HKSAR v. TAI LAI YEE

HCMA 829/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL 829 OF 2012

(ON APPEAL FROM KCCC 2352 OF 2012)

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J U D G M E N T

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BACKGROUND

1.  On 6 November 2012, the Appellant was convicted after trial before a magistrate of one charge of “engaging in corrupt conduct with respect to voting at an election”, contrary to sections 6 and 16(1)(b)(i) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554.  On 27 November 2012, the Appellant was sentenced to 3 months’ imprisonment. 

2.  She now appeals against both conviction and sentence.

THE ISSUES AT TRIAL

3.  The issues at trial mainly centred around these matters :

(i) Whether the polling officers could have crossed out the Appellant’s name by mistake; and

(ii) Whether, on the polling day, the person presenting the identity card bearing the Appellant’s personal particulars was indeed the Appellant.

4.  It was not disputed that, on 16 July 2011, the Registration and Electoral Office (“REO”) received an application for voter registration which bore the Appellant’s correct personal particulars, including her English and Chinese names (together with the Chinese Commercial Code); her identity card number; and her mobile telephone number.  The residential address then reported on the form was an address at Soy Street, Mongkok. 

5.  Based on the address provided on the form, the Appellant was entitled to vote in the King’s Park Constituency Area.  In fact, the Appellant had never resided in the Soy Street address, and although she was entitled to register as a voter, where she lived at the material time would not entitle her to vote in the King’s Park Constituency.

6.  At trial, evidence was called by the prosecution as to the actions the officers took on the polling day in respect of the voters who presented themselves for the collection of ballot papers.  In the case of the Appellant, it was said that an identity card bearing her personal particulars was presented to the officers on that day.  The particulars were checked and found to match with those listed on the register.

7.  In addition, the officers told the court that they had checked to see if the appearance of the one presenting the identity card matched with the image shown on the card before they gave out the ballot paper and crossed out the voter’s name on the register. Under cross-examination, the officers agreed that the cross-checking of the image would be around 1 minute.

8.  The Appellant testified at trial and called two witnesses.  She said that she did not fill in the voter registration form, nor send it to the REO.  She also denied having gone to the polling station to obtain the ballot paper.  Further, the Appellant claimed that she had never registered as a voter.

9.  The two defence witnesses were the Appellant’s mother and her beautician.  Both told the court that the Appellant was with them during certain periods of time on the polling day.  Although not precisely accurate, such was termed as the “alibi evidence” in the course of the trial.

THE GROUNDS OF APPEAL AGAINST CONVICTION

10.  The grounds of appeal in relation to conviction relied on by Mr Andrew Bruce, SC, and Mr Simon Ng, who act for the Appellant, could be summarized as follows :

(i) The magistrate erred in finding that the person who attended to vote and who caused the name of the Appellant to be marked off the register must have presented a genuine Hong Kong Identity Card (“HKID”) when there was no evidence that the officer who inspected the card was relevantly skilled in determining whether the HKID was genuine or not;

(ii) There was no evidence to properly justify the conclusion that the Appellant was in any respect a party to the submission of the registration form;

(iii) The magistrate engaged in unwarranted speculation about how a criminal or corrupt/dishonest person would go about filling in the form as well as how such a person would not seek to impersonate the Appellant at the polling station;

(iv) The magistrate reversed the burden of proof in finding that the Appellant must have voted at times not covered by her evidence; in particular, the magistrate erred in coming to such a conclusion when there was no evidence as to when the person presenting the HKID bearing the Appellant’s particulars attended the polling station; and

(v) In all the circumstances of this case, the conviction was unsafe and unsatisfactory.

Ground (i) : the HKID

11.  It should be stated at the outset that Mr Bruce’s arguments in relation to this ground are similar to what he advanced in the case of HKSAR v Tai Hin Wing[1].

12.  In the case of Tai Hin Wing, I rejected the submission on the basis that the officers did not proffer any expert opinion on the genuineness of the HKID.  What they did was simply a matching exercise, that is, checking to see if the appearance of the person presenting the HKID matched with the image shown on the card. 

13.  Further, I rejected that there was any need for a Turnbull direction as the officers were not giving any identification evidence.  At the time of checking, the person presenting the card was standing before the officers and the officers were holding the HKID.  It was simply a matching exercise.  It was neither an identification nor a recognition of the person based on the officers’ recollection of how that person looked.

