an election, contrary to ss 6 and 11(1)(a) of the Elections (Corruption and Illegal Conduct) Ordinance (the Ordinance), Cap 554 (the charge).

2. The respondent pleaded not guilty to the charge, but was convicted on 18 November 2011.  The magistrate remanded the respondent in custody pending a background report.

3. On 12 December 2011, the magistrate sentenced the respondent to three months and two weeks’ imprisonment (the sentence).  The magistrate adopted a starting point of 5 months, but reduced it to three months and two weeks because of the respondent’s advanced age and the suggestion that he had made and would continue to make valuable contributions to society.

4. The respondent sought leave to appeal against conviction all the way to the Court of Final Appeal.  The Court of Final Appeal dismissed his application on 15 July 2013.

5. The Secretary for Justice (the applicant), with leave granted by the Chief Judge of the High Court on 3 January 2012, applied, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, for a review of the sentence.  It was the applicant’s contention that the sentence “fell outside the range of sentences which the magistrate, applying his mind to all the relevant factors, could reasonably consider appropriate”. (Per Lord Lane CJ in Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41 at p 46A)

6. The applicant, represented by Mr William Tam, Deputy Director of Public Prosecutions, contended that the sentence was manifestly inadequate and/or wrong in principle.

7. At the end of the hearing, we granted the application and increased the respondent’s sentence to 12 months’ imprisonment. We indicated that we would hand down our reasons in due course and these are the reasons.

The Facts

8. The respondent, an indigenous inhabitant of the New Territories, was one of the 46 Village Representatives who were eligible to vote at and/or be nominated as candidates to be elected as the Chairman, Vice-chairman or a member of the Executive Committee of the Sheung Shui District Rural Council (“SSDRC”).

9. The Chairman and Vice-chairman of “SSDRC” are ex-officio councillors of the Full Council of the Heung Yee Kuk, which is a functional constituency of the Legislative Council.  Heung Yee Kuk was also one of the subsectors based on which the Election Committee for the election of the Chief Executive of the HKSAR in 2012 was constituted under the Schedule to the Chief Executive Election Ordinance, Cap 569.  The Chairman of “SSDRC” is an ex-officio member of the relevant District Council.

10. In February 2011, the Home Affairs Department announced that the “SSDRC” Election (the Election) would be held on 15 March 2011.  On 28 February 2011, the respondent submitted his nomination as a candidate for the Election.

11. Mr Liu Fu-sau (Mr Liu), who operated a store at Po Sheung Tsuen in Sheung Shui District, was one of the 46 Village Representatives.  Mr Liu knew the respondent before 2003 when the respondent was the Chairman of “SSDRC”, but had no personal dealings with him.

12. In mid-February 2011, the respondent visited Mr Liu at his store and informed him that he would stand for the Election.  The respondent asked Mr Liu to support him in running for Chairman of “SSDRC”.

13. On 27 February 2011 in the morning, the respondent visited Mr Liu’s store again, but Mr Liu was out.  The respondent waited for Mr Liu in the store and Mrs Liu saw him enter a mah-jong room.  When Mr Liu returned, the respondent again asked Mr Liu to support him in the Election.

14. Before the respondent departed, he told Mr Liu that he had left something inside the mah-jong room and said it was “$130,000”.  Mr Liu subsequently found 130 pieces of $1,000 notes (a total of $130,000) inside the room and having considered the matter for some time, made a report and handed the money over to the ICAC on 2 March 2011.

The Respondent’s Background and Mitigation

15. The respondent (aged 74 at the time of the offence) had studied up to Form Three in an evening school whilst working as a messenger and a clerk.  In 1962, the respondent went to England to work in a stable.  He was at the same time studying and working in a Chinese restaurant.

16. In 1969, the respondent returned to Hong Kong to work as an attendant in a riding school.  In 1971, the respondent started working at the Hong Kong Jockey Club and became a horse trainer in 1978.  He retired from the Hong Kong Jockey Club in 2003, having been Hong Kong’s champion trainer for five times, but continued to work in the Macau Jockey Club as a horse trainer.

