HKSAR v. FAN YUN SANG

HCMA908/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 908 OF 2009

(ON APPEAL FROM TMCC 4057 OF 2008)

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J U D G M E N T

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1. The appellant, Fan Yun Sang was convicted, after trial, of “Corrupt conduct with respect to voting at election”, contrary to sections 6(1)(a) and 16(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554; the particulars of which reads :

“FAN Yun-sang, on 6^th day of January, 2007, in Hong Kong, engaged in corrupt conduct at the 2007 Village Representative Election (Resident Representative) for Ho Pui Tsuen (‘the said election’) in that he voted in the said election knowing that he was not entitled to do so.”

2. He was sentenced to a Community Service Order for 100 hours.  He now appeals against the conviction. 

3. Although the hearing before the magistrate and the appeal before me were conducted in Chinese, in view of what I have to say in this appeal, I find it more appropriate to give my judgment in English. 

Issues involved

4. It is common ground that the appellant is an “indigenous inhabitant” (原居民) as defined under section 2 of the Village Representative Election Ordinance, Cap. 576.  

5. As an “indigenous inhabitant” the appellant is eligible to be registered as “an elector for an Indigenous Village or a Composite Indigenous Village” : section 15(5).  There is no residency requirement.  Residency is, however, required if a person wishes to be registered as an elector for an Existing Village : section 15(4).  Section 15(4) provides that a person is not eligible to be registered as “an elector for an Existing Village” unless the person is a “resident” of the village and had been a resident of the village for the 3 years immediately before the date of the application for registration (together with the further requirement that the person is an adult and a Hong Kong permanent resident). 

6. The definition section of Cap. 576 (section 2) defines resident as follows :

“’resident’ (居民), in relation to an Existing Village, means a person whose principal residential address is in the Village.”

7. As to the meaning of “principal residential address”, the same section says :

“‘principal residential address’ (主要住址), in relation to a person, means the address of the dwelling place at which the person resides and which constitutes the person's sole or main home.”

8. There being no real dispute that the appellant did register as “an elector for an Existing Village”, i.e. Ho Pei Tsuen (河背村) (“the said village”), and that he did vote at the “2007 Village Representative Election (Resident Representative)” for the said village, the issues involved were :

(1)     whether the appellant was not entitled to be registered as an elector for the said village as he was not a “resident” of the village; and that he had not been a “resident of the village for the 3 years immediately before the date of the application”; and

(2)     whether the appellant knew that he was not entitled to vote when he did vote. 

Prosecution case

9. The prosecution case, in a nutshell, was that the appellant had moved out of the said village after he and his wife purchased a flat in Yuen Long and he was no longer a “resident” of the village and had not been a resident of the village for the requisite period of 3 years.  The prosecution further contended that the appellant knowingly voted at the said 2007 election when he was not entitled to do so. 

Evidence before the magistrate

10. Evidence before the magistrate consisted of oral evidence from various government personnel involved in the said 2007 election, documentary evidence in relation to the appellant’s application to be registered as an elector for the said village and the purchase of the flat in Yuen Long, and a video-recorded interview between the appellant and two investigators of the Independent Commission Against Corruption (“ICAC”). 

11. According to an application form dated 16 March 2002 (P6) the appellant (or someone in the name of the appellant) applied to register as a voter in the “Village Representative Election — Resident Representative” and the address given was a house situated at the said village.  

12. By an assignment dated 19 April 2002 (P13), the appellant and his wife became the registered owners of a flat in “Sereno Verde” (蝶翠峯) in Yuen Long. 

13. An undated application form for “resident’s card” of “Sereno Verde” was adduced (P10), showing that the appellant and his family members were all listed as “residents”.  

14. Evidence show that a standard form letter to verify information provided (“verification letter”) (P2) was sent out to each voter. On the back of P2 reference was made, among other things, to the definition of “resident” and “principal residential address” as defined in Cap. 576.  This letter was accompanied by a standard form reply slip (also P2). 

15. A reply slip dated 5 February 2005 (P7) was sent back to the Electoral Registration Officer in the name of the appellant, confirming the “principal residential address” was a house inside the said village.  This reply slip carried the usual declaration that the information provided was true and accurate.  

