HKSAR v. FAN, SHUN AND OTHERS

HCMA188/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 188 OF 2009

(ON APPEAL FROM TMCC 4056 OF 2008)

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JUDGMENT

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1. The 4 appellants were found not guilty of a charge of Voting In An Election Knowing Not Entitled To Do So, contrary to sections 6(1)(a) and 16(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554, Laws of Hong Kong, after trial.  They applied for costs but were refused. They now appeal against the refusal to award costs.

Allegation

2. There are two kinds of election in Ho Pui Tsuen（河貝村）, namely indigenous inhabitant election and resident representative election.

3. The indigenous inhabitant election is mainly for descendants of people who were already residents of Ho Pui Tsuen in 1872.  As long as the ascendant of a person had settled down in Ho Pui Tsuen in 1872, then that person is entitled to vote whether or not he now lives at Ho Pui Tsuen.

4. On the other hand, an elector of the resident representative election is one who “has been a resident of the village for the 3 years immediately before the application for registration as an elector” (referred to as the “3 years’ residence” requirement for short).

5. Therefore, a person who is an indigenous inhabitant and who has also lived at Ho Pui Tsuen for the 3 years before registering as an elector has the right to vote in both kinds of election.  But if that person has moved out of Ho Pui Tsuen for more than 3 years, then he cannot vote in the resident representative election.

6. The 4 appellants belong to the same family.  Although they are indigenous inhabitants, they had all moved out of Ho Pui Tsuen during the period 1979-1986. Therefore in the Ho Pui Tsuen resident representative election held on 6 January 2007, they did not meet the requirement that “the person has been a resident of the village for the 3 years immediately before the application for registration as an elector (i.e. 14 July 2006)”, but it was found out that they voted in the election.

7. I have to mention one more point, i.e. the allegation against the appellants is that they voted in the election knowing that they were not entitled to do so, not that they voted in disregard of the requirements.  This is the prosecution’s position from the beginning to the end.

Evidence

8. According to the deputy magistrate who tried this case, the evidence adduced by the prosecution consisted of the following aspects:

9. Firstly, there were P13 to P16, which were 4 “Village Representative Election – Resident Representative - Application for Voter Registration” forms.  On the forms, all 4 appellants declared that they had been residents “of the village for the 3 years before 14 July 2006”.

10. Then, there were the records of interview provided by the appellants under caution.  These records were admitted by the magistrate as evidence after adopting the alternative procedure.  Their contents were mixed statements.  To put it simply, they on the one hand admitted that the whole family had moved out of Ho Pui Tsuen long time ago, and only occasionally went back to the ancestral house to stay for short periods, but on the other hand they protested that they did not knowingly break the law, and that they were just ignorant of the “3 years’ residence” requirement, so that what they had done was only voting mistakenly but they did not engage in any corrupt conduct.

11. Finally, the prosecution called 8 officers from the Home Affairs Department.  They had taken part in the work concerning the 2007 election.  They could not remember very clearly the details of what happened on the day of election, but all of them believed that they had explained clearly to the electors that anyone who moved out of Ho Pui Tsuen after registering as an elector would be disqualified from being an elector and that if he voted under those circumstances, his conduct would contravene the law.

Defence case

12. The 4 appellants did not give evidence or call any witness on the general issue.  They contended that their main home was still situated at Ho Sheung [sic, 上] Tsuen and they queried whether the staff members at the polling stations had explained clearly under what circumstances would one be disqualified from being an elector.

Not-guilty verdict

13. In the end, the magistrate found the appellants not guilty.  The reasons are set out below (extracted from his written verdict):

          “11.  ……

a.    It can be seen that the writings on P13-16 were all done by the same person, but it seems that the handwriting was the handwriting of none of the 4 appellants …… .  This is a doubt appearing on the documentary exhibits.  Even though some appellants admitted that they themselves filled in the forms or someone filled them in on their behalf, I really do not understand why even the handwriting of the signatures on the 4 forms also looks like the same.  For this reason, I cannot be sure whether these 4 people had made the declarations on P13-16 or how they made the declarations.”

b.    I have sympathy for the polling stations workers for the limitation in their memory and their inability to remember a number of details, but I really cannot agree that their evidence is beyond doubt.

c.    For the above reasons, I have only suspicion as to whether the 4 appellants did vote knowing that they were not entitled to do so.  That is not sufficient to be the basis of a conviction.”

