THE QUEEN v. HA SIU KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 613/89

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BETWEEN

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J U D G M E N T

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1. The Appellant Pleaded not guilty to five charges, each alleging the commission of the offence of an illegal practice contrary to s.10(1) of the Corrupt and Illegal Practices Ordinance, Cap. 288 ("the Ordinance"). By s.10(1) any person who contravenes the provisions of s.16(1), 19(1) or (2) is "deemed to be guilty of an illegal practice" and is liable to a fine and imprisonment. Two of the charges alleged that the illegal practice was publishing a false statement concerning a candidate, a contravention of s.16(1); one alleged that was causing election printed chatters to be printed without particulars and another that it was causing election printed matters to be distributed or posted up without particulars, each being a contravention of s.19(1); and the fifth alleged that it was failing to deposit copies address, bill, notice or placard with the returning officer, a contravention of s.19(2).

2. The illegal practice constituted by a contravention of s.16(1) is the publishing, before or during an election for the purpose of affecting the return of a candidate at the election, of a false statement of fact in relation to the personal character, qualifications or conduct of a candidate at the election. The particulars of the s.16(1) contraventions were that the appellant on 7th March, 1988 in relation to the A charge and on 8th March, 1988 in relation to the B charge, both dates being before an imminent District Board Election, published a false statement in relation to the personal character or conduct of Mr. TAI Kwok-kiu (PW1), a candidate at that election for the purpose of affecting his return at the election. The false statement was alleged to be that PW1 had attended only two meetings of the Sham Shui Po District Board during a period when he had in fact attended 12.

3. The illegal practice constituted by a contravention of s.19(1) is the causing to be printed; distributed or posted up any printed matter having reference to an election which does not bear, in English or Chinese, particulars concerning the name and address of the printer, the date of printing and the number of copies printed. The particulars in charge C were that on or about 8th March, 1988 the Appellant caused the printing of a leaflet having reference to the 1988 District Board election which did not bear those particulars. The particulars of charge D were that on or about the same date he cause leaflets having reference to the same election and lacking the same particulars to be distributed or posted up.

4. The illegal practice constituted by a contravention of s.19(2) is the failure to deposit with the returning officer two copies of printed matter having reference to the election within 7 days after its publication, distribution or posting up. The particulars in charge E were that on or about the 16th March, 1988 he failed to deposit two copies of the election leaflets he had caused to be published, distributed or posted up.

5. The background to the charges begins with the publication on 12th January, 1988 by a leading Chinese newspaper of a list of attendances of members of the Shan Shui Po District Board. The list was accurate except as to the details of PW1's attendances. Instead of crediting him with 12 attendances the list credited him with only 2. The newspaper, on learning of the error, printed a correction the following day. In the first week of March, however, when the campaign in the Pak Tin constituency of Sham Shui Po District was drawing to a close, a pamphlet carrying a photocopy of the original erroneous list was distributed in the constituency. A copy of this pamphlet was put in evidence by the Defence but it became known as Ex. P24. This was admittedly produced by the Appellant and its publication forms the basis of the allegations in charge A. Another pamphlet, also containing a photocopy of the erroneous newspaper list, was published containing comments made by another candidate, PW6. This was tendered by the Prosecution as Ex. P7. The Appellant denied all knowledge of this pamphlet, the publication of which forms the basis of the allegations in charge B.

6. There was no contravention of s.19 in respect of P24. The alleged contraventions of s.19 in respect of P7 form the basis of charges C, D and E.

7. The learned magistrate found the Appellant guilty in respect of all five contraventions and convicted him. The Appellant now appeals against all convictions relying on seven main grounds of appeal.