17. The respondent is married with four adult children, two sons and two daughters.  The respondent participated in public affairs of his village as well as in the New Territories.  He has been the representative of his village since 1982.  He acted as the Chairman of “SSDRC” and was the ex-officio member of North District Council from 1988 to 2003.  He was also a member of Heung Yee Kuk from 1985 to 2003.

18. According to his background report, the respondent had no specific health problem except that of Meniere’s Disease and he would feel dizzy sometimes.  A medical report was placed before us saying that the respondent had a history of Hypertension, Hyperlipidemia, Arrhythmia, Ischaemic Heart Disease and Benign Prostate Hypertropy.

19. The respondent was convicted of five charges of “Indecent Assault” on his Philippine domestic helper in 1989 and was fined $5,000 for each of the charges.

20. In mitigation, numerous character reference letters from various sectors of society were submitted, pointing out the respondent’s achievement and saying that he had contributed to society.  It was emphasized that the respondent was 74 years old and that the conviction would have a significant negative impact on his reputation that he had diligently built up over a long period of time.

The Magistrate’s Approach

21. In his short reasons for sentence, the magistrate emphasized that the court has the duty to ensure that elections are clean and fair in order to maintain the confidence of the public.  The magistrate pointed out the size of the bribe but took the view that the respondent might have been overly eager to serve the community, and therefore foolishly committed the offence.

22. The magistrate regarded the respondent’s previous convictions of indecent assault as spent convictions.  The magistrate took into consideration the character reference letters and accepted that the respondent had been active in charity works and had made considerable contributions to society.  The magistrate further accepted that it was unlikely that the respondent would re-offend.

23. However, the magistrate did not accept that there was any special circumstance to justify a non-immediate custodial sentence.  The magistrate pointed out that the respondent had taken an active role in bribing Mr Liu to vote for him and that the $130,000-advantage offered by the respondent was substantial.  The magistrate further took the view that a deterrent sentence was called for to demonstrate the strong disapproval of society against corrupt practices in elections.

24. Nevertheless the magistrate took into consideration the advanced age of the respondent and his valuable contributions to society before concluding that a 5-month starting point was appropriate.  The magistrate reduced the starting point to three months and two weeks because of the mitigating factors.

Grounds of the Application

25. Mr Tam argued that the magistrate, in adopting a 5-month starting point and then reducing it to 3 months and 2 weeks, had failed to have sufficient regard to the public interest and the need for specific and general deterrence.  He emphasized that as the Election only involved a small electorate body of 46 electors, any malpractice would have a great adverse impact on the result of the Election, particularly when the respondent had offered a sum of $130,000 to Mr Liu.

26. Mr Tam further suggested that the magistrate was wrong to reduce the starting point on account of the respondent’s age and that there was no evidential basis for the magistrate to form the view that the offence was committed because “the (respondent) may have been overly eager to serve the community, and therefore foolishly committed the present offence”.

27. Mr Tam submitted that the fact that the respondent was unlikely to re-offend was hardly relevant when the offence would have disqualified him for 5 years anyway.  He suggested that the discount of more than one-third was unjustified when the respondent had contested the charge and had shown no remorse.

28. Mr Tam contended that when the magistrate adopted a starting point of 5 months’ imprisonment, he had failed to have sufficient regard to the intention of the Legislature.  He emphasized that the offence in question attracts a maximum fine on summary conviction of $200,000 on top of imprisonment whereas a bribery offence under section 4 of the Prevention of Bribery Ordinance attracts the same maximum term of imprisonment, but with a maximum fine on summary conviction of only $100,000.  The suggestion was that the offence in question was more serious than a bribery offence.

29. Mr Tam suggested that a minor bribery offence would attract a sentence of 12 months’ imprisonment and when the offence committed by the respondent was more serious than an offence under section 4 of the Prevention of Bribery Ordinance, the sentence of 3 months and 2 weeks’ imprisonment imposed on the respondent was manifestly inadequate and/or wrong in principle.

