R. v. CHIH WAN WAN, VIVIAN and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 190 OF 1996

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J U D G M E N T

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1. Each of the Appellants were convicted on 21st November 1995 of two charges of offering an advantage to a person, contrary to s.5(1)(a) and s.4 of the Corrupt and Illegal Practices Ordinance, Cap.288 and the 1st Appellant was further convicted of one charge of failing to declare all election expenses and donations in her return of election expenses and donations, contrary to ss.29(2) and (3) of the Corrupt and Illegal Practices Ordinance, Cap.288.

2. Many of the facts of the prosecution case were not in dispute. The 1st Appellant was a candidate in the District Board election to be held in September 1994 and both of the Appellants campaigned in the Ap Lei Chau area of Aberdeen. The 1st Appellant was supported by four out of six of the Mutual Aid Committees on Ap Lei Chau whilst the other two Mutual Aid Committees supported other candidates.

3. Some time prior to the election but close to it, those four Mutual Aid Committees together with two other organisations in the Ap Lei Chau area put up posters in the district advertising free Chinese opera tickets and mooncakes would be given to the elderly in the neighbourhood. It is a reasonable inference from all the facts that the organisations which put their names to this advertisement were all organisations which supported the 1st Appellant in her candidacy to the District Board.

4. On 17th September 1994, a table was set up outside a restaurant in the Ap Lei Chau area and the elderly of the district commenced to queue up to file pass that table. It is significant that this area was one set aside by the election authorities for the display of posters and for canvassing by the candidates. Indeed another candidate was canvassing adjacent to the queue which formed to receive the mooncakes which are the subject of this matter and it was a campaign worker of that candidate who complained to the ICAC and who gave evidence of the complaint in this trial.

5. At some time prior to mooncakes being distributed from that table, papers, which were representations of a ballot card for the District Board elections showing how a voter would vote for the 1st Appellant, were handed out to those in the queue. Mooncakes were set out on the table and the distribution commenced.

6. A complaint was made to the ICAC prior to the distribution of the mooncakes. An officer of the ICAC went to the vicinity with a concealed video camera accompanied by a fellow worker who had a concealed tape recorder to record sounds. I have had the benefit of watching the video film taken of the events that occurred that day. It is obvious from the film that a queue of elderly people progressed towards the table where the mooncakes were laid out, many of them holding the "How to Vote" paper. As they approached the point some 20 feet from the table, both the Appellants stood in a position where each of the queue had to pass them. At that point, a man took from members of the queue who had one the "How to Vote" paper and the 1st Appellant handed a Chinese opera ticket to each of the members of the queue who passed them. In the video tape it appeared that this was done before the giving of an opera ticket but the evidence of PW8 was that the paper was taken after the opera tickets were handed out.

7. It is not in dispute that the tickets for the opera were free and that the opera was to take place some time after the election. There is no suggestion that the opera tickets were in any way an advantage. Each member of the queue then moved on to the table where the mooncakes were laid out, and each received one mooncake from those distributing them at that point.

8. The only evidence as to the identity of the persons distributing mooncakes at that table comes from the sound of the voice of the 2nd Appellant on the video tape which was played and the transcript of which was supplied to both the magistrate and to myself. From that transcript, it is apparent that the persons actually distributing the mooncake were members of the Mutual Aid Committee.

9. Section 5(1)(a) of the Corrupt and Illegal Practices Ordinance reads :

"(1) No person shall in Hong Kong or elsewhere without lawful authority or reasonable excuse

(a) offer any advantage to a person or to any person on behalf of another person as an inducement to or award for or otherwise on account of that person's voting or refraining from voting or having voted or having refrained from voting in an election."

10. The first matter that fell to be considered by the learned magistrate was whether the Appellants on trial offered an advantage to any person. The advantage that they were said to have offered, in the particulars of each offence, was the gift of a mooncake.

11. It is clear from the evidence at the trial that the mooncakes given to the elderly of the Ap Lei Chau district on this occasion were supplied by the four Mutual Aid Committees and the two other organisations who had put their names to the advertisement and that the mooncakes were actually distributed by workers from the Mutual Aid Committees. It cannot, on the evidence, be said that either Appellant physically offered a mooncake to each of those persons referred to in the charges. It was therefore for the Crown to establish beyond reasonable doubt that the mooncakes offered by the organisations who distributed them were offered for and on behalf of the candidate and that the 2nd Appellant was a party to that offer.