16. A “Record of Staff deployed on Electoral Duties in the 2007 Village Representative Elections”, together with a copy of the “Register of Electors for Existing Villages for the 2007 Village Representative Election” for the said village was adduced in evidence (P8).  The appellant’s name was crossed out on the said copy of register of electors.  

17. None of the government personnel called was able to testify as to what was or was not said to the appellant at the time of the voting. Many of them referred to a “standard dialogue” (see P4).  Their evidence suggests that whenever a voter collected the ballot paper, the electoral officer had to administer the said “standard dialogue” to that voter.  

18. The contents of the “standard dialogue” were as follows :

“Please note that when a voter for the Resident Representative Election no longer reside in the Village for which he or she is registered, the voter is disqualified from voting in the election. It will be an offence in law if the voter casts the vote.”

19. Evidence from PW1, an liaison officer of the Home Affairs Department, showed that during the election period in 2007, broadcast was made via radio and television to remind voters that they would lose their voter qualification if they had moved away from the registered address.

20. Two investigators of ICAC (PW9 and PW10) interviewed the appellant on 9 June 2007, by way of a video-recorded interview (P18 with transcript P18A), in relation to a suspicion that the appellant had furnished false information. 

21. The defence objected to the admissibility of this video-recorded interview and the magistrate ruled it admissible after holding a voir dire. 

22. Looking at the contents of the video-recorded interview, it can be seen that there was never any admission by the appellant that he “knowingly” voted at the said election when he was not entitled to do so.  When told of the suspicion that he had furnished false information, the appellant claimed to have been under the misconception that by having an old property inside the village — which was not being left derelict (唔係荒廢) and which the appellant lived from time to time (都會有住), he was entitled to be a voter.  When the appellant referred to the 3-year-residency rule (which was apparently mentioned to him by an ICAC officer over the telephone prior to the interview), he in fact asked the investigators whether it meant that he had to live there “every single day for three years” before he could be entitled to vote (pages 17 and 18 of the Appeal Bundle).  

23. During this interview, the appellant also disclosed that he worked in the Mainland during weekdays and only returned to Hong Kong for the weekends.  He and his family moved into the flat at “Serena Verde” after he purchased it as it was more convenient to live there.  There was no specific allocation as to when he and his family would go to live at the house at the said village.  He did mention however that during summer vacation he and his family would live at the said village.  He also mentioned his wife going back to the house at the said village to clean up and to tend to the plants whenever she was free during weekdays.  When asked which of the two he considered to be his “principal residential address”, his immediate reply was the one at “Serena Verde”, but he then immediately added that the house at the said village might also be one.  

24. The appellant said he orally authorized a friend/fellow villager to make the application to become a voter for him.  As to particular (A) of the declaration on the back of the application form (P6), i.e. “The principle residential address entered above is my only or main residence in Hong Kong”, the appellant said his understanding was that since he still had a property at the said village; that he occasionally would go back there to live; and that he had not divorced himself (脫離) from that place, whether he lived there “for one night or ten nights”, he felt that he was still a resident of the said village.  He said it was his understanding in the past and he was therefore entitled to be a voter.  He only acknowledged there was a possibility of a mistake on his part after the ICAC investigators had spoken to him (P77-79 of the Appeal Bundle).  

25. After PW9 told him that principal residential address means the “only address” (which was in fact incorrect as the definition includes that of a “main home”); that a person must live at that address for the previous three years prior to registration; and that even when the appellant worked in the Mainland, the place he came back to live had to be the “only address” registered before he was qualified to vote (which, again, is incorrect), the appellant’s reaction was that he only then understood the position (P80-82 of the Appeal Bundle). 

26. There was no direct admission from the appellant that he signed either the application form (P6) or the reply slip (P7).  The appellant also said he had no recollection whether electoral officials at the polling station had reminded him of the 3-year-residency requirement when he cast his vote (P67 of the Appeal Bundle).  

The defence case

27. The appellant did not give evidence but called one witness (DW1) for the defence on the general issue.  In gist, DW1 testified that the appellant grew up in the said village and participated in the traditional functions at the village.  He also testified that he met the appellant and his family members from time to time, when he went to work or finished work.  

