刑事檢控科各律師/高級律政 - Department of Justice

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24 she took the oath, that she had a right to refuse to give evidence; (3) On the authorities it could not be said that there was a procedural requirement that such a warning must be given in cases involving a witness who gave evidence against his/her spouse. Result - Appeal dismissed. MA 955/99 Gall J (8.9.2000) *B Ryan & M Yang #A Hoo SC & Lee Wai-keung CHIM Pui-chung Corrupt and Illegal Practices Ordinance/Definition of ‘election meeting’/Onus on accused not contrary to the Bill of Rights Ordinance/Meaning of ‘election expenses’ - ‘ ’ - - ‘ ’ The Appellant was convicted after trial of two offences, namely, treating and failing to obtain written authorisation to incur election expenses, contrary to s 7(a) and s 12(1), respectively, of the Corrupt and Illegal Practices Ordinance, Cap 288. The evidence showed that on 2 April 1998, there was to be an election to select an Election Committee. One of the constituencies entitled to elect members of that Committee was the Financial Services sector. The Appellant was a member of the Provisional LegCo and had been elected to that position by the Financial Services Constituency. He was not a candidate in the election of 2 April. On 27 March 1998, the Appellant held a dinner which 90 people attended. During the evening, the Appellant made a short speech and referred to the election to be held on 2 April and asked people to refer to the handbill. He told them that they should make their own choice when they voted. The handbills giving the time, date of the election and number of candidates to be elected were distributed to guests. A list of 11 recommended candidates together with a further list of 3 candidates under the heading ‘Please choose from one of the following three’ was also distributed. The prosecution case was that the dinner was provided with the corrupt intention to influence the voters in the election on 2 April, and that, by providing it, the Appellant was incurring election expenses on behalf of the candidates whose cause had been promoted, and this was without the authorisation of those candidates. The defence case was that the Appellant was generous and the dinner was no different to others that he held for his constituents to
25 keep them abreast of what he was doing on their behalf and to solicit their views. On appeal, it was submitted, first, that the magistrate erred in his definition of an ‘election meeting’. Second, it was argued that s 7(ii), which provided ‘The serving of meals of any kind incidental to an election meeting shall of itself prima facie be deemed corrupt within the meaning of this section’, threw upon the Appellant the obligation of proving, on the balance of probabilities, that the provision of a meal incidental to the election meeting was not corrupt and that by placing that onus upon him, he was deprived of his right to be presumed innocent as enshrined in article 11 of the Bill of Rights Ordinance. Third, it was contended that the magistrate erred in finding that ‘election expenses’ were incurred on behalf of the candidates because it mattered not that he did so without their prior knowledge or agreement. It was argued that knowledge or agreement of the candidate to the incurring of election expenses was necessary to the definition. If not, the words ‘on the candidates behalf’ would be otiose. Held : (1) ‘Election meeting’ meant a meeting organised by a person for election campaigning purposes, or with a view to promoting the candidature of a person either directly or indirectly. The intention of the legislature in the wording of s 7 must have been to strike at the practice of the serving of meals to a gathering promoting the candidature of a particular person or persons so as to affect their votes. To narrow that definition by restricting it to gatherings held by the candidate himself or by any other person with consent on his behalf would narrow the scope of the section unduly. The words ‘election meeting’ were to be given their ordinary meaning; (2) It was the policy of the legislature that elections be kept free of corruption and, given that an honest legislature was essential to the proper governance of Hong Kong, measures to ensure that honesty were very important. S 7(ii) did not contravene article 11 of the Bill of Rights Ordinance; (3) ‘Election expenses’, as defined in s 2 of the Corrupt and Illegal Practices Ordinance, meant ‘incurred by a candidate and by any other person on the candidate’s behalf on account of or in respect of the conduct or management of the election or for the purpose of promoting or procuring the election of that candidate’. The words ‘on the candidates behalf’ re-enforced the intent of the definition that the expenses incurred by another must be in the election of that candidate and not the election at large or any other candidate. On the ordinary construction of the definition, knowledge and/or agreement of
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX A. p. 4 - p. 7 Hong Kong Co
Page 5 and 6: 5 consciously taken the potentially
Page 7 and 8: 7 other steps taken to prevent the
Page 9 and 10: 9 CA 200/2000 Leong, Wong & Keith J
Page 11 and 12: 11 A court ….. should think long
Page 13 and 14: 13 and his offer to plead to mansla
Page 15 and 16: 15 C. MAGISTRACY APPEALS/ AGAINST C
Page 17 and 18: 17 supermarket could be distinguish
Page 19 and 20: 19 Section 148A of the Ordinance pr
Page 21 and 22: 21 letter dated 22 October 1997 to
Page 23: 23 (3) [English digest of MA 9
Page 27 and 28: 27 (1) R v Lennard [1973] 1 WLR 483
Page 29 and 30: 29 D. MAGISTRACY APPEALS/ AGAINST S
Page 31 and 32: 31 The facts showed that whilst the
Page 33 and 34: 33 (2) Although the magistrate did
Page 35 and 36: 35 (1) (2) 20 [English d
Page 37 and 38: 37 E. PRACTICE AND PROCEDURE CA 87
Page 39 and 40: 39 F. COSTS IN CRIMINAL CASES HK

刑事檢控科各律師/高級律政 - Department of Justice

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