HKSAR v. CHENG WING KIN (鄭永健)

Press Summary (English)

Press Summary (Chinese)

FACC No. 5 of 2019

[2020] HKCFA 3

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2019 (CRIMINAL)

(ON APPEAL FROM CACC NO. 339 OF 2016)

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JUDGMENT

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Chief Justice Ma:

1.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Spigelman NPJ.

Mr Justice Ribeiro PJ and Mr Justice Spigelman NPJ:

2.  The appellant was convicted of offences under the Elections (Corrupt and Illegal Conduct) Ordinance (“ECICO”)[1] in connection with the District Council Election held on 22 November 2015.  In particular, he was convicted after trial before HH Judge CP Pang[2] on charges of engaging in corrupt conduct by corruptly offering an advantage consisting of sums of money to another person (i) as an inducement for that person to stand as a candidate at the election (contrary to section 7(1)(a)); and (ii) as an inducement for that person to get, or try to get, a third person to stand as a candidate at the election (contrary to section 7(1)(c)).  He was also convicted of conspiracy to engage in corrupt conduct contrary to section 7(1)(g).[3]

A.     The proceedings below

3.  The Judge found that the appellant had approached certain persons associated with “localist” political agendas, offering them cash in sums of “up to $250,000” as an inducement either to stand themselves, or to get others to stand, for election in designated constituencies with a view to diverting or “undercutting” votes which might otherwise be cast in favour of candidates with “pan-democratic” sympathies.[4]  The charges concerned the advantage offered by the appellant to Ku Ka Ho (“Ku”) to arrange for Chan Kin Loong (“Chan”) to stand as a candidate in a designated constituency.  Ku and Chan accepted the offer and were charged as 2^nd and 3^rd defendants alongside the appellant.

4.  At the trial, the appellant admitted having made the approaches and having offered what was referred to as a “sponsorship plan” to potential localist candidates.  His defence was that he did not genuinely intend to induce them to stand as candidates but that his offer was a pretence to enable him to uncover and expose on his online radio station “shady affiliations” between localist organizations and pan-democratic political parties.[5] 

5.  The Judge rejected his evidence, finding that “... the election proposal mentioned by [the appellant] was not a pretence as he claimed” but that “[his] real intention was to use the sponsorship to induce others to stand for the election in designated constituencies.”[6]  His Honour held that in offering the advantage, the appellant had “... used money to get people to stand for elections in order to manipulate the result of elections”, being conduct which “would prevent elections [from being] conducted fairly, openly and honestly”.[7]

6.  The appellant was sentenced to a total term of imprisonment of 4 years.  The Court of Appeal[8] dismissed the appellant’s appeal against conviction but reduced his sentence to a total term of 3 years and 3 months’ imprisonment.

B.     The issue on this appeal

7.  The offence with which we are concerned is created by ECICO section 6 which states: “A person who engages in corrupt conduct at an election commits an offence”.  If tried summarily, the defendant is made liable on conviction to a fine of $200,000 and to imprisonment for 3 years; and liable to a fine of $500,000 and to imprisonment for 7 years if tried on indictment.

8.  The scheme of the ECICO is more closely examined in Section C of this judgment, but for immediate purposes, the relevant variant of the section 6 offence created by section 7(1)(a) is materially defined as follows:

“(1) A person engages in corrupt conduct at an election if the person corruptly—

(a) offers an advantage to another person as an inducement for the other person—

(i) to stand, or not to stand, as a candidate at the election...”

9.  Likewise, the pertinent variant of the section 6 offence defined by section 7(1)(c) relevantly provides:

“(1) A person engages in corrupt conduct at an election if the person corruptly—

(c) offers an advantage to another person as an inducement for the other person to get, or try to get, a third person—

(i)  to stand, or not to stand, as a candidate at the election ...”

10.  In the Courts below, the true construction of section 7(1) was considered.  In particular, the meaning and effect of the word “corruptly”, qualifying the words “offers an advantage” was in issue.  As the trial Judge and the Court of Appeal adopted different approaches and as disparate authorities relied upon in the debate appear to be of questionable relevance, the Appeal Committee[9] granted leave to appeal, certifying as a suitably important question of law, the following:

“What is the meaning of the word ‘corruptly’ in section 7(1) of the [ECICO]?”