Defence stance during the trial

28. The line of attack adopted by the defence during the trial could be summarized this way :

(1)     the residency requirement was unconstitutional;

(2)     the Video-recorded Interview was obtained in breach of the appellant’s right and unfair to the appellant, thus should not be admitted;

(3)    the prosecution failed to prove that the appellant was not a “resident” of the said village; and

(4)     the prosecution failed to prove guilty knowledge on the part of the appellant when he cast his vote. 

29. Basically the magistrate ruled against the defence on all points raised and found the appellant guilty. 

Grounds of appeal

30. Apart from a few additional grounds, the general tenor of this appeal advanced by Mr Philip Wong, counsel for the appellant (who was also counsel for the defence below), was along a similar vein as that argued before the magistrate. 

31. The additional grounds can be summarized as follows :

(1)     the magistrate failed to give adequate reasons in court when he ruled the video-recorded interview admissible and rejected the defence argument on the constitutional point;

(2)     the written reasons he gave in the Statement of Findings in relation to the constitutional issue were inconsistent with his earlier oral ruling;

(3)     when giving himself a “good character” direction, the magistrate only considered the appellant’s propensity and not his credibility;

(4)     the magistrate erred in comparing the signature on the reply slip (P7) with the appellant’s signature on the acknowledgment form (P19) issued to him by the ICAC investigator to find that the appellant had signed the reply slip when there was no handwriting evidence from any expert; and

(5)     the magistrate erred in adopting the objective test propounded in the case of R v Ghosh [1982] QB 1053 to find the appellant guilty. 

32. Having considered the very detailed submissions by Mr Wong and Ms Kathie Cheung, counsel for the respondent, I am of the view that it is not necessary for me to decide each and every point raised to dispose of this appeal. 

33. I am of the view that even assuming :

(a)      that the residency requirement was not unconstitutional;

(b)     that the video-recorded interview was correctly admitted; and

(c)     that the house at the said village was not the appellant’s principal residential address so he was not a resident and was not entitled to vote,

I have grave misgivings on the magistrate’s findings that the appellant had the requisite guilty mind. 

34. I have already set out the response of the appellant during the video-recorded interview.  It is quite clear that at no time did the appellant make any admission that he knew he was not entitled to vote.  On the contrary, he kept on saying that he thought or felt that he was entitled to vote as the house was not left derelict and he had gone back to live from time to time.  

35. As a fact-finder, the magistrate has to decide what weight, if any, he would place on the explanation given by the appellant during the video-recorded interview, bearing in mind that the appellant’s assertion was not tested by cross-examination : see R v Sharp [1988] 1 WLR 7 as approved by the Court of Final Appeal in Li Defan v HKSAR (2002) 5 HKCFAR 320.

36. There is no requirement that a professional magistrate must state in the Statement of Findings that he has given himself the good character direction.  In fact, the Court of Final Appeal has concluded it was not necessary to impose on trial judges the “Vye and Aziz regime” as such regime has not been shown to work well in other jurisdictions : see Tang Siu Man v HKSAR (No. 2) [1998] HKCFAR 107. 

37. What concerns me here is that the magistrate has quite deliberately left out the credibility direction and only mentioned the propensity direction when he considered the good character of the appellant; when, in this case, the appellant’s credibility is of vital importance. 

38. As no explanation was given by the magistrate, I can only assume that came as a result of the appellant’s election not to give evidence in court.  

39. In the present case, to apply the wordings in the relevant direction (Direction No. 37) of the “Specimen Directions in Jury Trials” (December 2009 issue), in considering the appellant’s explanation and what weight the magistrate should give it, the magistrate should bear in mind that it was made by a person of good character, and take that into account when deciding whether he can believe it. 

40. The magistrate has failed to properly evaluate the explanation given by the appellant during the video-recorded interview when he only considered the appellant’s propensity to commit an offence, and not his credibility.  

41. There was no direct evidence that the appellant was aware of the so-called “standard dialogue”.  None of the electoral officers gave direct evidence that he or she had read out the said dialogue to the appellant at the polling station.  