8. At the conclusion of the hearing relating to those seven grounds I adjourned to consider counsel's submissions. Whilst I had the matter under consideration I read the annotations in Halsbury's Statutes of England; 3rd ed., Vol. 11 at p.633, regarding s.91 of the Representation of the People Act. As s.91 is, for all practical purposes, identical with s.16 of the Ordinance and one annotation cited cases in support of the proposition that the section did not apply to a candidate's public acts or conduct I decided to draw the attention of the parties to my discovery. Although the matter had not been argued either before the learned magistrate or before me, I decided that this should be done because, if s.16 were to be similarly construed, then it could be that the Appellant committed no offence even if a court accepted all the Prosecution evidence. Three of the four cases cited in Halsbury were not available in Hong Kong as they are reported only in the O'Malley and Hardcastle Election Cases Reports. At the request of both counsel I set the Appeal down for further argument. When it came on for further submissions counsel had obtained and so were able to put before me copies of the full reports of the decisions referred to in Halsbury.

9. The only difference in the wording of the provision under the Act and that of s.16 of the Ordinance is a difference introduced in 1984 when the word "qualifications" was inserted in s.16 so as to, make it an; illegal practice to make a false statement in relation to the "personal character, qualifications or conduct of a candidate". That amendment did not, however, remove the effect of the adjective "personal" had led the courts to hold, when interpreting the similar provision in the Act, that the provision did not apply to a candidate's public acts or conduct. The charges against the Appellant were likewise limited to false statements "in relation to the personal character or conduct of [PW1]".

10. In Bayley v. Edmunds ((1895) 11 T.L.R. 537 C.A.) Lord Esher said that the provision "was only intended to strike at something which was derogatory to personal character".

11. In The Cockermouth Division of the Country of Cumberland ((1901) 5 O'M. & H. 155) Darling, J., said (at p.221):-

"What the Act forbids is this: You shall not make or publish any false statement of fact in relation to the bersonal character or conduct of such candidate; if you do, it is an illegal practice. It is not an offence to say something which may be severe about another person, nor which may be unjustifiable, nor which may be, derogatory, unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great distinction to be drawn between a false statement of fact, which affects the personal character or conduct of the candidate and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind this statute would simply have prohibited at election times all sorts of criticism which was not strictly true, relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct:"

In The Attercliffe Division of the City of Sheffield ((1906) 5 O'M. & H. 218) Grantham, J., said (at p.221):-

"It is a great pity that in elections at the present time so many false statements are made, and that votes are obtained in that way. But we cannot go beyond the language of the Act, which is limited to false statements made with reference to the personal character or conduct of the candidate, leaving him therefore to be still exposed to unfriendly attacks with regard to his political view. But if his opponent goes beyond that and makes false statements of facts with regard to the private conduct of his rival, then the Legislature has said that it is an illegal practice ..."

In the same case Walton, J., said (at p.223):-

"In this case there is no statement in the nature of the disclosure of some private scandal in what one might call the secret life of the candidate. [The material complained of] relater[s] obviously to public acts and to public conduct only."

In The North Division of the County of Louth (6 O'M. & H. 103) Gibson, J., said:-

"The word 'personal' not doubt in reference to character and conduct is restrictive, but I doubt if the sole antithesis is 'political'. 'Public', or any other position to which comment and criticism would apply, would equally well fit the distinction ... (p.157).

As the Lord Chief Baron observed in O'Shee's Case, there is no sharp dividing line separating what is personal from what is political or otherwise. The real question is what is the true meaning of the letter and the leaflet, considering the occasion of publication, the persons publishing, the person attacked, the readers intended to be addressed ...(p.158).

... the documents contained false statements of fact in relation to the personal character and conduct of Mr. Healy, his honour, rectitude, patriotism. The imputation on him is not on his political action but on his dishonourably and unworthily obtaining Government posts for his relations under cover and by virtue of his seat in Parliament or otherwise .....

A politician for his public conduct may be criticised, held up to obloquy: for that the statute gives no redress; but when the man beneath the politician has his honour, veracity, and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations." (pp.162-3).

In the same case madden, J., said:-

"Reading the section I find that the false statement must relate to personal character or conduct, 'personal' as distinguished from 'public', and it must be one of fact. In the present instance the contrast is between 'personal' and 'political', but there are many departments of public life other than political, and the statute is applicable to them all.