11.  The determination of this question also involved considering whether the word had relevance to the mens rea element of the offence created under section 7(1).

12.  For present purposes, unless otherwise indicated, the discussion can proceed in relation to section 7(1) without distinguishing between section 7(1)(a) and section 7(1)(c) since the issues arising generally apply to both provisions.

C.     Construction of section 7(1)

13.  It is well-established that the proper approach to statutory construction is contextual and purposive.  As Sir Anthony Mason NPJ stated in HKSAR v Lam Kwong Wai:[10]

“The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise ...”

C.1   ECICO section 3: the statutory purpose

14.  The purpose of the ECICO in general and of section 7(1) in particular must be examined, placing that section, including the word “corruptly”, in its appropriate context.  In undertaking that exercise, ECICO section 3 is of prime importance as an aid to construction since it expressly sets out the objects of the Ordinance, relevantly stating:

“The objects of this Ordinance are— (a) to ensure that, as far as practicable, [the relevant elections[11]] ... are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct ...”

15.  Thus, section 3 identifies as a positive objective, conducting elections “fairly, openly and honestly”; and as a negative objective, keeping elections “free from corrupt conduct and illegal conduct”.  This strongly indicates that construed purposively, conduct which the Ordinance qualifies as “corrupt and illegal” is intended to be conduct which is antithetical to the achievement of “fair, open and honest” elections.  Section 3 therefore gives the inherently vague concept of “corrupt” a purposive and contextual framework: conduct which is prohibited as “corrupt” is activity which has a tendency to subvert “fair, open and honest” elections.

C.2   Context: the structure of Part 2 of the ECICO

16.  The structure of Part 2 of the ECICO headed “Corrupt Conduct” is somewhat unusual.  As pointed out above, section 6 creates the offence of engaging in corrupt conduct at an election and prescribes the maximum sentences.  Sections 7 to 21 respectively then proceed to specify different forms of conduct constituting separate variants of that offence. 

17.  An examination of those variants reveals that the term “corrupt conduct” in Part 2 is used in a special, expanded way.  While some instances of the offence do involve “corruption” in the usual sense of involving some form of “bribery and corruption”, ie, illicit conduct calculated to subvert or deflect an official or agent from the proper exercise of his or her duties, “corrupt conduct” in the context of Part 2 clearly covers a broader range of behaviour. 

18.  The activities prohibited as “corrupt conduct” may be placed roughly in four groups: (i) conduct involving some form of “bribery” (sections 7, 11, 12 and 21);[12] (ii) conduct involving use of force or duress (sections 8 and 13);[13] (iii) conduct involving deception (sections 9, 14 and 15);[14] and (iv) conduct involving interference with the election process (sections 10, 16, 17, 18 and 20).[15]  Conduct under the last three headings would not normally be called “corrupt”, but in the context of Part 2 and viewed purposively in the light of section 3, the unifying theme of the variants of the offence is evidently the promotion of fair, open and honest elections and the prohibition of contrary conduct, indicating the special sense in which “corrupt conduct” is used.

19.  It is in this context that a peculiarity of section 7(1) comes to the fore.  It is the only variant of the offence of engaging in corrupt conduct, created by ECICO sections 6 and 7, in which the word “corruptly” is used to qualify the prohibited conduct in question.  As we have seen, section 7(1)(a) materially provides:

“(1) A person engages in corrupt conduct at an election if the person corruptly—

(a) offers an advantage to another person as an inducement for the other person—

(i) to stand, or not to stand, as a candidate at the election [etc];

20.  In each of the paragraphs of section 7(1), the forbidden behaviour – consisting of offering, soliciting or accepting an advantage – is defined as the offence of “engaging in corrupt conduct”.  The question therefore arises as to why section 7(1) introduces the concept of corruption a second time by applying the word “corruptly” to each paragraph. Why is this needed in relation to offering, soliciting or accepting an advantage but not needed in respect of the other variants of the offence, involving bribes, force or duress, deception and interfering with the election process?

21.  In our view, the answer lies in the nature of the section 7(1) offences involving the offering, etc, of an “advantage” which is a very broadly defined concept, and the need to set the boundaries of those offences by reference to the purposive and contextual construction here adopted.

