HKSAR v. CHAN TAK WAI

[English Translation – 英譯本]
HCMA 841/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 841 OF 2009

(ON APPEAL FROM ESCC NO. 3397 OF 2009)

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J U D G M E N T

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1. The appellant was charged with two offences of “offering advantages to other persons as an inducement to vote”, contrary to sections 6 and 11(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance.  The particulars of offence set out that on 20 October and 10 November 2007, near the entrance to Luk Yip Lau, Healthy Village, North Point, the appellant, without reasonable excuse, engaged in corrupt conduct at the 2007 District Council Elections in that he, by providing body check services, offered advantages to other persons as an inducement to vote at the said election for the appellant.

2. The appellant was convicted after trial and was sentenced to concurrent terms of 9 weeks’ imprisonment on each offence.  He now appeals against his convictions.

Prosecution case

3.  There was not much dispute between the parties as to the primary facts of this case.  The admitted facts showed that the appellant had been a District Councillor for the Healthy Village constituency of the Eastern District Council since 2000.  Starting from the end of 2006, the appellant arranged for three student nurses to provide residents with free body check services such as blood pressure checks and body weight measurements once or twice a month.  On 12 October 2007, the appellant became a candidate for the 2007 District Council Elections.

4. Between 9:30 a.m. and 1 p.m. on 20 October 2007, the appellant set up a booth near the entrance to Luk Yip Lau of Healthy Village to provide the elderly with free body check services.  The appellant even placed his campaign publicity posters near the booth.  Apart from checking blood pressure for the residents, the student nurses also gave out ball pens and calendar cards to them.  The student nurses were also instructed that when they were giving out the free gifts, they should remind the residents that 18 November was the District Council Election Day and invite them to support the appellant.  The ball pens that were given out to the residents bore the slogan, “Chan Tak Wai All for You over 16 Years”, while the calendar cards had the appellant’s name and candidate number printed on them.  In the course of these activities, the appellant, who was wearing his election sash, chatted with passers-by and handed out election leaflets and calendar cards, etc.

5.  The appellant conducted the same activities one more time on 10 November 2007.

6.On both occasions, the appellant engaged three student nurses to carry out the body checks for residents at an hourly rate of $35.

Defence case

7.The appellant elected not to give evidence, nor did he call any witnesses.

Grounds of appeal

(1) The learned magistrate wrongly interpreted the meaning of “advantage” and “voluntary service” as contained in Section 2, the Interpretation Section, of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 and erroneously accepted that the service of blood pressure checks described in charges (1) and (2) was part of the “advantage” set out in the Ordinance;

(2) The learned magistrate, in the absence of sufficient evidence, erroneously found that the service of blood pressure checks described in charges (1) and (2) was “inducement” to induce another person to vote at the election for the appellant;

(3) The learned magistrate did not draw an irresistible inference from the facts and erroneously found that the appellant had the mens rea at the time of offence.

Discussion

8.  The accusation against the appellant as contained in the particulars of offence was only related to the body check service and did not cover the giving away of ball pens and calendar cards.

9.  Section 11(1)(a) of the Elections (Corrupt and Illegal Conduct) Ordinance provides:

(1)   A person engages in corrupt conduct at an election if the person, without reasonable excuse –

(a)    offers an advantage to another person as an inducement to vote at the election for a particular candidate or particular candidates;

10.Section 2 of the Elections (Corrupt and Illegal Conduct) Ordinance defines “advantage” and “voluntary service” as follows:

“advantage (利益) means-

(a)    any valuable consideration, gift or loan; or

(b)    any office, employment or contract; or

(c)    the full or partial payment, release, discharge or liquidation of an obligation; or

(d)    the exercise of or forbearance from exercising a right or power; or

(e)    the performance of or forbearance from performing a duty; or

(f)  any favour, including-

(i)  giving protection from a liability incurred or anticipated; and

(ii)    giving protection from proceedings or possible proceedings of a disciplinary, civil or criminal nature; or

(g)    any other service (other than voluntary service or the provision of entertainment),

but does not include an election donation if particulars of the donation are given in an election return that has been lodged with the appropriate authority;

“voluntary service” (義務服務) means any service provided free of charge to or in respect of a candidate or candidates at an election by a natural person, voluntarily and personally, in the person’s own time for the purpose of-

(a)    promoting the election of the candidate or candidates; or

(b)   prejudicing the election of another candidate or other candidates.

