Hon Yeung VP:
高等法院上訴法庭副庭長楊振權：

Introduction
引言

The 2015 Hong Kong District Council Election (“2015 Election”) was held on 22 November 2015, with the nomination period running from 2 October 2015 to 15 October 2015. Pursuant to the relevant election regulations, the election expenses of each candidate was subject to a maximum of $63,100.
2015‍年香港區議會選舉（2015‍年選舉）在2015‍年11‍月22‍日舉行，提名期是由2015‍年10‍月2‍日至2015‍年10‍月15‍日。根據有關選舉規例，每名候選人的選舉開支上‍限是63,100元。

The 2nd Defendant Ku Ka-ho (“Ku”) is the founder of “All People Spontaneous” (“APS”), one of the localist political organizations. The 3rd Defendant Chan Kin-loong (“Chan”) and an immunized prosecution witness Cheung Sin-kin (“Cheung”) were both members of APS.
第二被告人顧‍家‍豪（顧）是其中一個本土政治組織「全‍民自發」（APS）的創立人。第三被告人陳建隆（陳）和獲特赦的控方證人張善健（張）都是APS的成員。

On 20 August 2015, an Internet rumour had it that the 1st Defendant Cheng Wing-kin (“Cheng”) would subsidize members of localist political organizations in taking part in the 2015 Election, with the objective of “snatching votes”, i.e. causing those candidates not of their preference to lose the election.
2015‍年8‍月20‍日，網上流傳一項消息指第‍一被‍告‍人鄭永健（鄭）會資助本土政治組織人士參加2015‍年選舉，目的是“鎅票”，即令某些他們不屬意的參選人敗選。

The prosecution alleged that Cheng had approached various localist community organizations prior to the 2015 Election, indicating his willingness to subsidize them in sending candidates to stand in certain constituencies specified by him (including the Lee On, Tai Shui Hang and On Tai constituencies in Shatin). The various persons whom Cheng approached turned down his offer. However, Ku and Chan accepted HK$150,000 to HK$200,000 offered by Cheng by way of subsidy, as an inducement for Ku to procure Chan to stand as a candidate in a specified constituency at the 2015 Election.
控方指鄭在2015‍年選舉前接觸多個本土社區組‍織，表示願意資助它們派人在某些他指明的選區（包括沙‍田的利安、大水坑和鞍泰選區）參選。鄭接觸的多名人士都拒絕鄭的建議，但顧和陳則接受了鄭建議資助的15至20‍萬港元作為顧促‍使陳在2015‍年選舉在某個指明選區中參‍選的誘因。

As a result of the above incident, Cheng was charged with a total of 13 offences contrary to the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 of the Laws of Hong Kong (“the Ordinance”). Charges 1 and 2 respectively alleged that Cheng induced Wong Hok-lai to stand as a candidate and induced Wong Hok-lai to get another person to stand as a candidate. Charge 4 alleged that Cheng induced Tsang Ka-lam to get another person to stand as a candidate. Charges 6 and 7 respectively alleged that Cheng induced Wong Chun-yeung to stand as a candidate and induced Wong Chun-yeung to get another person to stand as a candidate. Charge 9 alleged that Cheng induced Leung Chung-hang Sixtus to get another person to stand as a candidate. Charge 11 alleged that Cheng induced Lee Man-ho Leos to stand as a candidate. Charge 12 alleged that Cheng induced Wan Hiu-yee (“Wan”), his ex-girlfriend, to get another person to stand as a candidate. Charges 3, 5, 8 and 10, being the respective alternative charges for Charges 2, 4, 7 and 9, respectively alleged that Cheng induced community organizations such as “Shatin Community Network”, “Shatin New Alliance of the Pragmatic”, “Tung Chung Future” and “Youngspiration” to send people to stand as candidates in the constituencies specified by Cheng. Charge 13 alleged that the three defendants conspired to corruptly engage in illegal conduct at an election, namely, Ku accepted an advantage, offered by Cheng, of HK$150,000 to 200,000 as an inducement for Ku to procure Chan to stand as a candidate at the 2015 Election in a constituency specified by Cheng.
上述事件導致鄭被控共13項違反香港法例第‍554‍章《選舉(舞弊及非法行為) 條例》（《條例》）的控‍罪。第‍一、二‍項控罪分別指鄭利誘黃‍學‍禮參選及利誘黃‍學‍禮令另‍一人參選。第‍四‍項控罪指鄭利誘曾‍家‍霖令另一人參選。第‍六、七‍項控罪分別指鄭利誘王‍進‍洋參選及利誘王‍進‍洋令另‍一人參選。第‍九‍項控罪指鄭利‍誘梁‍頌‍恆令另一人參選。第‍十一‍項控‍罪指鄭利誘李‍文‍浩參選。第‍十二‍項控罪則指鄭利‍誘其前女友溫‍曉‍怡（溫）令另一人參選。第‍三、五、八和十‍項控罪分別是第‍二、四、七及九‍項控罪的交替控罪，分別指鄭利誘“沙田社區網絡”、“沙田新幹綫”、“東涌人”及“青年新政”等社區組織派人在鄭指定的選區中參選。第‍十三項控罪指三‍名被告人串謀在選舉中舞弊地作出某些違法行為，即顧接受鄭提供15‍至20‍萬港元的利益作為顧促‍使陳在2015‍年選舉在某個鄭指明的選區中參選的誘因。

None of the defendants pleaded guilty to any of the charges, and they were tried before District Judge Pang (“trial judge”).
三‍名被告人都否認全部控罪，並在區域法院法官彭‍中‍屏（原‍審‍法‍官）席前受審。

On 24 October 2016, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11 and 13. The trial judge took the view that the alternative charges (i.e. Charges 3, 5, 8 and 10) were unnecessary, and also acquitted Cheng on Charges 7, 8 and 12 for the reason that the circumstances in which Cheng offered the advantages in relation to those charges were unclear. The trial judge also convicted Ku and Chan on Charge 13.
2016‍年10‍月24‍日，原審法官裁定鄭第一、二、四、六、九、十一及十三項控罪罪名成立。原審法官認為第‍三、五、八及十項交替控罪無必要，而第七、八及十二項控罪因鄭提供利益的情況不清晰，因此裁定鄭該些控罪罪名不成立。原審法官亦裁定顧和陳第十三項控罪罪名成立。

The amounts involved in Charges 1, 2, 6, 9, 11, and 13 were, respectively, $200,000, $200,000, $150,000, $150,000, $150,000, and $150,000 to $200,000. The amount involved in Charge 4 was not specified.
第‍一、二、六、九、十一及第‍十三‍項控罪所涉的金‍額分別是20‍萬元、20‍萬元、15‍萬元、15‍萬元、15‍萬元及15‍至20‍萬元。第‍四‍項控罪所涉的金額則沒有指明。

On 26 October 2016, the trial judge imposed on Cheng concurrent sentences of 18 months’ imprisonment for each of Charges 1, 2, 4, 6, 9 and 11, and a consecutive sentence of 2½ years’ imprisonment for Charge 13. The total term of imprisonment for Cheng was 4 years.
2016‍年10‍月26‍日，原審法官判處鄭第‍一、二、四、六、九及十一‍項控罪每項入獄18‍個月，同期執行，而第十三項控罪則入獄2‍年6‍個月，但分期執行。鄭的總刑期為4‍年監禁。

In respect of Charge 13, the trial judge sentenced Ku and Chan to imprisonment for 2½ years and 2 years and 4 months respectively.
就第十三項控罪，原審法官判處顧和陳分別每人入‍獄2‍年6‍個月和2‍年4‍個月監禁。

Each of the three defendants now applies for leave to appeal against conviction and/or sentence.
三名被告人都不服定罪及判刑，分別提出上訴許可申請，要求獲准就定罪及/或判刑上訴。

The prosecution case and evidence
控方的案情及證據

It was the prosecution case that Cheng, purportedly acting upon the instruction of a “Chief Li”, offered advantages to induce localist political organizations to send candidates to designated constituencies at the 2015 Election, for the purpose not of winning but of preventing some other candidates from winning by diluting their voter base by means of “vote snatching”. Cheng said to those in charge of localist political organizations that anyone who agreed to stand as a candidate in accordance with his instructions had to submit an election report and run in a designated constituency. He stated clearly that, whether the person who agreed to stand as a candidate won the election or not, as long as he/she obtained about 200 votes, he/she would receive a subsidy between $150,000 and $200,000 in cash, and he/she would be free to decide how to use the subsidy.
控方指鄭自稱是根據一‍名“李總”的指示，利誘本‍土‍派政治組織派人到某指定選區參加2015‍年選舉，目的並非是取得席位，而是要以「鎅票」手法分散某些候選人的票源，令他們不能當選。鄭向本土派政治組織的負責人表示同‍意按他的指示參選的人須提交選舉報告書及在指定地區參選。鄭表明同意參選人只須取得約200‍票，勝負不計，就‍能取得以現金發放的15‍至20‍萬元資助，而收款者可以自由運‍用他資助的金額。

Yuen Fong of “Youngspiration” made an audio recording of his meeting with Cheng. According to the recording, Cheng claimed to be representing a consortium which was capable of providing election funding of $150,000, on condition that “Youngspiration” would send a candidate to the constituency he designated. The fund would be paid in cash by three instalments: the first instalment, 25%, would be paid upon submission of an election proposal by the candidate; the second instalment, 50%, would be paid upon successful signing up; and the third instalment, 25%, would be paid after the conclusion of the election. Lee Man-ho Leos, founder of another localist organization “Cheung Sha Wan Community Establishment Power”, further alleged that when he asked Cheng over the phone what designated constituencies there were to choose from, Cheng “changed his voice” before naming ten-odd constituencies.
“青年新政”的袁方有將和鄭會面的過程錄音。錄‍音內容顯示鄭聲稱是代表一‍個財團，可以支付15‍萬選舉經‍費，條件是“青年新政”會派人在他指定的選區參選。選‍舉經費會以現金及分‍三期支付，第一期25%是參選者提交選舉計劃書後支付，第二期50%是報名成功後支付，而第‍三‍期25%是選舉完畢後支付。另一本土組織“長沙灣社區發展力量”的創立人李文浩更指當他致電鄭，問他有甚麼指‍定選區可以選擇時，鄭先“變聲”，才說出十多個選區的名稱。