22.  As noted above, on a purposive construction of Part 2, the unifying purpose of the variants of the offence of engaging in corrupt conduct (including the section 7(1) instances) is the promotion of fair, open and honest elections and the prohibition of antithetical conduct. The variants other than those defined by section 7(1), specific in nature, [16] may be thought self-evidently to promote that purpose.  However, by contrast, the section 7(1) variants are all concerned with “advantages”, a concept given a very broad definition which may well encompass innocuous conduct as well as matters or transactions which are properly prohibited as detrimental to fair elections.  ECICO section 2(1) materially defines “advantage” as follows:

“(1) In this Ordinance, unless the context otherwise requires—

advantage means—

(a) any valuable consideration, gift or loan; or

(b) any office, employment or contract; or

(c) the full or partial payment, release, discharge or liquidation of an obligation; or

(d) the exercise of or forbearance from exercising a right or power; or

(e) the performance of or forbearance from performing a duty; or

(f) any favour, including— (i) giving protection from a liability incurred or anticipated; and (ii) giving protection from proceedings or possible proceedings of a disciplinary, civil or criminal nature; or

(g) any other service (other than voluntary service or the provision of entertainment),

but does not include an election donation if particulars of the donation are given in an election return that has been lodged with the appropriate authority ...”

23.  One can well conceive of conduct which may fall within the abovementioned definition (especially paragraphs (f) and (g)) but which does not affect the integrity of an election.  A hypothetical example was discussed at the hearing: D, a member of the Legislative Council, considers a young member of the same party as a promising potential candidate for election to the legislature.  He offers that person employment as his research assistant at a modest salary in order to give him insights into the work of a legislator in order to prepare him for possible candidacy in elections due to be held a year later.  Such employment qualifies as an “advantage”.   And while the offer of such employment might be thought to fall within section 7(1)(a) as an inducement for the young person to stand as a candidate at the election, it may be difficult to see how criminalisation of such an arrangement would be justified.  Much of course depends on the facts of any given case.

24.  In our view, the insertion of “corruptly” in section 7(1) indicates a legislative intention to introduce a purposive limit on the broad definition of “advantage”.  The offer, etc, of the advantage must be made “corruptly” before an offence is committed.  “Corruptly” in this context should be understood to be an invocation of the statutory purpose laid down by ECICO section 3.  As noted above,[17] giving effect to that purpose involves understanding “corrupt” activity to be conduct having a tendency to subvert “fair, open and honest” elections. 

25.  Thus, construed purposively in the context of section 3, the word “corruptly” in section 7(1) operates to confine the offence to conduct which has an objective tendency to undermine “fair, open and honest” elections.  Accordingly, if a defendant is charged with offering an advantage to another person as an inducement for that person to stand or not to stand as a candidate at an election, one has to examine the alleged advantage and ask whether it was “corruptly offered”, meaning, an advantage of such a nature and offered in such circumstances as to have a tendency to undermine fair, open and honest elections.  If not, the alleged conduct does not qualify as “corrupt” and the offence is not committed.

26.  We have expressed the view that the other variants of the offence self-evidently align with the statutory purpose. However, to the extent that doubt exists in a specific case, the same approach is properly applicable.  Sections 7 to 21 are to be construed purposively as creating offences which advance and are confined by the statutory objectives, both positive and negative, set out in section 3.

D.     The Judge’s approach to construction of section 7(1)

27.  Important aspects of the Judge’s approach reflect the reasoning adopted in this judgment.  Thus he noted the importance of ECICO section 3 in a contextual and purposive construction[18] and recognised the need to avoid criminalising “ordinary, reasonable and even necessary conduct of political parties and election campaigns”.[19]  As His Honour rightly held:

“For the purpose of section 7 offences, what the Ordinance expressly means to forbid is conduct which will undermine the objects of the Ordinance as stipulated in section 3. One of the objects of the Ordinance is to ensure that elections are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct (see Mok Charles Peter v Tam Wai Ho FACV 2/2012). In other words, the conduct which [it] is meant to forbid is conduct which will hinder elections to be conducted fairly, openly and honestly.”[20]

28.  However, with respect, we part company with the Judge in two major respects.  First, we do not consider that decided cases, especially those in the 19^th Century,[21] touching on use of the word “corrupt” in English legislation which is very differently structured and worded, provide any guidance in the interpretation of the relevant provisions of the ECICO.   Nor do we consider it helpful to refer to case-law[22] on the Prevention of Bribery Ordinance[23] or its predecessor the Prevention of Corruption Ordinance,[24] which pursue different statutory purposes and raise very different issues.  It is, however, entirely understandable that His Honour should have made reference to these materials as they have been relied on in previous decisions of the Hong Kong courts and also relied on by the present parties and the amicus in this Court. 