The Respondent’s Position

30. Mr Graham Harris SC, leading Mr Joseph Lee and Ms Emily Yu, pointed out that a sentence should only be reviewed if it is unduly lenient in the sense that it is unwarranted and not capable of justification.  He suggested that even if the sentence was unduly lenient, the court still has a discretion not to exercise its powers to review the sentence.

31. Mr Harris suggested that the sentence was not unduly lenient and not outside the range of sentences that could be reasonably considered to be appropriate, particularly in the light of the respondent’s personal circumstances.  Mr Harris referred, in his written submission, to HM Advocate v Wheldon (1999) JC 5, Everett v The Queen (1994) 181 CLR 295 and S for J v Yan Shen [2012] 3 HKLRD 652 to support his contention.

32. Mr Harris acknowledged the importance of the fairness of elections, but argued that the offence committed by the respondent was on a small scale and that the Election was less important than that of the Legislative Council.  He suggested that the cases of S for J v Lee York Fai and others (CAAR 3/2011) (with sentences ranging from 27 months to 33 months) and The Queen v Leung Kam-ho, Gilbert [1995] 1 HKCLR 90 (with a total sentence of 3 years) were far more serious cases.  He emphasized that Lee York Fai (supra) and Leung Kam-ho, Gilbert (supra) were respectively District Court and High Court cases.

33. Mr Harris accepted that the respondent had been a Village Representative for many years and the Chairman of “SSDRC” from 1998 to 2003, but pointed out that he had not deliberately made use of his position to commit the offence and therefore his background should not be an aggravating factor.

34. Mr Harris suggested that the magistrate was right to take into consideration the respondent’s services to the community, his age, and that the offence was committed because the respondent was overly eager to serve the community and that it was unlikely that the respondent would re-offend.

35. Contrary to Mr Tam’s submission, Mr Harris suggested that the respondent’s age, despite his previous conviction which was of a different nature, was properly taken into consideration by the magistrate as one of the mitigating factors.  Mr Harris emphasized that the respondent had suffered a tragic fall from grace.

36. Mr Harris further suggested that offences under the Ordinance are wide-ranging and wholly dependent on the facts of each case and no useful purpose would be served in treating offences under the Ordinance as or more serious than offences under section 4 of the Prevention of Bribery Ordinance.

37. Mr Harris invited this court not to increase the sentence even if it was unduly lenient because of the respondent’s background and the circumstances of the case.

38. As his fall-back position, Mr Harris suggested that any increase in sentence must reflect the “double jeopardy” consideration when the respondent had suffered additional distress and anxiety as a consequence of having his sentence re-opened and increased.  Mr Harris emphasised that the respondent had already served the sentence, having been remanded for reports and having been granted bail pending his appeal against conviction. 

Discussion

39. Attempts to illegally interfere with any election process are very grave and serious matters.  Clean and fair elections are fundamental to the success of democracy and successful electoral fraud has the effect of corrupting democracy.

40. When HKSAR is moving towards greater democracy, the court has the duty to send out a clear and unequivocal message to the public that any corrupt and illegal practices in elections will be seriously dealt with.

“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” (Per Litton JA (as he then was) in R v Leung Kam Ho, Gilbert[1995] 1 HKCLR 90 at p 92)

41. We also wish to repeat what Chan CJHC (as he then was) said in S for J v Lai Wai Cheong [1998] 1 HKLRD 56 at p 58J-59B:

“The best way to experience and practise democracy is to participate in elections either as electors or as candidates. An election system is an important foundation of social and democratic development. It is therefore essential to maintain that elections as all levels should be fair, clean, and have the confidence of the public. It is the responsibility of every citizen to achieve such objective. Corrupt and illegal practices in an election would ruin the integrity of the election. They not only greatly damage the confidence of the public towards elections but also affect the progress in the development of democracy. This would also create far-reaching adverse consequences to the whole community.”