42. There was no admission by the appellant that he signed the reply slip (P7).  The magistrate compared the signature on P7 with the appellant’s signature on P19 to come to the conclusion that the two signatures were similar, when he himself acknowledged that there was no expert handwriting evidence in that respect.  He then concluded he “believed” the appellant had signed P7 and had notice of the contents of the verification letter (P2), including the definition of “resident” and “principal residential address”. 

43. Having said that, the magistrate continued to consider the evidence on the basis that the appellant did not have notice of the contents of P2.  He referred to the measures adopted by the Home Affairs Department in reminding voters that they could not vote if they had “moved away” and then he “borrowed” the objective test in Ghosh to come to the conclusion that the appellant must have known he was not entitled to vote when he cast his vote. 

44. It is clear that the magistrate has erred in making a comparison of the two signatures in the absence of handwriting expert evidence (as conceded by Ms Cheung for the respondent) (see also HKSAR v Cheng Chi Wai (鄭志偉),HCMA1046/2004).  He then relied on the conclusion of his own comparison to make the finding that he “believed” the appellant had signed P6 and therefore had notice of the contents of P2.  Although he later continued to consider the evidence on the basis that the appellant did not have notice of P2, the damage is, in my view, already done.  

45. While a magistrate is entitled to draw inferences based on facts admitted, or he found proved, or both; the magistrate’s reference to the objective test in Ghosh, which has no relevance to the charge faced by the appellant, does cause me some concern as the prosecution has to prove, beyond reasonable doubt, that the appellant subjectively knew that he was not entitled to vote when he did vote.  

46. As the magistrate erred in so many respects as indicated above, he has failed to properly evaluate the evidence so as to consider whether the prosecution had discharged its duty in proving, beyond a reasonable doubt, that the appellant knew he was not entitled to vote when he voted.  

47. For these reasons, the verdict was unsafe and unsatisfactory and the appeal against conviction must succeed. 

48. As the appeal is successful on this rather narrower ground, there is no need for me to decide on all the other points raised. 

49. I would, however, like to make some observation as to the effect of the Court of Appeal decision in Secretary for Justice v Ocean Technology Limited and others, HCMA173/2008 in view of the comments made by the magistrate during the trial. 

50. Judging from the exchange between the magistrate and Mr Wong — when Mr Wong tried to advance his arguments on the constitutional issue — it seems to me that the magistrate was under the impression that should there be such a legal challenge, the proper venue is to go for a Judicial Review — citing Ocean Technology in support.  

51. I would point out, categorically, that Ocean Technology is not an authority for the proposition that whenever a magistrate is faced with a constitutional challenge, such challenge is to be heard only by way of a Judicial Review.  An accused may always challenge the constitutionality of the offence itself : see paras. 96 and 123 of the judgment.  

52. In Secretary for Justice v Richard Ethan Latker, HCMA521/2008, Stock JA re-affirmed the position (at para. 163) :

“The decision in Ocean Technology is not to be read as precluding constitutional challenges to offence-creating provisions as part of the defence to a charge alleging the commission of that offence.  Indeed, the decision in Ocean Technology did just that: it addressed the constitutionality of the offence-creating provision but in so doing concluded that upon a proper construction of the Ordinance in question, the validity of the licensing scheme was not a constituent part of that offence. …”

53. The proper approach to be adopted by the court, when faced with such a challenge, was set out by Ma CHCJ in the Richard Latker case (at para. 19) :

“Where, as in the present case, a constitutional challenge is mounted in relation to a criminal offence, the approach of the courts, as shown by the cases, is in general as follows : -

(1)   First, the relevant offence (whether or not contained in statutory form) must be analyzed to see whether a constitutional right (to be found in the Basic Law or the Bill or Rights) is engaged in the first place.  If no such right is engaged, that is the end of the challenge.

(2)   Secondly, on the assumption a right or rights are engaged, the next inquiry then is to see whether the relevant right or rights have been infringed.  Again, if the answer is in the negative, this is also the end of any constitutional challenge.