29.  Secondly, we do not agree with the Judge’s conclusion that on its true construction, section 7(1) imposes what he calls a requirement of “double intent”.  His Honour held as follows:

“The prosecution is required not only to prove the intention of the defendant to induce others or be induced by others to stand or not to stand for election, it is also required to prove the intention of the defendant to hinder elections to be conducted fairly, openly and honestly. In other words, the prosecution is required to prove ‘double intent’.”[25]

“The word ‘corruptly’ is injected with subjective element. The prosecution shall prove beyond reasonable doubt that the defendant has the intention to corrupt. If a defendant may not purposely perform an act which is forbidden by law, he shall be acquitted.”[26]

“I consider that the factors which the court should take into consideration include: what is the value of the advantage offered or accepted by the defendant, is he in breach of his duty of a voter or a candidate, is he in conflict of interest, what are his objects and intentions, is his conduct open or secretive, is he in breach of any rules and what is his influence. The court should also consider all the circumstances in the case.”[27]

30.  In our view, the mens rea requirement under section 7(1) is an intention to do the prohibited acts which constitute the actus reus of the offence of engaging in corrupt conduct.  Thus, a defendant charged with an offence contrary to section 7(1)(a)(i) must be proved to have intentionally offered an advantage to the relevant person and intended it to be an inducement for that person to stand, or not to stand, as a candidate at a particular election.  There is no need for the prosecution to prove a specific intention on the defendant’s part to “hinder elections to be conducted fairly, openly and honestly” and the court is not called upon to assess the various factors enumerated by the Judge.[28]  As explained above,[29] the word “corruptly” functions in section 7(1) to confine dealings involving the offering, soliciting or receipt of “advantages” to conduct which carries an objective tendency to undermine “fair, open and honest” elections.  It does not introduce an additional mens rea requirement.

E.     The Court of Appeal’s approach

31.  The Court of Appeal rejected the Judge’s “dual intent” construction[30] and adopted a very different approach of its own. 

32.  We have emphasised the statutory purposes expressed in section 3(a) as follows:

“The objects of this Ordinance are— (a) to ensure that, as far as practicable, [the relevant elections] ... are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct ...”

33.  However, the Court of Appeal[31] emphasised paragraph (c) which provides:

“The objects of this Ordinance are ... (c) to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure.”

34.  Embarking on their construction with their focus on election donations and the statutory regime that limits candidates to using election donations only towards election expenses, their Lordships developed an interpretation of “corruptly” in section 7(1) revolving around the prohibition of personal gain from standing for election.

35.  Yeung VP held as follows:

“The legislative intent of the Ordinance is clear: a candidate is entitled to accept election donations, but such donations can only be used towards election expenses as prescribed in the Ordinance. Where election donations exceed election expenses, the former must be disposed of in accordance with the mechanism set out in section 19 of the Ordinance. In short, a candidate must not have any gains by reason of standing for an election. Section 7(1) of the Ordinance also aims to prohibit candidates from having any personal gains as a result of standing for an election.”[32]

“In my judgment, where a person intentionally engages in conduct prohibited under the ‘Ordinance’, i.e. conduct characterized by the Ordinance as ‘corrupt’, and one of the purposes of doing so is for personal gain of a particular individual or organization, then that person is ‘corruptly’ engaging in such conduct, which constitutes an offence prohibited under the Ordinance.”[33]

36.  Applying this to the appellant:

“... One of the conditions Cheng put forward was to cause the person who stood for the election in accordance with his instruction to obtain personal gain. The above conduct is plainly ‘corrupt conduct’ which the Ordinance is meant to prohibit.”[34]

37.  Poon JA[35] followed the same course, centring on the limits of permissible use of election donations[36] and reaching the same conclusion as to the statutory purpose of forbidding personal gain:

“As this is the legislative purpose of the Ordinance vis-à-vis election donations,[37] the statutory definition of ‘advantage’ encompasses virtually all sorts of benefits, but at the same time does not include election donations properly declared in accordance with the law, the purpose being to prohibit candidates from obtaining any personal gain out of the election. In the context of section 7(1), its purpose is to prohibit anyone at the election from obtaining any personal gain out of the election.”[38]

