HKSAR v. NG CHEONG FAI AND ANOTHER

HCMA350/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.350 OF 2001

(ON APPEAL FROM WSCC 14552 OF 2000)

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J U D G M E N T

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1. On 9 April 2001, the two appellants pleaded guilty to two offences before a magistrate. These offences were conspiracy to defraud and voting at an election knowing that he has made a false statement for the purpose of registering as an elector, contrary to sections 10 and 14(1)(aa) of the Corrupt and Illegal Practices Ordinance, Cap.288 ("the Ordinance"). On each charge, the appellants were each sentenced to two months' imprisonment, to be served concurrently.

2. The appellants were employees of a firm of solicitors, in their positions as clerks. The offences arose when the wife of the proprietor of that solicitors firm ("Madam Lee") offered herself as a candidate for election as a member of the District Council of the Stanley and Shek O Constituency. Subsequently Madam Lee was duly elected in the election as a District Councillor. It subsequently transpired that Madam Lee had before the election asked the two appellants to apply and fill in forms as election voters and, in order to do so, they had to state in their application forms that they were residents of Stanley District which for all intent and purposes and to their knowledge were false, and thereby an offence against the Ordinance was committed.

3. The appellants pleaded guilty in the first opportunity before the magistrate and it was not in dispute that they were very cooperative with the ICAC throughout the investigations. Before me this morning, Mr Cheng Huan, SC who appears for both appellants, who also appeared for the 1st appellant in the trial before the magistrate. It has to be noted at this stage that Madam Lee was subsequently charged and was convicted under the same Ordinance, and she received a sentence of three months' imprisonment.

4. The leading case on this matter is the decision of the Court of Appeal in Secretary for Justice v. Lai Wai Cheong [1998] 1 HKC 364. In delivering the judgment of the court, Patrick Chan CJHC (as he then was) had this to say at p.369 :

" ... Hence, we think that 'voting planting' and similar electoral illegal practices, whether they are committed by electors or candidates and campaigners, unless there are very special circumstances, must be punished by immediate custodial sentences. The length of sentence would depend on the degree and method of participation in such practices. We consider that an elector participating in such practices should receive an immediate custodial sentence of two months or more and a candidate or election campaigner four months or more. If such practices involve any form of advantage, or other corrupt and unlawful conduct, such as intimidation, threat, bribes, conspiracy or other more serious offences, the period of imprisonment would be even longer."

I entirely and respectfully agree with this passage of the judgment of the Chief Judge which is binding on me.

5. Mr Cheng argued that there is still a possibility of taking this case out of Lai Wai Cheong because what the appellants did would amount to exceptional circumstances, even very exceptional circumstances. He relied on a case of the Court of Appeal Secretary for Justice v. Li Cheuk Ming [1999] 1 HKLRD, differently constituted, in a passage of the judgment of Patrick Chan CJHC. In that case at page 66, where the learned judge said :

"The Magistrate, in view of the exceptional circumstances in the case, did not sentence the respondent to immediate imprisonment. We opine that exceptional circumstances are mainly judged on the basis of degree and common understanding. Generally speaking, exceptional circumstances can be categorised into personal exceptional circumstances, exceptional circumstances relating to the nature of the offence, and exceptional circumstances relating to consequences. The definition of exceptional circumstances varies from case to case. The circumstances are usually very extreme or it could attract an immediate outpouring of public sympathy."

6. In my view, I do not think that the facts in the present case would constitute very special or even special circumstances. The facts that were put before the magistrate were no different from facts of any other cases of a similar nature. Mr Cheng in particular relied on the last observation that would constitute exceptional circumstances. They were the consequences that would happen to the appellants. The consequences of giving evidence against Madam Lee would, in my view, only result in better and not worst consequences for the appellants. As to the factor, of personal exceptional circumstance, of course I accept that the two appellants are persons of good character and having in the past made constitutions to society, but that does not fall into the category of personal exceptional circumstances. Offences of this nature have been committed by persons who had even made a greater contributions to society.

7. The next category from the judgment is exceptional circumstances relating to the nature of the offence. Again, I do not think it would apply here. This is a classical case of this kind of offence. People who are persuaded to help friends, relatives or employers to vote in election with a view that the person he or they help would eventually emerge as the winner in election. It has to be remembered that fair and free elections have to be conducted if our free and democratic institutions are to survive. To this end integrity of candidates, voters and the complainers are of extreme importance. I think in the infant stage of our electoral system, the public must not get the wrong message that seats in an election can be bought or obtained by money or through any other unlawful means. This much is clear and that is the intention of the legislature.

8. Mr Cheng also argued that the starting point of three months adopted by the magistrate was wrong and excessive. In my view, Lai Wai Cheong never laid down the minimum or the maximum of sentence to be passed. Three months in my view is not out of range within the context of Lai Wai Cheong.

9. The only merit, in my view, is the full cooperation given by these two appellants and also their subsequent giving evidence against Madam Lee resulting in her conviction and sentence. Their acts in doing this would deserve a very generous and great and as Mr Cheng put it and also act as encouragement to people who in the past perhaps and in the future may have made the same mistake to come forward and give evidence against the person who instigated offences. In this case no doubt that Madam Lee was the principal offender and instigator. Mr Cheng also complained that the prosecution, the respondent, behaved so badly in their anxiety to get the appellants to agree to give evidence against Madam Lee so much so that the respondent did not oppose bail when they went before Madam Justice Beeson on the same day or the next day to apply for bail. I do think there is anything wrong. Bail is normally granted in a case of very short sentence, where the consideration is if by the time of the hearing of the appeal the sentence may have fully served and, where the prosecution was anxious to get the appellants to give evidence against Madam Lee, it is only natural that they took the stance of not opposing bail pending appeal.

10. Having said all this, I think what the appellants had done fully reflected their remorse, and their cooperation with the ICAC throughout certainly deserve great credits. The fact remains that this is an offence that in order to demonstrate the serious nature of the offence and the strong disapproval of society it is necessary that an immediate prison sentence must be imposed. For all the reasons that I have mentioned, I am satisfied that the interest of justice would be served by reducing the sentence of each appellant to one month and the appeal succeeds to this extent.