12. The relationship between the 1st Appellant, the candidate, and the Mutual Aid Committees and the two other organisations referred to in the advertisement for the distribution of mooncakes is by no means clear. It is clear that the 1st Appellant had some support from those organisations and there is evidence that those organisations would have supported her by arranging home visits so that she could have been introduced by those organisations to the voters of that electoral district. There is some evidence that the 1st Appellant attended some meetings of Mutual Aid Committees.

13. What is not present in the case for the prosecution is any evidence that there was an agreement between the 1st Appellant and the 2nd Appellant and those organisations distributing the mooncakes that they should be distributed for and on behalf of the Appellant.

14. It was argued by Mr Liu for the prosecution that the presence of a candidate canvassing votes in the vicinity of the distribution of gifts to the public was in itself sufficient evidence without more to make out this offence. I do not agree. To make up this offence, there has to be the offer of an advantage and that offer must either be by the candidate or by a person on behalf of that candidate. It is not, in my view, sufficient to constitute the offence for the candidate to take an opportunity that presents itself when a crowd gathers to receive free gifts or for some other purpose and canvasses that group on behalf of her candidacy. There must be an intention to offer the advantage and there must be an offer by the candidate or by a person acting on behalf of that candidate.

15. The Magistrate in dealing with this issue in his findings said :

"Having viewed the evidence of the video now on four occasions and having reviewed all of the evidence and Counsel's submissions on fact and law, I find that it had been proved beyond reasonable doubt that on the afternoon of September 17th both defendants joined in a corrupt distribution of mooncakes without lawful authority or reasonable excuse, which was intended to induce or influence persons who were perceived as likely voters at the following days election."

16. With respect to the Learned Magistrate he does not seem to have directed his mind to the nexus which must be proved to have existed between the item offered and the two Appellants to prove it was they who was making the offer. Association as to time and place between canvassing and the handing out of the mooncakes could make out the offence if it were also proved directly or by inference the Appellants provided the mooncakes or they were provided on behalf of the Appellants. Other than by proximity and the support of the 1st Appellant as a candidate no evidence was offered to prove the Appellants had the capacity to offer those mooncakes either directly or indirectly.

17. In fact the evidence was to the effect that such a distribution had occurred in earlier years and the inference was the Appellants were afforded an opportunity to canvass rather than they were themselves or through others giving the mooncakes.

18. Clearly the Learned Magistrate inferred from the distribution and collection of the "How to Vote" sheets and the distribution of Chinese Opera tickets that the Appellants were parties to the offer of the mooncakes even though the mooncakes were not supplied nor handed out by the Appellants. The Magistrate however did not deal with the evidence on the video tape that shows the 2nd Appellant instructed those without tickets also to line up for distribution of the mooncakes. If the distribution of the mooncakes was in part to those who did not receive " How to Vote" papers or Chinese Opera tickets then a strong inference exists that mooncakes were to be given without condition to all elderly persons who presented themselves. Where more than one reasonable inference exists on the facts that in favour of the Accused must be drawn. This is reinforced by the evidence of the three elderly ladies who gave evidence of their receipt of mooncakes. Each of them testified that they did not have to hold anything nor give anything to the workers before opera tickets or mooncakes were given to them. Indeed each of them testified they were illiterate and none gave evidence that they considered the distribution of mooncake related in any way to the 1st Appellant or to her election.

19. Their is insufficient evidence either directly or by inference to be sure that it was the Appellants who offered the mooncakes on that day or that they were offered on behalf of the 1st Appellant with the 2nd Appelannt being a party to that offering.

20. In respect of the charge of failing to declare all election expenses in respect of the 1st Appellant one of the elements of that offence must be proof that the election expenses were :

" incurred or to be incurred, whether before, during or after that election, by a candidate and by any other person on the candidate's behalf on account of or in respect of the conduct or management of that election or for the purpose of promoting or procuring the election of that candidate at that election." (Section 2 Corrupt and Illegal Practices Ord. Cap 288)

21. As I have already found their is insufficient evidence to prove directly that the mooncakes were an expense of the 1st Appellant or by another person on her behalf and further that it is not the only reasonable inference that can be drawn from all the evidence that it was such an expense of the 1st Applicant or incurred on her behalf.

22. Each appeal by each Appellant is allowed, each conviction is quashed and each sentence set aside.