38.  While holding that “corruptly” involves a mens rea requirement, his Lordship held that a “dual intent” was unnecessary given the “personal gain” construction adopted:

“The offences under section 7(1) aim to prohibit anyone from obtaining personal gain from an election. Any act of offering, soliciting or accepting an advantage goes against the legislative purpose of enacting the section 7(1) offences and will certainly prevent an election from being conducted fairly, openly and honestly. In other words, the section 7(1) offences must be inherently culpable. Therefore, as long as the offender had the intent to commit the corrupt conduct in question, he must have acted ‘corruptly’. The dual intent mentioned by the trial judge is unnecessary.”[39]

39.  With respect, we are unable to agree with the Court of Appeal’s construction of section 7(1) and the word “corruptly” which it contains.

40.  In the first place, the Court of Appeal’s identification of personal gain as the touchstone of “corruptly” appears to have been driven by its focus on the ECICO’s provisions limiting the use of election donations.  But it is hard to see why the present case should be thought to have anything to do with election donations.  The money offered and handed over by the appellant to Ku and Chan did not constitute an “election donation” or an offer of an election donation.  Such donations are defined to involve money, goods or services given to or in respect of a candidate towards meeting election expenses.[40] But neither Ku nor Chan were “candidates” since, as Yeung VP noted, “they had not stood nominated as candidates and had never publicly declared an intention to stand as candidates”[41] and so did not come within the relevant statutory definition.[42]  The situation with which we are concerned – offering an advantage to non-candidates to stand – is specifically dealt with by section 7(1) and not by the provisions concerning election donations.

41.  Secondly, the Court of Appeal’s emphasis on “personal gain” appears to elide the concept of “advantage” with the concept of making an offer “corruptly”. 

42.  To constitute the section 7(1) offence, it must be proved both that the defendant offered an advantage and that he did so corruptly.  The Court of Appeal has centred on personal gain for the offeree. An offer to confer such a benefit no doubt constitutes an offer of an “advantage” within the definition set out above.[43]  Proof of an offer of personal gain would therefore establish the “advantage” ingredient of the offence.  But to assert that proof of an offer to confer a personal gain on the candidate establishes not merely the offer of an “advantage” but also that such personal gain establishes that the offer was “corruptly” made elides the two concepts of “advantage” and “corruptly”, treating them as having no meaning independent of one another.  It is therefore unsatisfying to interpret “corruptly” as meaning the conferment of “personal gain”.

43.  Thirdly, the offence as defined by section 7(1)(a) to (d) focuses on the conduct of the offeror and not on the benefit offered to or conferred on the offeree.  The Court of Appeal’s approach erroneously concentrates on the corruption involved in the offeree making a personal gain rather than on the offeror’s corrupt act of making the offer of an advantage which is the act prohibited by the statute.   If the offeror’s act of offering an advantage to a person as an inducement for standing, or not standing, as a candidate at the election has a tendency to subvert “fair, open and honest” elections, whether or not he thereby acquires personal gain, his offer is made “corruptly”, construing section 7(1) purposively in the light of section 3.

F.     The appellant’s submissions

44.  The appellant placed before the Court a volume of material in which the word “corruptly” had been used or discussed. This included religious as well as legal material. The thrust of his submission was that the Court should not apply a line of precedent stretching from 19^th Century English authority, particularly Cooper v Slade.[44]  He submitted that this case law was influenced by its feudal and religious origins and was inappropriate for application in contemporary Hong Kong, with its different cultural traditions.

45.  These submissions are of little assistance.  The task of the Court is to interpret the language adopted by the legislature in accordance with the well-established principles of statutory interpretation.  A word such as “corruptly” must take its colour from its context.  Case law on other legislation can provide guidance, but cannot determine the issue before us.  Non-legal texts, such as The Bible, are of limited, if any, relevance.

46.  The appellant drew attention to the different approaches to the meaning of “corruptly” adopted by the trial judge and the Court of Appeal.  The former treated the word as an “independent element” of the offence.  The latter treated the word as equivalent to “advantage…as an inducement.”  As discussed above, in this regard he was correct.  His submissions do not, however, suggest how that assists his case.