The prosecution alleged that APS was one of the localist organizations that Cheng induced, that members of APS including Ku, Chan and Cheung agreed to take Cheng’s subsidy of $150,000, and that Ku arranged for Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. According to the agreement among the parties, the $150,000 subsidy offered by Cheng would be paid by three instalments, with the first instalment, being 25% of the total sum, to be paid after the submission of an election proposal. Eventually, after Chan handed an election proposal to Ku, Cheng handed $36,000 to Ku during a dinner on 9 August 2015 which the four conspirators attended.
控方指APS是鄭利誘的本土組織之一，而APS的成員，包括顧、陳和張同意接受鄭提供的15‍萬元資助，並‍由顧安排陳在鄭指定的選區參加2015‍年選舉。根據雙方的協‍議，鄭答應資助的15‍萬元資助會分三期支付，第一期是總額的25%會在提交選舉計劃書後支付。結果，當陳將選‍舉計劃書交了給顧後，在四名串謀者在2015‍年8‍月9‍日出‍席的晚餐上，鄭將36,000‍元交了給顧。

The prosecution witnesses against Cheng included: Wan; Wong Hok-lai, representative of “Shatin Community Network”; Tsang Ka-lam, representative of “Shatin New Alliance of the Pragmatic”; Wong Chun-yeung, Chairman of “Tung Chung Future”; Leung Chung-hang Sixtus and Yuen Fong, representatives of “Youngspiration”; Lee Man-ho Leos, founder of “Cheung Sha Wan Community Establishment Power”; and Cheung.
針對鄭的控方證人包括溫、“沙田社區網絡”的代‍表黃‍學‍禮、“沙田新幹線”的代表曾‍家‍霖、“東涌人”的主‍席王‍進‍洋、“青年新政”的代表梁‍頌‍恆和袁‍方、“長沙灣社區發展力量”的創立人李‍文‍浩及張。

All the above prosecution witnesses clearly stated in testimony that they met Cheng on various dates. During their meetings, Cheng said that he represented a consortium seeking to subsidize the said localist political organizations in sending candidates to the geographical constituencies he designated for the election, and an organization which agreed to do so could receive a subsidy in cash ranging from $150,000 to $200,000. Cheng made it clear to the witnesses that those who agreed to run as candidates would receive subsidies as long as they obtained about 200 votes, whether or not they won the election, and that he would not ask how the money would be spent because his sole objective was to “eliminate the targets” and “dilute the voter base”. In her testimony, Wan even said she, as Cheng’s girlfriend, had accompanied Cheng to many meetings with people from the aforesaid localist organizations. Wan said that she herself used to participate in a localist organization, and that Cheng had also asked her to find some localists to stand as candidates at the election and mentioned that she would be rewarded with a five-digit sum. According to the testimonies of the above witnesses, when Cheng was offering the election subsidies, he had no clue at all who would accept his offer and stand as candidates at the 2015 Election.
上述控方證人在作供時都表明在不同日子有和鄭會‍面，會面時鄭表示自己代表某財團，目的是資助該些本土政治組織派人到他指定的地區參選，而如組織同意便可以取‍得15至20‍萬元的現金資助。鄭有向證人表明同意參選的‍人，不論勝負，只要取得約200票就可以得到資助，而他亦不會過問錢的用途，原因是他的目的只是要“清除目標”及“分散票源”。溫在作供時更表示她多次以鄭女友的身份陪同他和上述本土組織人士見面。溫指她自己曾參與過一個本土組織，而鄭亦曾要求她找一些本土派人士參選，並提及會給予她五‍位數字的報酬。根據上述證人的證供，鄭提出資‍助參選的建議時，他根本不知道誰人會接受他的建議參加2015年選舉。

Wan said she went to a restaurant in Mong Kok with Cheng on 12 July 2015 to meet APS members including Ku and Cheung. At that meeting, Cheng mentioned to Ku the subsidy plan and said Ku could decide for himself how to use the subsidy.
溫指她在2015‍年7‍月12‍日陪同鄭在旺角一間餐廳和APS成員，包括顧和張會面。會面時鄭向顧提出有關的資助計劃，並表示顧可以自行運用該筆資助款項。

Wan stated that she accompanied Cheng to a second meeting with APS members on 19 July 2015. Ten-odd APS members attended the meeting, including Ku, Chan and Cheung. Cheng reiterated that sponsorship would be given to APS for sending someone to stand as a candidate at the election.  Cheng stressed that APS would not have to change its political stance, and that he would make the sponsorship payment by three instalments as long as there was an APS member who stood in a geographical constituency designated by him and obtained around 200 votes, whether or not that person won the election, but APS would first have to submit a candidacy report. At the time, Chan said he would stand as a candidate and gave an introduction about his own background.
溫指在2015‍年7‍月19‍日再有陪同鄭和APS成員第二次會面。當時APS有十‍多名成員出席，包括顧、陳和張，而鄭重申會贊助APS派人參選。鄭強調APS毋須改變其政治立場，只要APS有成員在他指定的地區參選並取得約200‍票，則不論是否勝出，他都會分三期支付贊助費，但‍APS要先交一‍份參選報告書。當時陳說他會參選，並有介紹自己的背景。

After the matter of election subsidies came to light, Wan accompanied Cheng to Macau on 25 August 2015 for a meeting in a hotel with the person whom Cheng referred to as Chief Li. During that time, Cheng even used Wan’s mobile phone for communication purposes as he feared that the media would find out he had been in contact with Ku and Chief Li.
當資助參選事件曝光後，溫在2015年8月25日陪‍同鄭前往澳門，並在一‍間酒店和鄭指稱的李總會面，期間鄭更有用溫的手機作通訊之用，原因是他害怕傳媒發現他有和顧及李總聯絡。

The prosecution evidence also included facts which had been admitted by both parties, including:
控方的證據亦包括一些雙方承認的事實，包括：

(i)that Ku’s mobile phone contained a record of the messages sent between Cheng and Ku from 13 August 2015 to 15 August 2015 [Exhibit P25], a record of the messages that Ku sent to Cheung on 15 July 2015 [Exhibit P26], and a record of the messages sent between Ku and Chan from 16 July 2015 to 12 August 2015 [Exhibit P27];
(一)顧的手提電話內載有鄭和顧在2015年８月13‍日至2015年8月15日相互傳遞的訊息紀錄（證物P25）；顧在2015年7月15日向張發出的訊息紀‍錄（證物P26）及顧和陳在2015年7月16‍日至2015‍年8月12日期間相互傳遞的訊息紀錄（證‍物P27）；

(ii)that Chan’s mobile phone contained a record of the messages that Ku had sent to Chan on 17 August 2015 [Exhibit P28] and a record of the messages sent between Chan and Cheung from 26 July 2015 to 30 August 2015 [Exhibit P29];
(二)陳的手提電話內載有顧在2015年8月17日向陳發出的訊息紀錄（證物P28）及陳和張在2015年7月26日至2015年8月30日期間相互傳遞的訊‍息紀錄（證物P29）；

(iii)that Cheung’s mobile phone contained 52 screenshots of dialogue messages [Exhibit P46]; and
(三)張的手提電話內載的52張通訊對話截圖的照片（證物P46）；及

(iv) that, of the 15 photographs [Exhibit P47] stored in Ku’s mobile phone, some were identical with a number of documents in Exhibit P46.
(四)顧的手提電話內載的15張照片（證物P47）部‍分和證物P46的多張文件相同。

The above exhibits were in line with the prosecution case and showed that there had been an agreement among the three applicants and a subsidy from Cheng had been accepted for sending someone to stand as a candidate at the 2015 Election.
上述證物都和控方的指控相符，顯示三名申請人有協議並‍接‍受鄭的資助，派人參選2015年選舉。

In his testimony, Cheung said that he was present at the meeting with Cheng on 19 July 2015. After Cheng left, the APS members went on with the meeting, during which Ku instructed Cheung to prepare a candidacy report on behalf of Chan because both Ku and Chan were less than proficient in the Chinese language.  Cheng had also mentioned the need to go after another candidate, Frederick Fung Kin-kee. Cheung claimed that he had urged Chan to submit the candidacy report and to step up efforts to maintain confidentiality, and that he had assisted Chan in compiling the candidacy report.
張在作供時表示他有出席2015‍年7‍月19‍日和鄭的會‍面，而當鄭離開後，APS成員繼續開會。期間顧指使張替陳準備一份參選報告書，原因是顧和陳的中文水平不足。鄭亦提過要追擊另一名參選者馮‍檢‍基。張指自己曾催促陳提交參選報告書及加強保密工夫，而他是有份協助陳準備該份參‍選報告書。

Cheung went on to say that he met with the three defendants in an eatery in Tsuen Wan on the evening of 9 August 2015, during which Cheng indicated that although Chan’s candidacy report was not satisfactory, he would still pay $36,000 in order to show the strength of his consortium. He gave cash of $36,000 to Ku, who signed a document to acknowledge receipt.  Cheng further asked the APS members not to receive advantages from both sides, and suggested that Chan run an election campaign programme at the online radio station hosted by Cheng.  Cheung clearly stated that the messages on his mobile phone had been sent by those in the APS election campaign group. The group members included Ku and Chan, while the anthony cheng small letter A mentioned in the messages referred to Cheng.
張續稱在2015‍年8‍月9‍日晚上，他和三‍名被‍告‍人在荃灣一‍間食店會面，期間鄭表示陳的參選報告書做得不‍好，但為了顯示他財團的實力，他仍會支付36,000‍元，並將36,000‍元現金交了給顧，而顧亦有在文件上簽收。鄭更對APS成員說不要收兩‍家茶禮，並提議陳在他主持的網‍台做競選節目。張表明他的手提電話內的訊息是APS競選群‍組的人發出的。群組成員包括顧和陳，而訊息內提及的anthony cheng 小A就是鄭。

On 20 August 2015, the above incident of subsidized candidacy came to light on the Internet, which in the end led to the arrest and prosecution of the defendants.
2015‍年8‍月20‍日，上述資助參選事件在網上曝光及最終導致各被告人被捕及遭檢控。

Defence case and evidence
辯方的立場及證據

The defence did not take much issue with the basic factual evidence adduced by the prosecution. Cheng agreed that he had approached a number of individuals from localist organizations and proposed subsidizing their members to stand as candidates at the 2015 Election. His case was that his true intention was not to subsidize others to stand as candidates, but rather to get into contact with persons from localist organizations to get wind of their improper relationship with the pro-democratic political parties, the reason being that he had noticed from online information that localist organizations and pro-democratic organizations might have some improper plans for the election.
辯方對控方的基本事實證據爭議不大。鄭同意有和多個本土組織人士接觸及提出資助組織成員參加2015‍年選‍舉。他的立場是他真正的目的並非資助他人參選，而是為‍了接觸本土組織人士，以打聽他們與泛民政黨的不當關‍係，因為他從網上資訊留意到本土組織與泛民組織可能有一些不當的選舉陰‍謀。