A public man in his candidature, as in Pariliament, is liable to misrepresentations as to his public character or conduct, and it can be readily understood why the Legislature has not thought fit to protect either the constituency or the candidate against misrepresentations of this kind. It has drawn the line of defence at a false statement of fact in relation to personal character or conduct ... (p.166)

A false statement of fact relating to personal conduct may be used for the Purpose of representing a candidate as guilty of either private immorality or public immorality, political or otherwise, and it is in either case equally within the statute." (p.171).

12. That body of judicial opinion as to the type of false statement proscribed by a provision such as s.16 was formed long before the Ordinance was enacted in 1955. The Legislature must, therefore, be taken to have had that same type of false statement in mind when enacting s.16(1) in identical terms. The addition of "qualifications" in 1984 did not affect the connotation of 'personal' recognised before and at the tine the Ordinance was enacted. To be contraventions of s.16(1) false statements must be those which assail the honour, veracity or morality of the man beneath the public figure.

13. The false statements in this case belittled the contribution made by PW1 as a public figure but they did not even begin to hint at any form of personal wrongdoing. They were not therefore contraventions of s.16 and the Appellant could not be found guilty on either charges A or B.

14. It was common ground that a mass photocopying of the erroneous report was done by a photocopying business on the instructions of Miss Chan (PW7) who was one of the paid assistants the Appellant engaged for the purpose of his election campaign. It was her evidence that the Appellant instructed her to have the photocopying done and thereafter posted on walls within the constituency. It is common ground that in relation to Ex. P7 there were the contraventions of s.19(l) and (2) alleged in charges C, D and E.

15. The Appellant's evidence was that he had not given instructions either to have P7 produced by photocopy or to have the resultant photocopies published, etc.

16. The first four grounds of appeal deal with Ex. P24 which is now of no concern in view of what I have decided in relation to charges A and B. There was, however, one matter referred to in those grounds which I will need to come back to after dealing with the grounds which complain about the learned magistrate's findings in relation to P7 and charges C, D and E.

17. Ground 5 contains 5 main grounds of complaint regarding those findings. The first is that the learned magistrate, having found a number of weaknesses in PW7 both as a person and as a witness, and having found that another important witness (PW6) had lied in the witness box, "was wrong to reject the reasonable possibility that PW7 had photocopied P7 at the direction of PW6, especial when he was satisfied by the evidence of two defence witnesses that PW7 had said things against the [Appellant]".

18. PW6 was also a candidate at the election. He, PW1 and the Appellant were contesting the election to fill two vacancies. The only candidate who could be adversely affected by publication of the erroneous list was PW1 because PW6, not having been a member did not appear on the list, and the Appellant's impressive attendance record was accurately recorded. PW6's evidence was that at sometime before voting day the Appellant showed him; the newspaper report containing the erroneous figure regarding PW1's attendances and asked for his comments. PW6 said that he wrote his comments on the paper containing the list, returned the document to the Appellant and left it with him. P7, as a photocopy of, that document, contains PW6's handwritten comments.

19. The Appellant in his evidence denied having even spoken to PW6 during the campaign and said the incident described by PW6 had never happened.

20. PW7 said that the Appellant paid for the photocopying and the person who did the photocopying said that he was asked, to and did photocopy 10,000 copies for which he was paid $400 by PW7 to whom he issued a receipt for the payment.

The learned magistrate in his Statement of Findings said:-

"I ... rejected totally the idea that there was any possibility of [PW7] haying P7 photocopied at the behest of [PW6]. I found that proposition ludicrous. Although I thought she was a girl of fickle loyalty, I was also convinced she was lazy. She clearly took up this part-time job to supplement her income. She clearly, on the defence case, did not avail herself of all the opportunities [the Appellant] gave her to do this. I simply could not envisage her working for a further candidate - whether for reward or not. Whatever reservations I had about her evidence, both on its own and in the context of the other evidence, there was nothing anywhere to suggest she did this for [PW6]."

21. Whatever PW7's motivation in arranging the pass production and distribution of P7, it was an act calculated to harm PW1. By the very nature of the election, any act which helped to bring about the defeat of PW1 necessarily assisted the success of both PW6 and the Appellant. On the basis of the learned magistrate's assessment of PW7 it would be an affront to common sense to suggest that she was motivated in her dealings with P7 by hostility towards the Appellant. I cannot see how it can be sensibly said that the learned magistrate was wrong to conclude as he did.