42. The Court of Appeal in Lai Wai Cheong (supra), having referred to R v Phillips (1984) 6 Cr App R (S) 293, came to the following view on sentence in electoral illegal practices in the form of “vote planting”:

“…we think that ‘vote planting’ and similar electoral illegal practices, whether they are committed by electors or candidates and campaigners, unless there are very special circumstances, must be punished by immediate custodial sentences. The length of sentence would depend on the degree and method of participation in such practices. We consider that an elector participating in such practices should receive an immediate custodial sentence of two months or more and a candidate or election campaigner four months or more. If such practices involve any form of advantage, or other corrupt and unlawful conduct, such as intimidation, threat, bribes, conspiracy or other more serious offences, the period of imprisonment would be even longer.”

43. Lai Wai Cheong (supra) concerns a defendant (a candidate in the Tai Po Hui constituency in District Board elections) who had a clear record and had done voluntary social service work.  The defendant arranged for a friend living in another constituency to be registered as an elector in the Tai Po Hui constituency and invited the friend to vote for him at the election.  The Court of Appeal considered a sentence of four months’ imprisonment appropriate, but only suspended it because of the special circumstances in that case.

44. We have to say that the offence committed by the respondent is far worse than Lai Wai Cheong (supra), which involved one voter in a constituency of possibly tens of thousands of voters.  “SSDRC” only consists of 46 Village Representatives who are entitled to vote and the respondent targeted one of them.  A favourable vote from Mr Liu could have a very significant impact on the result of the Election.

45. The respondent was prepared to pay a very large sum of money ($130,000) to Mr Liu in order to secure his favourable vote.  Given also the respondent’s background and position, the pressure on Mr Liu to succumb to the temptation was significant.

46. The fact that the respondent simply left behind a very large sum of money in Mr Liu’s store, having earlier told Mr Liu to support him, showed that the respondent had no regard for the law and was contemptuous of the need for an untainted and fair election.

47. The suggestion that the respondent was overly eager to serve the community could not have been a mitigating factor in election offences as such a mitigating factor can be advanced in practically every case of this nature.

48. The fact that the respondent had been expelled from a social club and the fact that his consultancy service to a company had been terminated are not matters relevant to sentence.  The respondent only had himself to blame for those matters.

49. We agreed with the observation of Mr William Tam that the respondent had acted in flagrant disregard of the sanctity and integrity of the electoral system.  The court is duty bound to impose deterrent sentences to stop any corrupt and illegal practices in elections.

50. We did not find it necessary to linger on the issues of whether the magistrate might have placed undue emphasis on the respondent’s contribution to society and his advanced age.  Contribution to society can be a mitigating factor and advanced age, even for a defendant with previous convictions, can also be a mitigating factor, not as a matter of principle, but “as an act of mercy” (see HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894 at p. 895 and R v Chan Tak Sang & Others [1987] HKLR 1203 at p. 1207).  However, in our view, such mitigating factors carried little weight in an offence of this nature.

51. In Leung Kam-ho, Gilbert (supra), where the defendant offered significant sums to three voters to vote for him in an election to the Legislative Council by the Regional Council constituency which consisted of only 36 voters, and the Court of Appeal approved a total sentence of 3 years’ imprisonment.

52. We accepted that Leung Kam-ho, Gilbert (supra) is a more serious case.  We accepted also that there should be a discount because of the “double jeopardy” factor.

53. However, we were firmly of the view that the 5 months’ starting point and the sentence of 3 months and 2 weeks’ imprisonment were both manifestly inadequate and wrong in principle.  We were of the view that given the nature of the offence and the circumstances in which it was committed, the proper starting point should at least be 18 months’ imprisonment.

54. Taking into consideration that this is a sentence review application and the various mitigating factors, there should be a one-third discount and the proper sentence should be 12 months’ imprisonment.

55. We therefore granted the application.  We quashed the sentence of 3 months and 2 weeks’ imprisonment and in substitution thereof imposed a sentence of 12 months’ imprisonment on the respondent.