Cheng stressed that as an online radio station host, he had always wanted to find material for his radio shows and to attract Chief Li to invest in his productions.
鄭強調他是網台主持，而他一直希望找資料作‍為網‍台節目的材料及吸引李總投資在他的拍攝製作。

Cheng agreed that he did have meetings with APS members on 12 July and 19 July 2015, during which he put forward his plan to subsidize APS member(s) to stand as candidate(s) at the election, but this, Cheng said, was merely an excuse for him to approach APS. Cheng also admitted that he had paid Ku $36,000, but this, Cheng said, was for the purpose not to subsidize APS member(s) to stand as candidate(s), but to maintain a connection with APS so that it would be easier for him to film Chan’s election campaign. Cheng agreed that he had prepared an acknowledgement of receipt for Ku to sign, and that the reason for his payment should have been stated thereon. However, he first claimed that the receipt had been lost, and subsequently admitted that the receipt had been intentionally destroyed in order to curb unnecessary misunderstandings. Cheng agreed that he had received an election plan from Ku, but he was adamant that the $36,000 paid by him had nothing to do with subsidizing Chan to stand as a candidate at the election. His version was that the subsidized sum was for funding APS’s activities, with a collateral condition that Chan or APS members were required to assist him in filming the campaign process.
鄭同意在2015‍年7‍月12‍日和7‍月19‍日確有和APS成員會面及提出資助APS成員參選的計劃，但他表示該說‍法只是接觸APS的藉口。鄭亦承認有支付過36,000‍元給顧，但他指目的並非資助APS成員參選，而是為了維持和APS的聯繫，以便他能拍攝陳的參選過程。鄭同意有準備收條給顧簽收，收條應有其付款的原因。但他先表示已遺失了該收‍條，後來又承認故意毀滅該收條，以減少不必要的誤會。鄭同意曾收到顧交給他的選舉計劃書，但力稱他支付的36,000‍元和資助陳參選無關。他的說法是資助金額是贊助APS的活動經費，附帶條件是陳或APS成員要協助他拍攝競選的過程。

Ku denied that the receipt of the $36,000 from Cheng was the consideration for subsidizing APS in sending someone to stand as a candidate at the election. He claimed that Cheng had indicated his intention to stand as a candidate at the District Council Election, but he would need assistance and protection by someone. Ku stated that the $36,000 in question was a reward to APS for helping Cheng run in the election and had nothing to do with Chan’s candidacy. Ku denied having arranged for Chan to stand as a candidate at the election. He also indicated that he had not instructed or arranged for Cheung to assist Chan in compiling any election report.
顧否認收取鄭的36,000‍元是鄭資助APS派人參選的代價。他指鄭表示想參加區議會選舉，但要人協助及保護他。顧指涉案的36,000‍元是APS協助鄭參選的酬勞和陳參‍選無關。顧否認有安排陳參選，亦表示他沒有指使或安排張協‍助陳撰寫任何選舉報告書。

Chan stated that his participation in the 2015 Election had nothing to do with Ku’s receipt of $36,000 from Cheng. Chan admitted he had attended the gathering for APS members on 19 July 2015. During the gathering, Cheng talked about offering a sponsorship of $150,000 to APS for the latter to send someone to stand as a candidate at the election. However, Chan asserted that his agreeing to stand as a candidate at the election had nothing to do with the sponsorship offered by Cheng, and that he did not even know that a condition was attached to Cheng’s payment of the sum to APS.
陳表示他參加2015‍年選舉和顧收取鄭的36,000‍元無關。陳承認有出席APS成員在2015‍年7‍月19‍日的聚會，而會‍上鄭有提及贊助150,000‍元給APS派人出選，但陳力稱他同意參選和鄭的贊助費無關，而他更不知悉鄭支付APS的金錢是有附帶條件的。

Chan denied that Cheng had during the meeting talked about going after Frederick Fung. He also denied having had discussions with Cheng and Ku in secret in order to prevent others from gaining knowledge of what they discussed. Chan claimed that as he was unable to obtain assistance from APS, he did not stand for election. However, he agreed that Cheung had prepared a candidacy proposal for him.
陳否認在會議中鄭曾提及過要追撃馮檢基，亦否認有‍和鄭及顧秘密商談，避免他人知悉談話內容。陳聲稱因為取不到APS的協助，他最終沒有參選，但他同意張有為他撰寫了一‍份參選計劃書。

Apart from the above issues of fact, the defence’s stance was that none of the defendants had “corruptly” engaged in the conduct alleged by the prosecution as referred to in the charges.
除了上述事實爭議外，辯方的立場是控方指各被‍告‍人的行為並不符合控罪所指他們有“舞弊地”作出控‍方所指的行為。

The trial judge’s findings
原審法官的裁決

The trial judge first analyzed the parties’ disagreement as to fact. He pointed out that what Cheng said was not only confusing but wholly irrational. The trial judge said that, given Cheng’s financial situation at that time, he could not possibly have donated $36,000 to APS unconditionally for the purpose of maintaining contact with APS or filming Chan’s election campaign. The trial judge took the view that it was also not possible for Cheng to have all along kept his girlfriend Wan in the dark about the true intention of his subsidizing localists to stand as candidates at the election.
原審法官先分析雙方就事實上的分歧。原審法官指‍出鄭的說法不單混亂，更全不合情理。原審法官指出以鄭當‍時的經濟情況，他不可能是為了和APS保持聯絡或是為‍了拍攝陳的參選過程而無條件捐贈36,000‍元給APS。原審法‍官認為鄭亦不可能將他資助本土派人士參選的真正目的一直將其女友溫蒙在鼓裡。

The trial judge emphasized that, had Cheng wanted to gather evidence or information on political conspiracies among localist organizations and pro-democrats, he could not possibly have acted in the manner as alleged in the present case, nor would he have “changed his voice” before answering Lee Man-ho Leos, about the choice of constituencies.
原審法官強調如鄭要搜查本土組織和泛民的政‍治陰謀證據或資料，他不可能以涉案的手法行事，更不會“先變聲”才回答李文浩問他有甚麼選區可以選擇。

The trial judge rejected Cheng’s explanation that his true intention in offering to subsidize localist organizations was to inquire about the electoral conspiracies between them and the pro-democrats and that it had nothing to do with inducing others to stand as candidates at the election.
原審法官否定鄭的解釋指他提出資助本土組織的真正目的是查探它們和泛民之間的選舉陰謀和誘使他人參‍選無關。

The trial judge pointed out that at the meetings on 17 and 19 July 2015, Cheng never told Ku that he wanted APS members to help him stand as a candidate at the election. Nor did the messages among APS members mention that Cheng had asked APS members to help him stand as a candidate at the election and that he would pay a reward to APS. The trial judge pointed out that Ku himself had admitted he had never told Chan that Cheng had requested APS to provide support services to him. The trial judge stressed that Ku’s version in no way tallied with the documentary evidence, which showed that the first instalment of $36,000 paid by Cheng was related to Chan’s standing as a candidate at the election.
原審法官指出在2015年7月17日和19日的會面，鄭從來沒有向顧提出過要APS成員助他參選，而APS成員的通訊內容亦沒有提及過鄭要求APS成員助他參選，及會支‍付酬勞給APS。原審法官指出顧本人亦承認從來沒有向陳說過鄭要求APS提供支援服務給他。原審法官強調顧的說‍法更和案中的文件證據全不脗合，原因是該些文件顯示鄭支付的36,000元首期是和陳的參選有關。

The trial judge also pointed out that Ku was repeatedly evasive under cross-examination and that what he said was unconvincing. The trial judge did not find Ku to be a credible or reliable witness.
原審法官亦指出顧在盤問下屢次迴避問題，而其說‍法更不具說服力。原審法官認定顧並非一名可信或可靠的證人。

The trial judge took the view that what Chan said, namely that his decision to stand as a candidate at the election was his own and had nothing to do with Ku’s influence, made no sense and did not tally with the evidence of Cheng and Cheung as well as the documentary evidence. The trial judge considered that Chan was not a veracious and reliable witness and that it would have been of no significance even if Chan had originally wished to stand as a candidate at the election.
原審法官認為陳指自己決定參選是個人的決定和顧的影響無關的說法不合理，亦與鄭和張的證言及文件證據不‍符。原審法官認為陳並非一‍名誠實可靠的證人，而即使他本來也想參選一事並不重要。

The trial judge found that the evidence of all the prosecution witnesses was rational and reasonable and was also supported by documentary evidence. On the contrary, the trial judge rejected the evidence of the three defendants, finding it evasive, ambiguous, unreasonable and illogical, and even contrary to the documentary evidence.
原審法官裁定所有控方證人的證供合情合理，而他‍們的證供都得到文件證據支持。反之，三‍名被‍告‍人的證供躲閃隱晦、含糊不清、不合情理、違反邏輯，更和文件證據背道而馳。原審法官拒絕接納三‍名被告人的證供。

The trial judge found that Ku and Chan agreed to have Chan stand as a candidate at the election by reason of Cheng’s monetary inducement. The trial judge pointed out that Cheng did not care whether the candidate(s) sent by APS would win the election. His sole concern was whether Chan would stand as a candidate in the constituency specified by him and obtain 200 votes. The trial judge emphasized that the amount Cheng agreed to pay went well beyond the statutory maximum for election expenses, and that Cheng had even clearly stated that the money would be paid in cash and could be spent freely. The trial judge took the view that Cheng’s funding was meant to be a monetary reward for Chan to stand as a candidate at the election, not an election donation. The trial judge further stated expressly that it was Cheng’s intention to use money to influence the results of the election, and that Ku and Chan must have known that Cheng was using money to buy their clout, but they still accepted Cheng’s reward and had Chan stand as a candidate at the election.
原審法官裁定顧和陳都是為了鄭的金錢引誘而協‍議由陳參選。原審法官指出鄭不關心APS派出的參選人能否勝出，而只重視陳是否在他指定的選區參選及取得200‍票。原審法官強調鄭答應支付的金額遠超法定選舉經費的上限，更表明金錢會以現金發放，並且可以自由運用。原‍審法官認為鄭出資的目的是作為陳參選的金錢報酬而非選舉捐‍贈。原審法官更表明鄭的目的是用金錢去影響選舉結果，而顧和陳亦必然知道鄭是用錢收買他們的影響力，但他們仍‍然接受鄭的酬勞，由陳參選。