(3)   Thirdly, if, however, there has been an infringement, the court then has to examine whether such infringement can be justified.  Where a criminal offence is involved, the burden is on the prosecution (the Secretary for Justice) to demonstrate that the infringement of constitutionally protected rights is justified (in a non-criminal context, usually in Judicial Review proceedings, the burden will be on the relevant decision maker which may or may not be the Government).

(4)   Where justification cannot be shown, the relevant offence will not survive a constitutional challenge.”

54. Applying these steps to the present case, when one analyzes the relevant offence : that the appellant voted in the said election knowing that he was not entitled to do so, thus engaged in corrupt conduct at the said election, it is hard to see how a constitutional right is not engaged.  

55. In order to prove its case, the prosecution has to prove that the appellant was not a resident of the said village, nor was he a resident for the 3 years immediately preceding the date of registration — as defined in Cap. 576 — thus he was not entitled to vote (leaving aside for the moment the issue on guilty knowledge).  The appellant’s constitutional right to liberty of movement (see Art. 8 of the Hong Kong Bill of Rights) and his right to participate in public life (see Art. 21 of the Bill of Rights) are thus, in my view, engaged. 

56. I do not propose to make any findings as to whether there was any infringement, and if so, whether such infringement was justified.  I would just remind magistrates of what Ma CHCJ said on the topic of justification (at paras. 20 and 21) :

“20. The following additional points on justification of an infringement of constitutional protected rights should be made : -

(1)   Some rights are absolute, not capable of any derogation.  Where, therefore, such rights are infringed, no justification for their derogation or qualification can ever be shown.  The right that no one shall be arbitrarily deprived of his life (Article 2(1) of the Bill of Rights) or that no one shall be held in slavery (Article 4(1) of the Bill of Rights) are perhaps ready examples of this.  I shall have more to say about this aspect below.

(2)   Where, however, the constitutional right is not absolute (meaning that derogation or qualification is possible in certain circumstances), the court’s approach is to see whether the circumstances of the case will allow a derogation or qualification.  Here, the court applies what is known as ‘proportionality test’.  If this test is satisfied, then the justification of an infringement of the constitutional right in question will be demonstrated.

(3)   The proportionality test has been formulated by the Court of Final Appeal as follows : -

(a)   The derogation from (or, as it is sometimes, referred to in the cases, the ‘restriction to’ or the ‘encroachment on’) the constitutional right must be shown, first, to be rationally connected to one or more legitimate purposes or aims.  There are two steps here : first, the identification of a legitimate purpose or aim (the societal justification) and secondly, the determination of a rational connection between the relevant restriction or qualification and that purpose or aim.

(b)   Next, it must also be shown that the derogation is no more than is necessary to accomplish the legitimate purposes or aims in question.

See, for example, the approach of the Court of Final Appeal in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, at 593 (paragraph 21).  This was a case brought to our attention by the Respondent but there are many others.

(4)   The burden, I would reiterate, is on the prosecution to satisfy this test and therefore provide the necessary justification.  Another facet of this burden in many cases (and this is relevant in the present : see paragraph 13(4)(a) above) is the obligation to provide evidence to the court to advance any argument based on legitimate purposes : - see, for example, Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524, at 537-8 (paragraph 24).  However, whether or not evidence is actually required in any given case must naturally depend on the circumstances.  The point, as articulated by Stock JA in Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) [2007] 4 HKC 446, at 453-4 (paragraph 18)(the same case at an earlier stage when additional evidence was sought to be adduced prior to the appeal proper), is really this : -

‘18. Where there is an infringement on the freedom of expression (or, for that matter, on any other fundamental freedom) but it is argued that the infringement is lawful, it is for the body imposing the restriction – in this case, the Council – to show a justifiable societal objective for the restriction, and that the restriction goes no further than is necessary to achieve that objective.  It is difficult, if not impossible, to envisage an infringement that could be justified without a clearly explained rationale, even though the depth of the explanation required will vary according to the nature of the restriction and its context.’

21.  Where a constitutional right is capable of derogation or qualification, the court must closely examine the circumstances to see whether such derogation or qualification can be justified in the application of the proportionality test.”

57. For the reasons I have already indicated, the appeal is allowed and the conviction is quashed.