14.  In the instant case, as submitted by Mr Martin Hui, SC, for the Respondent, the officers also did not purport to give any expert opinion on the genuineness of the HKID. All they did on the polling day was to see if the appearance of the person presenting the HKID was similar to the image shown on it.

15.  Mr Bruce accepts in his written submissions[2] that, “However, the problem might be that the officers were perfectly correct in their identification in that if the identity card was a fake one, presumably the image of the person on the card matched the person who presented it.”

16.  Such acceptance, together with the Appellant’s unchallenged evidence that she did not lose her HKID in the year 2011[3], would mean that if the Appellant had not attended on that day, the one who attended the polling station must have presented a fake HKID, using the Appellant’s particulars but putting on the HKID the image of the impostor. 

17.  Therefore, in the circumstances of this case, the issue is clearly not about any identification. The question is basically this: was the magistrate entitled to draw the irresistible inference from the available evidence that the person attending the polling station was the Appellant, and not an impostor who had armed herself with a fake HKID.

18.  In the light of the above, there is simply no basis to mount any argument concerning misidentification or the need for a Turnbull direction. 

19.  Insofar as the question of fake HKID is concerned, the magistrate was clearly alive to such a defence suggestion but, after careful consideration, dismissed it as being a fanciful suggestion.

20.  I am not going to set out the magistrate’s reasoning here for such will be dealt with in the later part of this judgment.  Suffice for me to say that, with respect, this first ground has no merit. 

Grounds (ii) & (iii) : the Appellant being a Party to the Form & Unwarranted Speculation

21.  It should first be noted that the magistrate accepted the evidence from the prosecution witnesses and ruled out any possibility of the staff having erroneously crossed out the Appellant’s name on the register.  In other words, the magistrate found that someone armed with a HKID with the Appellant’s personal particulars on it indeed attended the polling station.  The only issue which then remained was whether that person was the Appellant or someone impersonating her. 

22.  The magistrate concluded that it must have been the Appellant who attended the polling station based on the following analysis :

(i) It would not be difficult to see that the handwriting in respect of the HKID number; the English and Chinese names of the Appellant; the Chinese Commercial Code; and the telephone number appearing on the registration form was materially different from that in respect of the address;

(ii) As such, it followed that the form was not completed in one go.  Therefore, if the Appellant’s version that she had nothing to do with the form were true, it would mean that the form was completed by someone who had obtained the Appellant’s particulars, but yet, he/she chose to complete only part of the form, leaving the other part for completion by another person.  Such, the magistrate reasoned, did not make any sense and was not the truth;

(iii) Further, if the Appellant were not a party to the submission of the form, then the fraudster(s) could not be sure if the Appellant had already applied for registration.  If she had, the fraudsters’ efforts would be futile.  The magistrate observed that it was absurd to suggest that one would go so far as to steal the Appellant’s particulars; made a forged HKID; and then sent someone to impersonate the Appellant to obtain just one ballot paper when even the primary and essential fact of whether the Appellant had already registered herself as a voter was not known.

23.  Plainly, as a fact-finder, the magistrate was entitled to so find.  What he employed in his analysis was no more than common sense and general reasoning.  I reject the submission that the magistrate had engaged in any unwarranted speculation. 

24.  In respect of Mr Bruce’s submission that there was no allegation about the Appellant having received any payment or other advantage, it is, in my view, a non-starter.  The prosecution was not required to prove the receipt of reward.  The magistrate’s finding that the Appellant must have been a party to the submission of the form was based on all the evidence adduced before him.  At the time, the magistrate was fully aware that there was no evidence about the Appellant getting any reward. 

25.  No doubt, if there had been such evidence, it would probably have helped to further strengthen the prosecution case.  However, it does not follow that in the absence of such evidence, it would render the magistrate’s conclusion unsound. On the evidence before the magistrate, he was perfectly entitled to find as he did.   

Ground (iv) : the Reversal of the Burden of Proof

26.  Mr Bruce makes two complaints in respect of this ground. 

27.  The first is that the magistrate started his analysis from the wrong end and contradicted the strictures in HKSAR v Egan & Ors[4].

28.  The second complaint is that the magistrate, in convicting the Appellant, did not give sufficient weight, if any, to the fact that the Appellant was not subject to any serious challenge under cross-examination about the windows of opportunity to vote, nor her emotional state and her acts on the polling day.  Further, the magistrate did not give sufficient weight, if any, to the Appellant’s “alibi evidence”.  The result, Mr Bruce submits, was that the magistrate effectively required the Appellant to account for each and every moment during which the polling station was in operation.