The trial judge also made the following findings of fact:
原審法官亦作出下列事實裁決：

Under the circumstances alleged in the charges, Cheng approached the relevant witnesses and offered them a subsidy of $150,000 to $200,000 as an inducement for them to stand as candidates in specified constituencies at the 2015 Election. The sums subsidized by Cheng would be paid in cash and the payees could freely decide how to use the sums; and
鄭在有關控罪所指的情況下接觸相關證人，向他‍們提出資助15‍至20‍萬元，作為他們在2015‍年選‍舉出選某指定選區的誘因；鄭資助的款項會以現‍金支付，而收款人可以自行決定如何運用該些款‍項；及

Cheng did put forward the subsidy plan to Ku, and Ku indicated that he would consider sending someone to stand as a candidate at the election. Ku also notified Chan, Cheung and other APS members on 15 and 17 July 2015 that a meeting would be held on 19 July 2015, and set out in the messages the conditions of subsidy proposed by Cheng.  At the meeting on 19 July 2015, Cheng reiterated his subsidy proposal and expressly said that as long as a member of APS submitted a candidacy plan, stood as a candidate in the specified constituency at the election and obtained about 200 votes, APS could receive a cash subsidy of $150,000 to $200,000. At that time, Chan indicated that he would stand as a candidate at the election and immediately gave a description of his background. Afterwards, Ku, Chan and Cheung had a discussion and decided to accept Cheng’s proposal and to have Cheung help Chan prepare the candidacy report. Under the agreement among the parties, the $150,000 subsidy by Cheng would be paid by three instalments, the first instalment being 25% of the total amount. Cheung helped Chan prepare the candidacy report, which was then given to Cheng by Ku. Cheng claimed that the report was too simple and therefore, on 9 August 2015, he only paid $36,000 to Ku as the first instalment, instead of the originally agreed 25%, i.e. $37,500.
鄭有向顧提出資助計劃，而顧亦表示會考慮派人參選並在2015‍年7‍月15‍日及17‍日通‍知陳、張及其他APS成員在2015‍年7‍月19‍日開會，並在訊‍息中列出鄭提出的資助條件。在2015‍年7‍月19‍日的會議，鄭重申其資助建議，表明只要APS有成‍員交出選舉計劃書，並在指定地區參選及取得大約200‍票，APS便可以得到15‍至20‍萬元現金資‍助。當‍時陳表示會出選，並即時介紹自己的背景。其‍後，顧、陳和張商討並決定接受鄭的建議及由張協助陳準備其參選報告書。根據雙方的協議，鄭資助的15‍萬元，會分三‍期支付，第一期為總額的 25%。張協助陳撰寫選舉報告書，而顧則將報‍告‍書交了給鄭。鄭以報告書太簡單為理由，在2015‍年8‍月9‍日只支付了36,000‍元給顧作為第‍一‍期金額，而非原定的25%，即37,500‍元。

The trial judge pointed out that the screenshots of dialogue messages shown in the 52 photographs (Exhibit P46) did not tally with what Ku said. The trial judge stressed that Exhibit P46 was contained in Cheung’s mobile phone, and 15 of those photographs (Exhibit P47) were stored in Ku’s notebook computer. The trial judge took the view that Exhibit 46, being real evidence, would not be hearsay evidence and would therefore be admissible if it was not used to prove the truth of the contents of the messages. Exhibit P47 was admissible as it was relevant to whether the three defendants and Cheung had reached an agreement. The undisputed record showed that it was only under cross-examination by the prosecution that Cheng admitted having sent Exhibit P46 to Ku, and by that time counsel for Ku had already finished cross-examining Cheng.
原審法官指出52‍張相片（證‍物 P46）所顯示的通‍訊對話的截圖和顧的說法不脗合。原審法官強調證‍物 P46是載於張的手提電話內，而其中有15‍張相片（證物 P47）是儲‍存在顧的手提電腦內。原審法官認為證物 P46是實物證‍據，如‍果並非用作證明通訊內容為真實，便非傳聞證據，可以呈‍堂。證物 P47則和三名被告人和張是否有達成協議有‍關，故可以呈堂。無爭議的紀錄顯示鄭是在被控方盤問下才承認證物 P46是由他傳送給顧，而當時顧的代表大律師已盤問完鄭。

Based on the prosecution evidence, the trial judge formed the view that the only reasonable inference was that there was an agreement among the three defendants and Cheung by which Cheng would offer a subsidy of $150,000 as consideration for APS sending Chan to stand as a candidate in a constituency specified by Cheng, while Cheung would be responsible for assisting Chan in preparing the election plan and other documentation for the election.
原審法官認為根據控方的證據，唯一的合理推論是三‍名被告人和張有協議，由鄭提供15萬元資助金額，作為APS派陳在鄭指定的選區參選的代價，而張則負責協助陳撰‍寫選舉計劃書及其他參選文書工作。

As to what constituted conduct which was engaged in “corruptly” as alleged in the charges, the trial judge examined in great detail the relevant statute and decided cases. He pointed out that merely engaging in conduct prohibited by the statute did not necessarily constitute a criminal act, unless such conduct was engaged in “corruptly”. The trial judge further agreed that “corruptly” was an additional element of the offence which the prosecution bore the burden of proving. The trial judge found that the word “corruptly” did not carry any meaning of “wickedly”, “immorally”, “dishonestly” or other similar meanings, but required that the offender engaged in criminal conduct for the purpose of something plainly prohibited by the law. The trial judge found that the prosecution had to prove “dual intent” on the part of the defendant, i.e. not only did the defendant intend to induce another person, or be induced by another person, to stand or not to stand as a candidate at the election, but the defendant also intended to prevent the election from being conducted fairly, openly and honestly.
就如何構成控罪所指的“舞弊地”作出的行為，原‍審法官有非常詳細分析有關的條例和判例。原審法官指出單單作出法例禁止的行為，不一定構成犯罪行為，除非該些行為是“舞弊地”作出。原審法官更同意“舞弊地”是額外的罪行元素，故控方有責任證明該元素。原審法官裁定“舞‍弊地”一詞沒有邪惡地、不道德地、不誠實地或其他類‍近的意思，但犯案人作出涉案行為時，他必須以法例明顯禁止的東西為犯案目的。原審法官裁定控方不單要證明被告人有引誘別人或受別人引誘去參選或不參選的意圖，還須要證明被告人有意圖妨礙選舉在公平、公開和誠實的情況下進‍行的“雙重意圖”。

The trial judge found that Cheng corruptly offered advantages to the persons specified in Charges 1, 2, 4, 6, 9 and 11 as an inducement for them to stand or get a third party to stand as a candidate at the 2015 Election, contrary to section 7(1)(a) or 7(1)(g) of the Ordinance.
原審法官裁定鄭有舞弊地向第‍一、二、四、六、九和十一‍項控罪所指的人士提供利益，作為該些人士在2015‍年選舉參選或令第三者參選的誘因，違反了《條例》第7(1)(a)或7(1)(g)條。

The trial judge also found that the three defendants conspired with Cheung for Ku to obtain an advantage from Cheng as an inducement for Ku to get Chan to stand as a candidate at the 2015 Election, contrary to section 7(1)(g) of the Ordinance and section 159A of the Crimes Ordinance, Cap. 200. At the same time, the trial judge found that the three defendants engaged in the above conduct corruptly. Based on the aforesaid findings, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11, and 13 and convicted Ku and Chan on Charge 13.
原審法官亦裁定三名被告人和張串謀，使顧從鄭取‍得利益，作為顧促使陳參加2015‍年選舉的誘因，違反《條‍例》第7(1)(g)條及香港法例第200章《刑事罪行條例》第159A條。原審法官同時裁定三名被告人舞弊地作出上述行為。基於上述裁‍決，原審法官裁定鄭第‍一、二、四、六、九、十一和十三‍項控罪罪名成立，而顧和陳第‍十三‍項控罪亦罪名成立。

The trial judge took the view that the alternative charges, i.e. Charges 3, 5, 8, and 10 were not necessary, and also acquitted Cheng of Charges 7, 8 and 12 for the reason that the circumstances under which Cheng offered the advantages alleged in those charges were not clear.
原審法官認為第‍三、五、八、十‍項交替控罪無必要，而‍第七、八及十二‍項控罪所指鄭提供利益的情況不清晰，因‍而裁定鄭就該些控罪罪名不成立。

Grounds of appeal
上訴理由

None of the three defendants took issue with the findings of fact made by the trial judge, but each of them appealed against conviction, putting forward a number of grounds in support.
三名被告人對原審法官作出的事實裁決不表異‍議，但他們都列出多項理由，支持他們個別的上訴。

Cheng acted in person. In his homemade “Grounds of Appeal”, Cheng alleged that the trial judge erred in finding that he had “corruptly” engaged in the misconduct in question, i.e. offering advantages to others as inducements for them to stand or get third parties to stand as candidates at the 2015 Election. Cheng submitted that the trial judge failed to interpret the word “corruptly” in its broadest sense and also disregarded the interpretations of the same term in other common law jurisdictions.
鄭沒有律師代表，親自行事。在其撰寫的“上訴理‍由書”中，鄭指原審法官錯誤地裁決他有“舞弊地”作出涉‍案的不當行為，即向他人提供利益為誘因，促使該些人參‍選‍或令第三者參選2015年選舉。鄭認為原審法官在解‍釋“舞弊地”一詞時，沒有以最廣義去理解，亦忽視了其他普‍通法地區就同一用詞的解釋。

Cheng submitted that relying solely on the trial judge’s own interpretation of the term “corruptly” would render the scope of the relevant offences so wide as to encompass what was ordinary and reasonable election conduct, and this would go against the development of democratic elections. Cheng submitted that the trial judge should have accepted the proposition made by Mr. Douglas Kwok, counsel for Ku, namely that the court should have called a political scientist to give evidence as an “expert witness” and explain the correct meaning of the term “corruptly” in order to clarify what acts would contribute to the sustainable development of political parties and what acts would be “corrupt”.
鄭認為單靠原審法官自行解讀“舞弊地”一詞會‍令有關罪行覆蓋面太廣泛，將一些平常和合理的選舉行‍為包括在罪行條文內，不利民主選舉的發展。鄭認為原審法官應該接納代表顧的郭憬憲大律師的說法，即法庭要傳召政治科學家出庭，以“專家證人”身份作證，解釋“舞弊地”一‍詞的正確意義，以顯示甚麼行為可以令政黨能持續發展及甚麼行為才屬“舞弊”。