Order not to award costs

14. As for the refusal to award costs to the appellants, the magistrate explained as follows:

“12.     As regards costs, I agree with the defence submission that the court should not base its consideration of whether the 4 appellants had brought suspicion upon themselves on facts which were the same as those which formed the reasons for finding them not guilty.  Generally speaking, a defendant should be awarded costs unless the defendant by his own conduct brought suspicion upon himself, or led the prosecution into thinking that the case against him was stronger than it really was, or the defendant was acquitted on a technicality.  When considering whether an appellant had brought suspicion upon himself, the relevant factual basis has to be something outside the ambit of that which attracts the presumption of innocence and go beyond acts which are just blameworthy (see Wong Kwong Wai [transliteration 黃廣渭]：HCMA 697/2008).

13.      I have considered the following conduct of the 4 appellants, which is not connected with the reasons for finding them not guilty.  Such conduct is outside the ambit of that which attracts the presumption of innocence and goes beyond acts which are just blameworthy:

a.    All 4 appellants’ records of interview show that their attitude towards the voting requirements was an irresponsible attitude.  They went to vote without even ascertaining the most basic differences between different categories of voting and they paid no regard as to whether it is legal or illegal in the way they did.  By such conduct, they brought suspicion upon themselves.

b.    The 4 appellants also admitted that on many occasions the addresses they reported were not Ho Pui Tsuen.  This would surely lead the prosecution to believe that the case against them was stronger that it was.

14.      I therefore held that costs should not be awarded to the 4 defendants.”

The appeal

15. After considering submissions from the two parties, I come to the conclusion that the magistrate’s refusal to award costs to the appellants was a wrong exercise of his discretion.

16. The principles about awarding costs are nothing new.  The description given by the magistrate in paragraph 12 of his judgment is basically correct.

17. The tricky part is how to apply these principles in a particular case.

18. After the Court of Final Appeal gave its judgment in Ting James Henry v HKSAR (No. 2) (2007) 10 HKCFAR 730, it is well-known that the conduct by which a defendant can bring suspicion upon himself is not confined to his conduct during investigation or at trial, but includes his conduct which formed part of the setting for the charges laid against him.  The only limitation is that the exercise of the discretion does not involve the court in adopting a position at variance with the defendant’s acquittal.  The following is the view of the Court of final Appeal on this point (p.735 C to F of the judgment):

“ …  it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise.  The discretion is not bounded by any such inflexible rule.  By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself.  There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.”

19. Subsequently, in Secretary for Justice v Lam Chiu Fong [2009] 2 HKLRD 484 the Court of Appeal, based on the same reason, held that costs should not be awarded to those defendants the charges against whom were withdrawn by the prosecution.

20. The problem is that both the above two cases have their special features.

21. The former case involved false accounting and the defendant had done something which was held to be dishonest conduct. His convictions were overturned by the Court of Appeal only due to a misdirection by the Judge of the Court of First Instance (see p.734 D to E of the judgment).

22. As for the latter case, the defendants were identified by decoy officers as having, on more than one occasion, joined with others in surrounding, staring angrily at and swearing at the victim, a contractor.  The prosecution withdrew the charge of unlawful assembly against them and only prosecuted the other arrestees just because there was a policy decision to proceed only against those who had claimed to be triads and had actually intimidated the victim.  After all, the defence had never disputed the allegations about what the defendants had done at the time of the offence (see paragraph 49 on p.500 of the judgment).

23. Turning now to the 4 appellants in this case, I really cannot see anything special in their conduct.

24. All along, their explanation was that they were only ignorant of the requirements and therefore cast their votes mistakenly.  In the end, the magistrate was not able to negate this explanation and had to acquit them.  That being the case, the matter should have ended there.  The magistrate should not have taken any further action in respect of their indolence and failure to make themselves aware of the voting requirements.  That was a matter of morality and could not be placed on a par with bringing suspicion upon themselves.

25. The appellants frankly admitted that the addresses reported in a number of documents were not Ho Pui Tsuen.  I hold that the magistrate should not have regarded this as a factor which would mislead the prosecution as to the strength of their case, because what they frankly admitted was consistent with their explanation that they were ignorant of the requirements and therefore cast their votes mistakenly.  At least, it did not definitely contradict their explanation.

Decision

26. I allow the appellants’ appeal and award them the costs of the trial and the appeal, to be taxed if not agreed.