29.  The main part of the magistrate’s statement of findings which is under attack by Mr Bruce in relation to this ground is, “… regarding the 7^th defendant (the Appellant), she called witnesses to testify in defence.  I accept the defence witnesses’ evidence that at the time as testified by the witnesses, the 7^th defendant was with them respectively.  Having said that, the voting lasted for ten hours odd and it would not take one a very long time to be there to cast a vote.  Therefore, these testimonies supporting the 7^th defendant’s alibi and the prosecution’s case do not contradict with each other, and do not arouse any doubt either. …”[5]

30.  It should, however, be noted that when giving his reasons for the findings, the magistrate first began with the evidence called by the prosecution.  After accepting such evidence, he dealt with the defence suggestion that the Appellant’s name might have been accidentally crossed out in error and he found that to be fanciful.  Afterwards, the magistrate turned to the case of the Appellant and it was at this stage that the “offending part” appeared.  Then, having considered the Appellant’s good character, the magistrate concluded that the defence case should, nevertheless, be rejected and he gave his reasons for arriving at such a conclusion.

31.  Therefore, when viewed in context, it is clear that the magistrate did start with the primary facts.  He then considered the defence suggestions and other probabilities before drawing the irresistible inference.

32.  Before me, Mr Bruce accepts that the evidence adduced by the Appellant was not, strictly speaking, “alibi evidence” for even if she had indeed seen her mother at home at around lunch time and had met with the beautician in the evening of the polling day, it does not mean that it would be impossible for her to attend the polling station on that day. 

33.  In the circumstances, I cannot see any basis for attacking the magistrate’s observation that “these testimonies supporting the 7^th defendant’s alibi and the prosecution’s case do not contradict with each other, and do not arouse any doubt either.”

34.  Obviously, this is not a case in which the accused was saying that because she was outside Hong Kong, she could not vote on the polling day.  If it were such a scenario, then the prosecution case could never sit with the defence case, and the magistrate would have erred to make the above comment.  However, as the Appellant’s assertion here was of a totally different nature, the magistrate’s observation could not be criticized.    

35.  Further, since it is for the prosecution to disprove it when “alibi evidence” is adduced, I do not find it inappropriate for the magistrate to first deal with this part of the Appellant’s case in his reasons before moving on to the other issues.

36.  In short, the first complaint is not made out.

37.  In respect of the second complaint, again, one needs to remember what the prosecution case was.  At trial, the prosecution adduced evidence to prove the following :

(i) a registration form bearing the Appellant’s particulars had been submitted to the REO prior to the election;

(ii) election material had been sent to the stated address;

(iii) someone attended the polling station on the polling day and presented to the staff a HKID with the Appellant’s particulars on it; and

(iv) the staff conducted checks on the particulars and carried out a matching exercise before issuing the ballot paper.

38.  On the evidence as a whole, and even accepting that the Appellant saw her mother around lunch time and met with the beautician later that day, clearly, the magistrate was still entitled to draw the irresistible inference that it was the Appellant who attended the polling station given its opening hours.

39.  In my view, such a finding had nothing to do with any reversal of the burden of proof.  It was about rejecting fanciful and illogical suggestions and about the drawing of an irresistible inference.

Ground (v) : the General Ground

40.  Having rejected Grounds (i) to (iv) and having considered this case, I do not find that the conviction was in any way unsafe or unsatisfactory.  This general ground also fails. 

THE APPEAL AGAINST SENTENCE

41.  In respect of the sentence, Mr Bruce submits that a 3-month term is manifestly excessive and wrong in principle given the Appellant’s good background and given that she was entitled to vote in that election.

42.  As I have pointed out in other similar cases, the vice of these offences is not only the obtaining of a vote when one does not have the right to vote.  It relates to the casting of a vote in a constituency to which one does not belong albeit that he has a right to vote.

43.  In the case of SJ v Lai Wai Cheong[6], the Court of Appeal stated that the concern is the disruption and damage caused to the election and the related unfairness.  Therefore, I do not regard it as a ground to reduce the sentence merely because the Appellant had the right to vote at the time of the offence.  The evil of vote planting and similar offences lies in trying to interfere with the electoral process.  It is such interference which the court seeks to stamp out by imposing deterrent sentences.

44.  In this case, given the facts and the Appellant’s role, I do not consider the immediate custodial term of 3 months to be manifestly excessive.  Nor is the imposition of this term wrong in principle.

CONCLUSION

45.  For the reasons set out above, the Appellant’s appeals against conviction and sentence are dismissed.