Cheng further pointed out that the approach taken by the trial judge, which included not allowing Mr. Kwok to cross-examine the witness in order to gauge how he understood certain political science and election issues so as to assist the court in properly interpreting the term “corruptly”, indicated that the trial judge was trying the case with a “biased” mindset.
鄭更指原審法官的處理方法，包括不批准郭大律師盤問證人以測試他如何理解某些政治科學及選舉議題的認‍知以協助法庭恰當地詮釋“舞弊地”一詞顯示原審法官是在“偏見”的思維狀態下審理案件。

Cheng further pointed out that the interpretation by the trial judge of the term “corruptly” was in conflict with the Hong Kong Bill of Rights Ordinance (“Bill of Rights”) and the International Covenant on Civil and Political Rights, which conferred on Hong Kong residents the right to participate in elections freely and without restriction.
鄭更指原審法官就“舞弊地”一詞的解釋抵觸了《香港人權法案條例》（《人權法》）和《公民及政治權利國際公約》賦予香港居民自由及無限制地參與選舉的權利。

Cheng submitted that the provision of a monetary subsidy, as an inducement for another person to stand as a candidate at an election, was a monetary transfer necessary for the protection of the right of election and also part of the right to participate in elections freely and without restriction, and therefore should not constitute an offence.
鄭認為給予金錢資助，作為他人參選的誘因是保障選舉權必須的金錢輸送，是自由及無限制地參與選舉權利的一部分，因此不應構成罪行。

Cheng further stressed that the candidate whom the public had in mind needed sufficient money as an inducement to participate in an election so that he/she would have the motivation to step forward to speak for the public and be able to freely express their wishes. Cheng asserted that the Ordinance had an “innate defect”, being not completely in line with the principles stipulated in the Bill of Rights and the Basic Law.
鄭更強調市民心目中的候選人要有足夠金錢作為誘因參與選舉，而候選人才會有動力站出來代表市民發聲，及能自由地表達其意願。鄭力稱《條例》有“先天性缺‍陷”，沒有完全配合《人權法》和《基本法》訂明的原則。

Cheng set out the background to the whole incident in another detailed skeleton submission. He asserted that those he sponsored were candidates within the meaning of the Ordinance, the reason being that they had openly stated that they were minded to stand as candidates at the election, and therefore the subsidies he agreed to give them were “election donations” which were permissible under the Ordinance. Cheng asserted that the respective prosecution witnesses could be regarded as “statutory candidates” prior to the offences in question, and therefore, even if he did subsidize them in standing as candidates at the election, his subsidies would not constitute inducements to their standing as candidates at the election.
在另一份詳盡的陳詞大綱，鄭列出整件事件的背‍景，鄭力稱他表示資助的人是《條例》所指的候選人，原‍因是他們都曾公開表示打算參選，因此他同意向該些人士作出的資助是“選舉捐贈”，是《條例》容許的。鄭力稱各有關的控方證人在案發前已可被視為“法定候選人”，故即使他‍有資助他們出選，他的資助亦不會構成他們參選的誘因。

Citing cases such as Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489 and HKSAR v Lee York Fai, CAAR 3/2011, Cheng stressed that candidates’ public announcements within the meaning of the Ordinance did not have to follow a particular form or style.  He submitted that as long as a person had made preparations for the election by words or by conduct, that person was a candidate within the meaning of the Ordinance, and the subsidies offered to such candidates were election donations and not bribes.  Cheng asserted that those to whom he offered donations were either “paratrooper candidates” or “organization candidates”, and the prosecution witnesses had all deliberately planned to stand as candidates at the election. It followed, it was submitted, that the subsidies he offered were not inducements to their standing as candidates at the election and did not contravene section 7(1)(a) or 7(1)(g) of the Ordinance.
鄭援引Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489及香港特別行政區 訴 李躍輝，CAAR 3/2011等案，強調要構成《條例》所指的候選人作出的公開宣‍布，無需按特定的形式或說法。他認為只要某人在言語上或行為上有作出過選舉準備，便是《條例》所指的候選人，而向該‍些候選人提供的資助則是選舉捐贈而非賄款。鄭力稱他提出捐‍助的人都是“候選傘兵”或“候選組織”，而控方證人都‍是曾處心積慮打算參選的人。因此他提出的資助並非他‍們參選的誘因，亦沒有抵觸《條例》第 7(1)(a)或7(1)(g) 條。

In his submissions to this Court, Cheng stressed that even if his defence and/or testimony were not accepted at trial, the prosecution still bore the burden of proving his guilt beyond reasonable doubt. He pointed out that those whom he requested to stand as candidates at the election had long ago expressed the intention to do so, and hence the sums he offered were not inducements to their standing as candidates at the election and he did not violate section 7(1)(a), (1)(c) or (1)(g) of the Ordinance. Cheng asserted that the exhibits at trial, including reports by certain online media, had pointed out that a lot of localist organizations, such as those involved in the present case, indicated they would send people to stand as candidates at the 2015 Election, and there were reports showing that Wong Chun-yeung and Leung Chung-hang Sixtus would stand as candidates at the election. Cheng further pointed out that there were other reports of the same type showing that Wong Hok-lai, Tsang Ka-lam and Lee Man-ho Leos had also publicly stated that they would stand as candidates at the election. Therefore, it was submitted, the monies offered to them were not inducements to their standing as candidates at the election.
鄭向法庭陳述時強調即使他在原審時的答辯理由及/或證供都不獲接納，控方仍有舉證責任在毫無合理疑點下證明他的罪行。他指他要求參選的對象早已表明有參選意‍圖，因此他提供的金錢並非他們參選的誘因，而他亦沒有干犯《條例》第7(1)(a)、(1)(c)或(1)(g)條。鄭力稱原審時有‍的證物，包括某些網上傳媒的報導，已指出很多本土組織，包‍括涉案的組織都表示會派人參加2015年選舉，而有報導顯示王進洋及梁頌恆會參選。他亦指有其他同類‍的報導顯示黃‍學‍禮、曾家霖和李文浩亦有公開表示會參選，因此向他們提供的金錢並非他們參選的誘因。

With a view to strengthening his case, Cheng applied to the Court to adduce some fresh evidence, including reports by certain online media and the returns of election expenses of Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos. Cheng was of the view that those documents could support his case. He was able to produce the returns of election expenses of the aforesaid three individuals but could no longer produce reports by other online media in order to show that the prosecution witnesses had publicly announced their intention to stand as candidates at the 2015 Election.
為了強化他的立場，鄭向法庭申請提交一些新證‍據，包括某些網上傳媒的報導和王進洋、梁頌恆及李文浩的選舉開支申報書。他認為該些文件能支持他的立場。鄭能出‍示上述三人選舉開支申報書，但卻再不能出示其他網上傳‍媒的報導，以顯示控方證人曾公開宣布有意參加2015年選‍舉。

Cheng expressed doubts about the integrity of certain prosecution witnesses. He pointed out that those candidates were already “statutory candidates” at the time of the offences, and it was only that they did not stand as candidates at the election as expected after the material time, nor did they make returns of the election donations they had received. Cheng asserted that those prosecution witnesses were engaging in sophistry when they denied in their testimonies that they had publicly announced their standing as candidates at the election, the purpose of which was to prevent their election bribery from being revealed. Cheng also stated that the aforesaid returns of election expenses could support his case.
鄭對個別控方證人的誠信表示懷疑。他指案發時，該些候選人已是“法定候選人”，而他們只是在案發後沒有如期參選，亦沒有申報他們曾收受的選舉捐贈。鄭力稱該些控‍方證人作供時否認曾公開宣布參選是狡辯，目的是避免他‍們賄選的行為被揭露。鄭亦指上述選舉開支申報書能支持他的立場。

In respect of Charge 13, Cheng stated that he had no idea which member of APS would stand for the election, and the $36,000 he paid was sponsorship to that organization. Cheng stressed that before the incident in question, Ku had spread the word around that they intended to stand as candidates at the election. Cheng’s position was that Chan was a candidate and Ku was an election expense agent. He himself was merely offering an election donation to a candidate through an agent.
就第十三項控罪，鄭表示他不知悉APS哪一位成‍員會參選，而他支付的36,000‍元是贊助該組織。鄭強調事發前，顧已四出放風，表示他們有參選意圖。鄭的立場是陳是候選人而顧是選舉開支代理人。他則只是透過代理人向候選人提供選舉捐贈。

Cheng further stated that even if he had had bad motives, he had not committed a crime as a matter of law.
鄭更指即使他有不良的動機，但從法律角度而言，他並沒有犯法。

Cheng stated that the prosecution had submitted to the court his statement of defence and claimed that such an act violated the legal professional privilege to which he was entitled and which should attach to communications between a lawyer and his client.
鄭指控方曾將他的自辯供詞呈堂，並聲稱該做法違‍反他享有的律師和當事人通訊應享有的特權。

Mr. Kwok, counsel for Ku, submitted that the trial judge had erred in admitting some hearsay evidence, namely Exhibits P27, P46 and P47.
代表顧的郭憬憲大律師則指原審法官錯誤地採納了一些傳聞證據，即證物 P27、P46和P47為證。

Mr. Kwok submitted that the trial judge should not have ruled, merely because a document more or less the same as Exhibit P27 was stored in Ku’s computer, that Ku had knowledge of the contents of Exhibit P27. Therefore, it was submitted, the trial judge erred in relying on Exhibit P27 to infer that Ku knew that Chan would stand as a candidate at the election and to hold that Ku caused Chan to stand as a candidate at the election and thereafter discussed with Cheng the matters concerning participation in the election, the reason being that the trial judge relied on some hearsay evidence in drawing the aforesaid inference.
郭大律師認為原審法官不應因為顧電腦中儲存了和證物 P27大致相同的文件，便顯示他對證物 P27的內容有認知。因此原審法官依賴證物 P27來推論顧知悉陳會參選並且是他促使陳參選後再和鄭商討參選事宜的決定是錯誤的，原因是他有依賴一些傳聞證據來作出上述推論。

Mr. Kwok pointed out that it was only during cross-examination by the prosecution that Cheng stated it was he who sent Exhibit P46 to Ku, but by that time the defence had already finished cross-examining Cheng and therefore did not have an opportunity to cross-examine Cheng on that issue, and this was procedurally unfair to Ku.  In making his submissions to this Court, Mr. Kwok withdrew the above contention but insisted that Cheng’s version was neither part of nor verified in the prosecution case, and hence the trial judge’s reliance on Cheng’s version was also procedurally unfair to Ku.
郭大律師指出鄭是在控方盤問時才指證物P46是他傳給顧的，但當時辯方已完成盤問鄭，故沒有機會就該議‍題盤問鄭，因此程序上有對顧不公。向法庭陳述時，郭‍大‍律‍師收回上述指稱，但仍堅持鄭的說法並非是控方的案‍情的一部分，亦沒有在控方案情內獲得證實，因此原審法‍官依賴鄭的說法在程序上亦是對顧不公。