11.Counsel for the appellant conceded that body checks were a type of service, but he argued that such activities were a form of voluntary service since the residents receiving this service were not required to pay any fees.

12.  I believe voluntary service should not be viewed from the angle of the recipient of the service.  It targets corrupt practices at elections, with the Ordinance forbidding anyone from providing an advantage to another person without reasonable excuse.   Under this Ordinance, “advantage” and “provide” are linked together.  Obviously, voluntary service is viewed from the angle of the service provider.  From the viewpoint of the recipients of the service, they would have absolutely no idea if the service is voluntary or not; they would only know that the service is provided free of charge.

13.In the present case, the appellant was not a person providing voluntary service, since the body checks in question were not provided by the appellant personally.  Nor were the student nurses persons providing voluntary service, as they were hired on an hourly rate basis and did not provide their service free of charge.  The activities that the appellant and the student nurses carried out on that day did not meet the definition of voluntary service within the meaning of the Ordinance.

14. I believe what the appellant provided on that day was actually service which amounted to “valuable consideration” specified in paragraph (a) of the definition of “advantage”.  He therefore contravened the Elections (Corrupt and Illegal Conduct) Ordinance.  Looking at the Ordinance as a whole, voluntary service is, to a large extent, meant to regulate the relationship between election candidates and their electioneering team, allowing the latter (exceptions are those referred to at (a) to (f)) to assist the candidates and participate in electioneering activities provided they satisfy certain conditions (voluntarily, personally, free of charge).  In any event, however one looks at this case, the appellant cannot rely on voluntary service as a defence.

15. Further, counsel for the appellant submitted that the learned magistrate, in his Statement of Findings, mentioned that what the appellant provided the residents with was not just health checks, there were also valuable articles such as ball pens and calendar cards; such evidence adduced deviated from the “advantages” specified in the particulars of offence, hence the trial was unfair.

16. First, such background evidence was not in dispute during the trial.  Second, in his Statement of Findings, the learned magistrate’s description of the ball pens and calendar cards, etc as advantages was very brief considering the length of the said Statement.  When he did mention those articles, his emphasis was that they bore the appellant’s campaign slogan and candidate number.  All these free gifts and body checks amounted to circumstantial evidence which could be used to establish and prove the reasons behind the appellant taking these actions.

17. As regards the second ground of appeal, in my view, there was sufficient evidence in this case to prove that the body check services were an inducement whose purpose was of course to induce another person to vote at the Election for the appellant. Inducement cannot be viewed from the angle of the electors, since whether the electors would vote eventually or whether they would vote for the candidate concerned is something out of the latter’s control.  What was not in dispute was that in any election, the votes cast are kept confidential and even the law cannot require an elector to disclose in court if he has voted, who he has voted for and what factors have affected the result of his voting.  The inducement was not just viewed from the angle of the appellant, indeed there could be more than one form of inducement.  The prosecution need not prove that the body checks were the only inducement, nor was it required to prove that this inducement had affected how the electors had voted.

18. In respect of the third ground of appeal, counsel for the appellant submitted that these body checks were not especially provided for the purpose of the election; they had actually been in place since 2006.  Without the support of any other evidence, I accept that the appellant had been providing the residents with this type of body check activities, which could not definitely show that he had used this as an inducement to attract more votes in this election.  However, the undisputed evidence also showed that after finishing the body checks with the residents, the student nurses gave out to them ball pens and calendar cards bearing campaign slogans, reminded them that 18 November was the election day and invited them to vote for the appellant, etc.  Evidence that could not be overlooked also included the facts that the appellant, who was wearing an election sash, actively canvassed for votes near the booth; and that in his application to the Healthy Village Housing Society for conducting these two-day activities, he indicated that they were meant to be election activities.  All such evidence showed that the body check activities held on the two days as specified in the particulars of offence were in fact part of his election campaign and he did provide advantages therein to induce electors to vote for him.

19.  The magistrate found that the body checks provided on the two days in question were part of the corrupt conduct carried out by the appellant at the election.  That finding was correct.  The appeal lacks merits.  It is dismissed.