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CFA clarifies the meaning of “corruptly” in the Elections (Corrupt and Illegal Conduct) Ordinance

Commentary by Tina Mok and Adrian Lo

The Court of Final Appeal (“CFA”) on 11 March 2020 handed down its judgment in HKSAR v Cheng Wing Kin [2020] HKCFA 3 examining the meaning of “corruptly” in s.7 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) (“ECICO”).

Background

The appellant was convicted of offences relating to corrupt conduct at the 2015 District Council Election, contrary to ss.6 and 7(1) of the ECICO before the District Court.  In particular, he offered money to persons associated with localist political organizations as an inducement for them either to stand themselves, or to get others to stand, as a candidate in the election.  He did so to divert votes which otherwise might be cast for “pan-democratic” candidates – a strategy known as “vote splitting” or “𠝹票” in an election conducted under a “first past the post” system which permitted many candidates to compete in a constituency but granting each voter only one vote (see ss.29 and 41 of the District Councils Ordinance (Cap.547) (“DCO”)).

Sections 6 and 7(1) of the ECICO

The offence is created by s.6 of the ECICO:

“(1) A person who engages in corrupt conduct at an election commits an offence…”

The different “corrupt conduct” caught by the ECICO may be grouped as:

  • Conduct involving some form of “bribery” (sections 7, 11, 12 and 21);
  • Conduct involving use of force or duress (sections 8 and 13);
  • Conduct involving deception (sections 9, 14 and 15)
  • Conduct involving interference with the election process (sections 10, 16, 17, 18 and 20)

The relevant provision in the present case was s.7(1) of the ECICO which provides that:

(1) A person engages in corrupt conduct at an election if the person corruptly
(a) offers an advantage to another person as an inducement for the other person—
(i) to stand, or not to stand, as a candidate at the election…
(c) offers an advantage to another person as an inducement for the other person to get, or try to get, a third person—
(i) to stand, or not to stand, as a candidate at the election…

“Advantage” is defined in s.2(1) of the ECICO as:

“(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…”

At issue was the meaning and effect of the word “corruptly” qualifying the words “offers an advantage”.

The meaning of “corruptly”

The CFA explained that the statutory purpose of the ECICO is to promote fair, open and honest elections, and to prohibit contrary conduct.

The CFA observed that a broad range of conducts including many which do not affect the integrity of an election potentially qualify as offering an advantage.  An example was:

“D, a member of the Legislative Council, considers a young member of the same party as a promising potential candidate for election to the legislature.  He offers that person employment as his research assistant at a modest salary in order to give him insights into the work of a legislator in order to prepare him for possible candidacy in elections due to be held a year later.  Such employment qualifies as an “advantage”.   And while the offer of such employment might be thought to fall within section 7(1)(a) as an inducement for the young person to stand as a candidate at the election, it may be difficult to see how criminalisation of such an arrangement would be justified.  Much of course depends on the facts of any given case.”

As such, the insertion of “corruptly” particularly in s.7(1) of the ECICO is to introduce a purposive limit to the broad definition of “advantage”.  The word “corruptly” operates to confine the offence to conduct which has an objective tendency to undermine “fair, open and honest” elections.

So, the question was whether the advantage was “corruptly offered”, meaning an advantage of such a nature and offered in such circumstances as to have a tendency to undermine fair, open and honest elections.  If not, the conduct was not corrupt, and the offence was not committed.  “Corruptly” therefore qualifies the actus reus, and does not introduce further mens rea requirement.

Insofar as the mens rea requirement is concerned, the CFA held that the prosecution need not prove that the defendant had a specific intention to hinder elections to be conducted fairly, openly and honestly. The mens rea is an intention to do the prohibited acts which constitute the actus reus of the offence.

The CFA concluded that the appellant’s offer of advantage plainly had a tendency to undermine a fair, open and honest election.  In coming to this conclusion, the CFA observed that:

  • The appellant had as his objective, diverting votes from targeted candidates and thus sought to manipulate the outcome of the election against them.
  • He induced or sought to induce the procurement of candidates to stand in part for their own personal gain rather than any proper purpose. Their candidature would not have been honest or open.

Concluding remarks

The CFA took up the task of determining which conducts (at least where s.7(1) is concerned) fall outside those acceptable in a fair, open and honest election, and in doing so set standards in protecting the integrity of our elections.  The principles expounded by the CFA will impact also on election petitions where petitioners seek to unseat a candidate on the ground that he or she was not duly elected.  In this connection, the grounds often relied upon include where “corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election” or “corrupt or illegal conduct was generally prevalent at or in connection with the election” (see s.49(1)(a)(ii) and (iii) of the DCO).  They are defined as those in contravention of the ECICO.

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