Mr. Kwok submitted that the trial judge interpreted the term “corruptly” without the assistance of the expert evidence of a political scientist, and such interpretation would limit the right of those concerned to stand as candidates at elections, such right having been conferred by the Basic Law and the Bill of Rights.
郭大律師指原審法官在詮釋“舞弊地”一詞缺‍乏政治科學家的專家證據的協助，因此他的詮釋方式會限制了有關人士根據《基本法》和《人權法》所賦予的參選權。

Mr. Kwok also submitted that the trial judge’s finding on the meaning of “corruptly” was based on his erroneous view that “it is most obvious in the context of buying clout with money” and “vote snatching per se is not corrupt, but it is a different matter to achieve such a goal by using money. Otherwise, wealthy people could gain unfair advantages whereas the right of those without wealth to be voted for would be unfairly undermined.” Mr. Kwok submitted that the trial judge had overlooked the object of the Ordinance which was to require candidates to properly account for benefits and not to eradicate the acceptance of benefits. Mr. Kwok also submitted that the trial judge’s approach restricted the right of Hong Kong people to stand as candidates at elections, as conferred by the Basic Law and the Bill of Rights.
郭大律師亦指原審法官裁定“舞弊地”的意思是建基在他錯誤地認為“使用金錢去收買影響力的時候至為明顯”及“鎅票本身並非舞弊，但是用金錢達到這個目標便不‍是同一回事，否則，有財力的人便可以取得不公平的優‍勢，無財力的人的被選權會被不公平地削弱”。郭大律師認為原審法官忽略了《條例》的宗旨是要求候選人妥善交代利益，而不是杜絕收取利益。郭大律師亦認為原審法官的處‍理方法限制了《基本法》和《人權法》賦予香港市民的參‍選‍權。

Mr. Kwok contended that the candidate referred to in the Ordinance in respect of election donation could become a candidate only after receiving the donation, and therefore the financial assistance received by the candidate before he became a candidate could be an election donation, and as long as the person receiving the subsidy made a return for his election expenses properly, the relevant subsidy would be a lawful election donation. Mr. Kwok took the stance that both the $150,000 to $200,000 Cheng had promised to pay and the $36,000 he had actually paid could be regarded as election donations, and that as long as Chan made a return upon the conclusion of the election, the monetary transactions in question would be lawful. Mr. Kwok stressed that when Ku was arrested, the time limit for making a return for the election expenses had not yet expired. It was submitted that the trial judge wrongly speculated that Chan would definitely not make a return for the amount he accepted.
郭大律師力稱《條例》中選舉捐贈所指的候選人可‍以是在接受捐贈後才成為候選人。因此在候選人未成為候‍選人前接受的金錢資助，可以是選舉捐贈，而只要接受資‍助的人恰當地就選舉開支作出申報，則有關資助是合法的選‍舉捐贈。郭大律師的立場是鄭答應支付的15至20萬元和他已支付的36,000元都可以視作選舉捐贈，而只要陳在選‍舉完結後作出申報，則涉案的金錢交易是合法的。郭大律師強‍調顧被捕時，申報選舉開支期限尚未屆滿。他認為原審法‍官有錯誤地揣測陳必定不會申報所接受的款項。

Mr. Kwok submitted that, in finding that the $36,000 Cheng had paid was a reward for Chan’s standing as a candidate at the election and not a donation for election expenses, the trial judge was less than clear about the allegation of “inducement” in the charge. Mr. Kwok submitted that the prosecution case did not support the proposition that the $36,000 paid by Cheng was an “inducement” for Chan to stand as a candidate at the election.
郭大律師指原審法官裁定鄭支付36,000‍元是作為陳參選的報酬，而非選舉開支的捐贈，顯示他混淆了控罪所‍指“誘因”的指控。郭大律師指控方的案情不支持鄭支付的36,000元是陳參選的“誘因”的說法。

Mr. Edwin Choy, representing Chan, did not adopt the position or any of the grounds of appeal put forward by Mr. Kwok, but instead raised two other grounds of appeal. He argued that the trial judge had not properly dealt with or had wrongly dealt with the legal definition of the term “corruptly” under the Ordinance.
代表陳的蔡維邦大律師不採納郭大律師的立場及任何一個上訴理由，但提出另外兩項上訴理由。他指原審法‍官沒有適當地或錯誤地處理《條例》中所指的“舞‍弊‍地”一詞的法律定義。

Mr. Choy pointed out that section 7(1)(g) of the Ordinance provided that it was an offence only for a person to corruptly solicit or accept an advantage as an inducement to get, or try to get, another person to stand or not to stand as a candidate at an election, and therefore, “corruptly” must be an element of the charge bearing a substantive meaning, and the prosecution had to prove that the element was established before the defendant could be convicted.
蔡大律師指出《條例》第 7(1)(g) 條列出任何人舞‍弊地索取或接受利益作為另一人或試圖令另一人在選舉中參選或不參選的誘因，才構成罪行，因此“舞弊地”必然是擁有實質意義的控罪元素，而控方亦必須證明該元素成‍立，法庭才能將被告人定罪。

Mr. Choy submitted that the approach to the interpretation of the term “corruptly” in the cases cited by the prosecution at trial, including Copper v Slade (1858) 6 HLC 746, Bewdley Election Petition (1869) 19 LT 676, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999), did not apply in the present case.
蔡大律師認為原審時，控方援引的案例包括Copper v Slade (1858) 6 HLC 746、Bewdley Election Petition (1869) 19 LT 676、R v R E Low [1961] HKLR 13 和HKSAR v Chim Pui Chung (HCMA 955/1999) 等案詮釋“舞弊地”（corruptly）一詞的方式不適用於本案。

Mr. Choy submitted that, in order to establish a corrupt conduct within the meaning of the Ordinance, the prosecution had to prove that there existed, by an objective standard, a corrupt element in the defendant’s conduct and that the defendant had, by a subjective standard, guilty knowledge/corrupt intent. Mr. Choy submitted that “corruptly” should refer to conduct of cheating, deceiving, immorality or dishonesty.
蔡大律師認為要構成《條例》所指的舞弊行為，控‍方須證明被告人的行為在客觀的標準上存在舞弊元素及被告人在主觀的標準上存有犯罪認知/舞弊意圖（corrupt intent）。蔡大律師認為“舞弊地”應是指某些作弊、造假、不道德或不誠實的行為。

In support of his stance, Mr. Choy cited cases in Singaporean law courts such as PP v Khoo Yong Hak [1995] 2 SLR 283, PP v Chan Wing Seng [1997] 2 SLR 426 and PP v Low Tiong Choon [1998] 2 SLR 878.
蔡大律師援引新加坡法院在PP v Khoo Yong Hak [1995] 2 SLR 283 及PP v Chan Wing Seng [1997] 2 SLR 426 及PP v Low Tiong Choon [1998] 2 SLR 878等案支持他的立‍場。

Mr. Choy contended that in order to establish the offence, the prosecution did not only have to prove that the defendant had performed certain corrupt conduct, but also had to prove that in performing such corrupt conduct, the defendant was aware that his own conduct was corrupt conduct by an ordinary and reasonable standard.
蔡大律師力稱要構成罪行，控方不單要證明被告人作出了某些舞弊行為，控方亦要證明在作出該些舞弊行為時，被告人意識到自己的行為從正常和合理的標準而言是舞‍弊行為。

Mr. Choy pointed out that in Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (Common), the court emphasized, in addressing the relevant issues, that the prosecution had to prove beyond reasonable doubt that the defendant was aware that the relevant criminal conduct was wrong:
蔡大律師指出在Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (Common) 案，法庭在處理相關議題時強調控方要毫無合理疑點地證明被告人意識到相關犯罪行‍為是錯誤的：

Mr. Choy submitted that the trial judge erred in agreeing with the prosecution that “corruptly” actually meant that the offender did the offending act “for the purpose of something plainly prohibited by the legislation”, and that such error was caused by the failure of the trial judge to deal with the relevant cases properly.
蔡大律師認為原審法官同意控方所指“舞弊地”的實際意義是犯案人作出涉案的行為時“必須以法例明顯地禁止的東西為犯案目的”的立場是錯誤的，是因為他沒有恰當地處理有關案例所導致的。

Mr. Choy contended that the trial judge erred in finding that it was immaterial whether Chan was minded to stand as a candidate. Mr. Choy submitted that such desire on Chan’s part was material and favourable to him, and therefore the trial judge should not have regarded it as immaterial.
蔡大律師力稱原審法官錯誤地裁定陳是否有參‍選的意願並不重要。蔡大律師指陳的上述意願是重要的，亦是對他有利的，故原審法官不應視之為不重要。

Mr. Choy submitted that the trial judge misunderstood the evidence and erred in rejecting Chan’s explanation, and that, in making the aforesaid erroneous decision, the trial judge failed to properly deal with the evidence favourable to Chan and the evidence adverse to the prosecution. Mr. Choy stressed that Chan was well-off and unlikely to have committed the offence in question.
蔡大律師指原審法官誤解證據及錯誤地拒絕接‍納陳的解釋，而在作出上述錯誤決定時，原審法官沒有恰‍當地處理對陳有利的證據和對控方案情不利的證據。蔡大律師強‍調陳的家境富裕，不應會干犯有關罪行。

Therefore, Mr. Choy submitted that the conviction of Chan was unsafe.
因此，蔡大律師認為針對陳的定罪決定是不穩妥的。

Although Mr. Choy listed a number of decided cases in his written submission to support his position, he only extracted a few paragraphs from the judgments of those cases without analyzing the background of and the issues involved in those cases. Nor did Mr. Choy make any further reply after Mr. Jonathan Man, Senior Assistant Director of Public Prosecutions for the respondent, addressed why those cases were not applicable to the present case.
雖然蔡大律師在其書面陳述列出多宗案例支持他的立場，但他只是節錄該些案例的判案書內少部分的段落，而‍沒有分析該些案例處理的議題及背景。在答辯方萬德豪高‍級助理刑事檢控專員指出該些案例為何對本案不適用時，蔡‍大‍律‍師亦沒‍有再作出回應。