22. The next complaint is that he misdirected himself by not taking into account certain questions put to the Appellant by the ICAC during their investigation which led to the laying of the charges. The suggestion was that because of certain questions put there was a "possible inconsistency" between PW7's statements to the ICAC and her evidence in court. The answer to this complaint is that a magistrate is concerned with revealed rather than speculative inconsistency. When inconsistent is demonstrated the magistrate considers it in the light of any explanation for its existence. Apparant inconsistent statements do not by themselves impair credibility.  Explanation may show that the apparent is not real or, if real, that the cause of the inconsistency does not impair credibility. What impairs credibility are proved inconsistent statements for which no acceptable explanation consistent with credibility has been offered. If there had been anything before the learned magistrate to show inconsistency this ground would not have needed the prop of "probable inconsistency". I find it to be a ground of no substance.

The next ground reads:-

"In view of the learned magistrate's finding that PW6 was either solely responsible for the publication of Exhibit 7 or he did so in conspiracy with the Appellant, the prosecution has failed to prove that:

(i) When PW7 went to pet the same photostated she did so on the Appellant's orders not on PW6's orders.

(ii) Generally, there was a conspiracy between the Appellant and the other opposing candidate, PW6."

23. What the learned magistrate actually said when he made "the finding" referred to eras as follows:-

"... I am certain that [PW6] told deliberate lies in the course of his evidence. He said that the written characters he passed over to [the Appellant] were 'comments'. That was a euphemism. They were clearly much more than that. They were slogans the only purpose of which was to draw any reader's attention to the material. [PW6's] explanation for these 'comments' was patently false. When I weighed up the evidence I considered that there were 2 possible explanations for his lying. Either, as suggested by Mr. Bernacchi, he was entirely responsible for the P6 [sic] leaflet or he conspired with [the Appellant] to have this leaflet produced. In either case he was deliberately lying to protect himself from the consequences of whatever was his degree of participation."

24. In that passage the learned magistrate was not stating his finding as to who instructed PW7 to photocopy the document. He was setting out the reasoning which supported his findings regarding the credibility of PW6. He goes on from there to say that, "however one looked at him", PW6 had to be treated as an accomplice. He gave himself the required warning, concluded that there was no corroboration of him and decided that the only part of his evidence he could act upon was that PW6 had in fact written the "comments" which appear on P7. He was not prepared to act on PW6's evidence about how P7 came into the hands of the Appellant. It was on the basis of other evidence that he found that the Appellant had instructed PW7 to have P7 produced and publicly displayed. There is nothing in this ground to support a contention that the Prosecution failed to prove that the Appellant instructed PW7 to have the leaflet produced. To say that the Prosecution failed to prove a conspiracy is simply to say that the Prosecution did not grove a matter which was not required to be proved. The conspiracy is mentioned by the learned magistrate as one of two "possible explanations" of PW6's conduct in the witness box. Because either "possibility" offered an explanation for his conduct the learned magistrate found it wise to treat him as an accomplice with all that that entails. There is no substance in the contention that the Prosecution failed to prove such a conspiracy.

25. The next complaint is, in effect, that the learned magistrate should have acted as if a suggestion, the truth of which was denied by a witness in cross-examination, was nevertheless true. It had been suggested in cross-examination of PW7 that she had given a statement to PW1 or his solicitors outlining the Appellant's role in the production and public display of P7. This she denied. Before closing his case the prosecutor indicated that he was going to call the solicitor to rebut the suggestion. There was then an adjournment.  On resumption the prosecutor closed his case without seeking to call the solicitor.

26. The submission on behalf of the Appellant on this ground is that (i) the Petition drawn up by PW1's solicitors alleging election irregularities in connection with P7 contains allegations of the Appellant's role which could only have come from PW7; (ii) no solicitor would put such allegations in a petition without having specific instructions; (iii) PW7 must therefore have made such a statement to PW1's solicitors; (iv) in those circumstances the learned magistrate misdirected himself in law and in fact in not taking this point into consideration when deciding upon the truthfulness of PW7's evidence".