47.  The appellant relied on a number of references which focused on the obligations of candidates with respect to money.  He submitted that only candidates were “accountable” in this regard.  However, these sections were concerned with the distinct, comprehensive regime for “election donations”. The references have no relevance to that part of section 7 with which we are concerned, with its focus on an offer made to an actual or potential candidate by an inducer.

48.  The appellant also invoked an express statement of intent by the Administration as to the object of section 7(1), which appears in the Report of the Bills Committee on Elections (Corrupt and Illegal Conduct) Bill (“Report”)[45] in the following terms:

“The object of clause 7(1) is to prevent any persons or organizations from offering an advantage to candidates at an election so that, once elected, they will protect or promote the interests of these persons or organizations.”

49.  As he put it in oral submissions, the legislative intent was to confine corrupt conduct to the behaviour of an elected person who would “vote in favour of the sponsor”.  And that section 7(1) was directed to “behaviour of elected members, not targeted at the process of elections”.

50.  The first thing to note is that this cannot possibly be a complete statement of the “object” of section 7(1).  The section applies expressly to offers of advantage to induce a person not to stand as a candidate.  A person persuaded not to stand will not be in a position to vote at all.

51.  Reading the sentence relied on in its full context of paragraphs 30 and 31 of the Report leads to the conclusion that the use of the definite article in the sentence gives a completely wrong impression.

“Corrupt conduct

30. Corrupt conduct refers to conduct which involves intentional acts, and which if allowed would produce a direct effect on an election. Members have sought detailed clarifications from the Administration on whether certain conduct could be caught by the Bill. Specific examples have been quoted for illustration purpose.

Corrupt conduct to bribe candidates (clause 7)

31. Members have requested the Administration to explain the rationale for treating an act to induce a person to stand as a candidate at an election as corrupt conduct under clause 7(1).  They note that there is no similar provision in the UK Representation of the People Act 1983.  According to the Administration, section 8A(1A) of the CIPO was added in 1984 as suggested by an interdepartmental working Group after reviewing the arrangements for the 1982 District Board elections and 1983 Urban Council elections. The Working Group considered that as there were provisions aimed at preventing any person from bribing or intimidating any elector to vote or not to vote for a particular candidate, additional provisions should be made to prevent any person from bribing or intimidating any other person to stand as a candidate or to withdraw his candidate as well. The object of clause 7(1) is to prevent any persons or organizations from offering an advantage to candidates at an election so that, once elected, they will protect or promote the interests of these persons or organizations. The Administration considers that the clause is necessary to maintain clean and honest elections in Hong Kong.”

52.  As appears from the first sentence of paragraph 31 of the Report, the Administration was asked a question limited only to “inducing a person to stand”.  The sentence relied on, with its use of the definite article, was directed to that specific question. The word “the” in the sentence relied on, properly understood, should be read as “an” or preceded by the word “relevantly”.

53.  Furthermore, the full text of paragraph 30 of the Report makes it clear that this answer has nothing to do with the word “corruptly” with which this appeal is concerned. The Administration's answer relied on the reasoning of the Working Group for the previous Corrupt and Illegal Practices Ordinance, which was being superseded, to justify maintenance of the existing prohibition. The word “corruptly” did not appear in that Ordinance.

54.  The addition of the word “corruptly” in ECICO was, eventually, accepted by the Administration in response to a different question from members of the Bills Committee as set out at paragraphs 24-26 of the Report.

55.  The Court rejects the appellant's submissions that section 7(1) is concerned only with conduct of elected candidates.

G.     Conclusion and disposal

56.  On the Judge’s findings, the appellant’s conduct clearly fell within section 7(1).  He had as his objective, diverting votes from targeted candidates and thus sought to manipulate the outcome of the election against them.  He induced or sought to induce Ku to procure Chan to stand in part for their own personal gain rather than any proper purpose. Their candidature would not have been honest or open.  His offer of an advantage to Ku and Chan plainly had a tendency to undermine a fair, open and honest election.

57.  For the foregoing reasons we would dismiss this appeal.  Our answer to the question upon which leave to appeal was granted is set out in Section C above.

Mr Justice Fok PJ:

58.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Spigelman NPJ.

Mr Justice Cheung PJ:

59.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Spigelman NPJ.

Chief Justice Ma:

60.  The Court unanimously dismisses this appeal.