Discussion
討論

One of the duties of a judge is to interpret statutes by reference to a number of factors such as the language of the statutes, the legislative intent and purpose, and precedents of similar cases, etc.  Cheng and Mr. Kwok submitted that the trial judge should have enlisted expert assistance in interpreting the legislation, but this suggestion is wholly unfounded and plainly wrong. In my view, the suggestion made by Cheng and Mr. Kwok is simply inconceivable. Mr. Kwok is under a duty to put forward arguable points in order to assist the court in handling the case, instead of creating obscurity by making absurd propositions not supported by any decided case. Mr. Kwok should not have even put forward the suggestion that the trial judge should have received evidence of an expert witness in order to assist him in properly interpreting the legislation.
法官的職責之一是根據法例的用語、立法原意和目‍的及同類案件的先例等等因素來詮釋法例。鄭和郭大律師指原審法官應取得專家的協助來詮釋法例的說法全無基礎支‍持，亦明顯是錯誤的。本席認為鄭和郭大律師的說法是匪‍夷所思。郭大律師有責任提出可爭拗的論點，以協助法庭處‍理案件，而非提出一些全無案例支持的荒謬說法，混淆視‍聽。郭大律師指原審法官應聽取專家證人的證供，以協助他恰當地詮釋法例的說法根本不應該提出。

Article 26 of the Basic Law and the Bill of Rights confer on Hong Kong permanent residents the right to vote and the right to stand for elections. However, these rights have to be exercised in accordance with law and subject to such restrictions as are prescribed by law.
《基本法》第‍26‍條和《人‍權‍法》賦予香港永久性居民選舉權和被選舉權，但該些權利必須依法行使，亦要受‍到依法規定的限制。

To ensure that elections are conducted fairly, openly and honestly, the Ordinance prohibits certain corrupt and illegal conduct which affects fair, open and honest elections. The Ordinance aims not only to ensure that candidates properly account for the election donations that they receive, but also to eradicate certain corrupt conduct, including offering an advantage to another person as an inducement for that other person to stand, or not to stand, as a candidate at an election. Another object of the Ordinance is to prevent anyone from obtaining personal gains by standing for elections.
為了確保選舉在公平、公開和誠實的情況下進行，《條例》禁止某些影響公平、公開和誠實選舉的舞弊和非法行為。《條例》的宗旨是不單是要求候選人妥善交代收取到的選舉捐贈，亦是要杜絕某些舞弊行為，包括提供利益給另‍一人作為該另一人參選或不參選的誘因。《條例》的另一宗旨是避免任何人以參加選舉而取得私人利益。

To “offer an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election” is corrupt conduct prohibited by law as detailed in the Ordinance (section 7(1)(a)(i)).
“提供利益予另一人作為該另一人在選舉中參選或不參選的誘因”是《條例》詳細列出法律不容許的舞弊行‍為（第7(1)(a)(i)條）。

The aforesaid restriction is prescribed by law and is reasonable and proportional. Exercising the right to vote or the right to stand for election by violating the aforesaid restriction is not exercising the right under the Basic Law and the Bill of Rights in accordance with law. A person with limited resources may have other ways to raise funds to enable him/her to stand for an election. It is not correct to say, as Mr. Kwok did, that the inability of a person minded to stand for an election to do so by reason of limited resources will affect his/her right to stand for elections or voters’ right to vote.
上述限制是依法規定亦是合理和合比例的，任何違‍反上述限制來行使選舉權或參選權則並非依法行使《基本法》和《人權法》下的權利。資源不足的人可以有其他方法籌集資金令他能參選。郭大律師指資源不足的人想參選卻不‍得其門而入會影響他們的選舉權或選民的投票權的說法並不‍正確。

There must be a proper basis and various tests must be satisfied in order to suggest that a particular legal provision is unconstitutional. There is nothing to support the contention of Cheng and Mr. Kwok that the Ordinance and the ruling of the trial judge contravene the Basic Law and the Bill of Rights.
要指某法律條文違憲，必須要有恰當的基礎及通過多項測試才能提出。鄭和郭大律師指《條例》和原審法官的裁決抵觸《基本法》和《人權法》的說法是沒有理據支持的。

On a proper interpretation of the Ordinance, the provisions in the Ordinance that certain conduct related to elections constitutes illegal and corrupt conduct do not in any way contravene the Basic Law and the Bill of Rights.
只要恰當地詮釋《條例》的意義，《條例》列明某‍些和選舉有關的行為所構成違法的舞弊行為，絕對和《基本法》和《人權法》沒有任何抵觸。

Exhibits P27, P46 and P47 are records of communications among members of the APS election campaign group, including Ku, Chan and Cheung. The evidence confirmed that some of the communications originated from Cheng. The contents of the communications also tallied with the prosecution’s allegation, showing that Cheng would provide sizeable subsidies to induce APS to send people to stand as candidates at the 2015 Election. Those messages were obviously compiled and sent by the conspirators involved in the present case.
證物 P27、P46和P47都是APS競選群組的相互通‍訊紀錄，群組的成員包括顧、陳和張，證據亦確認部分通‍訊內容源自鄭。通訊內容亦和控方的指控脗合，顯示鄭會資助巨額金錢誘使APS派人參加2015年選舉。該些訊息內容明‍顯是涉案的串謀者製作及發出的。

According to the co-conspirator rule, acts done or statements made by a co-conspirator for the purposes of the conspiracy are admissible against the other co-conspirators and are not subject to the rule against hearsay, the reason being that, for an offence of conspiracy, a co-conspirator’s acts or statements are binding on the other co-conspirators (see R v Au Shui Yuen Alick [1993] 2 HKC 219). Furthermore, documents shown to be records stored in a particular kind of business are of probative value and are admissible in evidence without violating the rule against hearsay (see HKSAR v Or Suen Hong [2001] 2 HKLRD 669).
一名串謀者為了有關串謀作出的行為及聲明，根據同謀者規則是可以作為支持其他串謀者的罪證，不受“傳聞證據”的規限，原因是在串謀罪行中，一名串謀者作出的行‍為或聲明對其他串謀者有約束力（見R v Au Shui Yuen Alick [1993] 2 HKC 219案）。再者，某些文件顯示它們是在某類業務中所儲存的紀錄具舉證價值，可以呈堂為證，而不會抵觸傳聞證據規則（見HKSAR v Or Suen Hong [2001] 2 HKLRD 669案）。

The fact that a document more or less similar to Exhibit P27 was stored in Ku’s own computer can definitely show that he had knowledge of the contents of Exhibit P27.
顧本人的電腦內儲存了一份和證物 P27大致相同的文件絕對能顯示他對證物 P27的內容知情。

The aforesaid evidence is clearly admissible. By treating Exhibits P27, P46 and P47 as merely real evidence which could only be used to support the testimony that Ku accepted Cheng’s subsidy, the trial judge adopted an approach extremely favourable to Ku. In any event, even in the absence of such evidence, according to the trial judge’s findings on the evidence of the prosecution witnesses, the three defendants clearly had an agreement to accept Cheng’s subsidy so that Ku would get Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. The evidence given by the prosecution witnesses against the three defendants was all-encompassing and overwhelming. Mr. Kwok’s contention that certain hearsay evidence should not have been adduced does not affect the safety of the conviction.
上述證據明顯是可以呈堂為證的證據。原審法官單‍以證物 P27、P46和P47為實物證據，只能用作支持顧接‍受鄭資助的證供已是對顧極為有利的處理方法。無論如何，即‍使沒有該些證據，根據原審法官就各控方證人證言的裁‍決，三‍名被告人明顯有協議接受鄭的資助，以令顧促使陳在鄭指定的選區參選2015年選舉。控方證人針對三名被‍告人的證供是全面及一面倒的。郭大律師指某些傳聞證據不應呈堂的說法不影響定罪的穩妥性。

In his oral submissions, Mr. Kwok withdrew the complaint he made in his written submissions that it was only under cross-examination that Cheng said he sent Exhibit P46 to Ku. Had the defence considered that they could not foresee what Cheng was going to say and hence had no opportunity to put questions to him before he was cross-examined by the prosecution, they could have applied to the trial judge for leave to inquire of Cheng about the new issue after the prosecution finished cross-examining Cheng.
在口頭陳詞時，郭大律師收回在其書面陳述中對鄭是在盤問下才指證物 P46 是他傳送給顧的投訴。如辯方認‍為他們不能預知鄭的說法，故沒有機會在控方盤問他前向他提問，辯方大可以在控方盤問完鄭後向原審法官申請要求獲准就該新出現的議題向鄭查詢。

Not having made such an application at trial, it is not open to the defence on appeal to complain, or indeed to put forward as a ground of appeal, that they did not have an opportunity to make inquiries of Cheng and hence Ku suffered from procedural unfairness.
辯方不能在原審時沒有作出上述申請而在上訴階‍段指因為沒有機會向鄭查詢，故造成程序上對顧不公平，並以此為上訴理由。

Mr. Kwok argued that Cheng’s evidence was neither part of the prosecution case nor verified when the prosecution proved their case, and therefore the trial judge could not rely on Cheng’s testimony against Ku. If, at the close of the prosecution case, the evidence adduced by the prosecution fell short of establishing a prima facie case on the charges, it was of course open to the defence to make an application for no case to answer. However, where the prosecution had adduced sufficient prima facie evidence for the charges, the evidence given by one defendant who defended in person could, if true, strengthen the prosecution evidence against other defendants who stood the same trial.
郭大律師指鄭的證言並非是控方案情的一部分，亦‍沒有在控方證案時證實，因此原審法官不能依賴鄭針對顧的證言。如控方結案時，控方提出的證據不足以構成支持控‍罪的表面證供，則辯方當然可以提出毋須答辯的申請。但‍如控方已提出足夠的表面證據支持控罪，則個別被告人在自辯時提出的證據如屬實是可以強化控方指控其他同時受‍審的被告人的證據。

The grounds of appeal raised by Mr. Kwok regarding the above issue do not have any backing and are plainly wrong. Such grounds should not have been raised at all. What Mr. Kwok did is a sheer waste of the court’s time.
就上述議題，郭大律師提出的上訴理據是沒有基礎支持，亦明顯是錯誤的。該些理據根本不應提出，郭大律師的做法實屬浪費法庭時間。

The prosecution case was that the three defendants engaged or conspired to engage in “corrupt conduct” prohibited under the Ordinance, namely offered an advantage to another person as an inducement for the other person to stand as a candidate at the election, or conspired to offer an advantage to another person as an inducement for the other person to stand as a candidate at the election.
控方指三名被告人作出或串謀作出上述《條例》禁‍止的“舞弊行為”，即提供利益予另一人作為該另一人在選‍舉中參選的誘因或串謀提供利益予另一人作為該另一人在選舉中參選的誘因。