27. The learned magistrate dealt with this matter at some length in his Statement of Findings on pp. 19-20. It is sufficient for me to observe that he was able to say, on the basis of PW7's demeanour, that he "was totally satisfied that her reaction was that of an honest witness". That conclusion by the "seeing and hearing judge" is one with which I cannot interfere.

28. The final complaint under this ground is that the learned magistrate; having found a number of inconsistencies and inaccuracies in relation to PW7's evidence of the photocopying, he was wrong to rely on her evidence in finding that the Appellant caused it to be printed.

29. The matters listed relate to the date, the sex of the person to whom she spoke at the shop, the number of copies made, the manner of payment and whether it was day or night when she went to the shop.

Dealing with those matters the learned magistrate said:-

"As to the questions raised by [the Appellant's] attendance book about the date on which the photocopying took place, I have said she was a careless witness. She was being asked to recall a day of the week many months later. I do not consider that the fact that she hazarded certain suggestions as to the date makes her evidence as to her part in the production of P7 unreliable in essentials.

The various discrepancies between her evidence and that of the photocopier PW13 as to number and payment are not inconsistent, assuming she is at fault, with a girl who was not desperately interested in her job and who had no idea at the time she would later have to remember numbers and mode of payment. She ran other errands for [the Appellant]; other things she did would have needed payment. I did not find her inability to remember these details cast doubt on her testimony.

Likewise with her recollection of the relationship of the people in the two photocopying firms. Assuming there were no difficulties of translation (of the he/she variety), this was a detail she should have had no difficulty in recalling. On any view there was some transaction between the various witnesses. If not a linguistic difficulty, this could only reflect carelessness on the part of [PW7]."

30. There was other evidence from sources not challegned that mass photocopying of P7 was done at the request of and on payment by PW7.

31. There is no complaint of any real substance in Ground 5.

32. Ground 6 complains that the prosecution failed to prove publication and that the learned magistrate misdirected himself in law on the meaning of "published."

33. The learned magistrate accepted the evidence of PW7 that she posted the photocopies on walls within the constituency and there was evidence from a number of constituents that they had come into possession of copies. That, in my view, was ample evidence of publication.

34. In the course of his submissions on a ground relating to charge A Mr. Bernacchi Q.C., submitted that because the learned magistrate misdirected himself on a matter of fact his view of the Appellant's evidence as a whole night have been coloured by that misdirection.

35. On 14th January, that is, two days after the publication of the offending article in the newspaper, the Appellant went to the District Board offices to look at the list of attendances of members. He said in evidence that he went there to check his own attendance record because there was a rumour that his own attendance was poor. His knowledge of English was so poor that he could not have checked PW1's attendance record without extreme difficulty because the documents he examined were in English.

36. The learned magistrate found the Appellant's demeanour "awkward and evasive" and listed seven "examples of the unbelievable" which he extracted from his evidence. One of the examples; which explains why the learned magistrate did not believe the Appellant's evidence as to his reason for checking the attendance record two days after the erroneous publication, reads as follows:-

"Even if he had heard rumours of his own low attendance, he himself could not have failed to know he was an assiduous attender. He would not have needed to refresh his memory about this. There was nothing to suggest he in some way used the figures he then obtained as propaganda to rebut rumours of his low attendance. In cross-examination on this point his answers as expressed were unimpressive."

37. That is but another example of the careful consideration which the learned magistrate gave to the evidence and submissions in this case. I find no misdirection at all.

38. Ground 7 is the general ground that the convictions were unsafe and unsatisfactory. I find nothing to support that contention other than the reasons mentioned earlier in respect of charges A and B. I allow the appeal to the extent that the convictions on charges A and B will be quashed but dismiss it in respect of the convictions on charges C, D and E.

39. The learned magistrate ordered the Appellant to pay $2,500 costs. I set that order aside and substitute, in lieu, an order that he pay $500 costs.