Mr. Kwok argued that the election donation referred to in the Ordinance could be made before there was a candidate, and as long as the person who received the election subsidy made a proper election expense return after the election, the offering of an advantage as an inducement for another person to stand as a candidate at an election could be regarded as an election donation which was lawful. I disagree. An election  donation is a donation made to a candidate at an election. The existence of a candidate is a prerequisite for an election donation.
郭大律師指《條例》中所指的選舉捐贈可以在沒有候選人出現前作出，而只要收取選舉資助的人在選舉後作出恰當的選舉開支申報，提供利益誘使他人參選可被視為選舉捐贈亦是合法的。本席不同意郭大律師的立場。選舉捐贈是就選舉的候選人作出的捐贈，前題是必須先有候選人，才能有選舉捐贈。

In any event, according to the trial judge’s findings of fact, the $150,000 to $200,000 Cheng had agreed to pay and the $36,000 already paid to Ku were by no means election donations but were monetary rewards given to Ku as inducements for Chan to stand as a candidate at the 2015 Election. The trial judge’s finding is backed by sufficient evidence and is correct.
無論如何，根據原審法官的事實裁決，鄭同意支付的15至20萬元及已支付給顧的36,000元絕非選舉捐‍贈，而是給予顧的金錢報酬，以作為陳參加2015年選舉的誘‍因。原審法官的裁定有充分證據支持，亦是正確的。

The Ordinance is targeted at certain acts which are done “corruptly”. The trial judge considered that merely doing an act prohibited by the legislation did not necessarily constitute corrupt conduct. However, if the offender did the relevant acts with the object of doing acts prohibited by the legislation, then those acts were done “corruptly” and were unlawful.
《條例》所針對的是“舞弊地”作出某些行為。原‍審法官認為單單作出法例禁止的行為不一定是舞弊行‍為，但如犯案人作出有關行為時，目的是違反法例禁止的行為，該些行為就是“舞弊地”作出，且屬違法。

The interpretation given by the trial judge is tantamount to saying that “if an offender intentionally did the acts prohibited by the Ordinance, then he did such acts ‘corruptly’ which was unlawful.”
原審法官的演繹方法等同“如犯案人故意作出《條‍例》禁止的行為，他就是“舞弊地”作出該些行為，亦屬違法行為”。

The trial judge and counsel for the defendants cited various decided cases, both local and overseas, in support of their respective interpretations of the word “corruptly”. In my view, in interpreting the same word which appears in different statutes, apart from referring to the literal meaning of the word itself, it is also necessary to consider the objectives which the individual statute is seeking to achieve and the possible effect(s) of the interpretation on the word.
原審法官和被告人的代表大律師都有援引多宗案‍例，包括本地和外國的案例，以支持他們就“舞弊地”一‍詞的詮釋。本席認為在不同的條例中，同一用詞的詮釋方‍法除了按用詞本身的字面意義外，亦必須考慮個別條例希‍望達到的目的及詮釋用詞能達到的後果。

I also consider that the various cases cited by Mr. Choy, especially the judgments of the law courts in Singapore, were decided under the special circumstances of the respective ordinances, but are not applicable to the present case.
本席亦認為蔡大律師援引的多宗案例，特別是新‍加‍坡法院的判決都是根據個別條例的特殊情況作出，但在‍本案並不適用。

Section 3 of the Ordinance states that the objects of the Ordinance are to make sure that elections are conducted fairly, openly and honestly and are free from corrupt or illegal conduct, and “to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure”.
《條例》第三條列明《條例》的目的是令選舉得以公‍平、公開和誠實地進行而無舞弊或非法行為及“確保候選人妥善交待在選舉中款項的支出及所索取和收取的選舉捐‍贈，並確保候選人的開支不會超過訂明的開支限額”。

Section 7 of the Ordinance prohibits certain types of conduct which are characterized as “corrupt conduct”, and it is an offence to engage in such “corrupt conduct” (section 6(1)). Such unlawful conduct refers, in general, to offering or accepting an “advantage” as an “inducement” to stand, or not to stand, as a candidate at the election, or to withdraw the candidature, or not to endeavour to promote the election of the candidate.
《條例》第‍7‍條禁止某類行為並將該些行為定性為“舞弊行為”，而作出該些“舞弊行為”即屬犯法[第‍6(1)‍條]。該些犯法行為泛指提供或接受“利益”為“誘‍因”參選、不參選、退選或沒有盡力令候選人當選。

It is an inherent offence, as prescribed by the Ordinance, for a person to offer or accept an “advantage” as an “inducement” to get someone to stand, or not to stand, as a candidate at an election, or to withdraw his/her candidature, or not to endeavour to promote the election of the candidate. Section 2(1) of the Ordinance defines “advantage” to include any valuable consideration, gift, loan, service, etc., but election donation is not included. Section 19 makes specific provisions on the disposal of “election donations” by candidates.
任何人提供或接受“利益”為“誘因”令人/去參‍選、不參選、退選或沒有盡力令候選人當選都是《條例》訂明的固有犯罪行為。《條例》第 2(1) 條將“利益”定性為任何有值代價、饋贈、借貸、服務等，但選舉捐贈除外。而‍第‍19‍條對候選人處理“選舉捐贈”有明確的要求。

The legislative intent of the Ordinance is clear: a candidate is entitled to accept election donations, but such donations can only be used towards election expenses as prescribed in the Ordinance. Where election donations exceed election expenses, the former must be disposed of in accordance with the mechanism set out in section 19 of the Ordinance. In short, a candidate must not have any gains by reason of standing for an election. Section 7(1) of the Ordinance also aims to prohibit candidates from having any personal gains as a result of standing for an election.
《條例》的立法原意是明確的，一名候選人有權接‍受選舉捐贈，但該些選舉捐贈只能用作《條例》列明的選‍舉開支。如選舉捐贈的數額超過選舉開支，則必須根據《條例》第19條列明的方法去處置。簡言之，候選人不得因為參‍加選舉而得益。《條例》第 7(1) 條目的亦是禁止候選人因為參選而取得個人得益。

The Ordinance is expressed to prohibit the act of “offer[ing] an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election”, such conduct being characterized as “corrupt conduct”.
《條例》表明要制止“提供利益給予另一人作為該另一人在選舉中參選或不參選的誘因”，並將該行為定性為“舞弊行為”。

If a person engaged otherwise than intentionally in the conduct sought to be prohibited by the Ordinance, he/she may of course not have engaged in such conduct “corruptly” within the meaning of the Ordinance.
當然，如某人是在非故意的情況下作出《條例》要制止的行為，他可能未符合法例所指的“舞弊地”作出有關行‍為。

However, where a person intentionally engaged in the conduct prohibited and characterized as “corrupt conduct” by the Ordinance, and such conduct was engaged in for the purpose of obtaining personal gains by standing as a candidate at an election, then such conduct must have been engaged in corruptly.
但如某人故意作出《條例》禁止的行為及定性為“舞弊行為”，而作出該些行為是為了以參選而取得個人得‍益，則該些行為必然是舞弊地作出。

If the court does not adopt the aforesaid interpretation, it will be impossible to enforce the Ordinance effectively, and, worse still, corruption will arise and be encouraged in elections.
如法庭不採納上述詮釋方法，則《條例》不可能有‍效‍地執行，更會導致及鼓勵貪污情況在選舉時出現。

The trial judge held that a defendant should be acquitted if he might not have intentionally engaged in the conduct prohibited by the Ordinance. The trial judge held that to constitute an offence, a defendant had to have the “corrupt intent”, i.e. he/she committed the offence for the purpose of achieving something which was clearly prohibited by the legislation. The interpretation by the trial judge means in effect that the conduct prohibited by the Ordinance has to be engaged in intentionally in order to constitute an offence.
原審法官裁定如被告人可能不是故意作出《條例》禁止的行為，法庭應判他無罪。原審法官裁定要構成罪行，被告人須具“舞弊意圖”，即他的犯案目的是為了達到法例明顯禁止的東西。原審法官詮釋的方法等同要構成罪行，被‍告人是故‍意作出《條例》禁止的行為。

That the Ordinance characterizes the conduct it prohibits as “corrupt conduct” must also be because such “corrupt conduct” goes against the objects of the Ordinance and is in conflict with the fair, open and honest conduct of elections.
《條例》將其禁止的行為定性為“舞弊行為”，原‍因亦必然是該些“舞弊行為”違反了條例的目的和公‍平、公開和誠實進行的選舉有抵觸。

For any person who intentionally engages in the corrupt conduct prohibited by the Ordinance, he/she must be doing so with the purpose/intent of hindering a fair, open and honest election. The “dual intent” referred to by the trial judge originates from the defendants’ engaging intentionally in the corrupt conduct prohibited by the Ordinance. The use of such terms as “corrupt intent” or “dual intent” does not add any extra ingredient to the relevant charges.
任何人故意作出《條例》禁止的舞弊行為，其目的/意圖必然是會妨礙一個公平、公開和誠實進行的選舉。原‍審法官所指的“雙重意圖”都是源自被告人故意作出《條例》禁止的舞弊行為，“舞弊意圖”或“雙重意圖”等用詞並沒‍有對有關控罪加添任何額外要素。

The so-called objective “corrupt element” is the very “corrupt conduct” prohibited by the Ordinance, while the subjective guilty knowledge or corrupt intent is to intentionally engage in “corrupt conduct”. Any person who intentionally engages in “corrupt conduct” must have knowledge that his/her conduct is wrong.
所謂客觀的“舞弊元素”就是條例禁止的“舞弊行為”，而主觀的犯罪認知或舞弊意圖就是故意作出“舞弊行為”。任何人故意作出“舞弊行為”亦必然是知悉其作為是錯誤的。

In interpreting the word “corruptly” as used in the Ordinance, the trial judge relied on cases such as Copper v Slade (1858) 6 HLC 746, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999). In my judgment, this approach is correct. In fact, the trial judge’s approach to interpretation was more than favourable to the three defendants.
本席認為原審法官詮釋的《條例》所用的“舞‍弊‍地”一詞時，依賴Copper v Slade (1858) 6 HLC 746、R v R E Low [1961] HKLR 13 和HKSAR v Chim Pui Chung (HCMA 955/1999) 等案的處理方法是正確的。事實上，原‍審法官的詮釋方法已是對三名被告人過份有利。

In my judgment, where a person intentionally engages in conduct prohibited under the “Ordinance”, i.e. conduct characterized by the Ordinance as “corrupt”, and one of the purposes of doing so is for personal gain of a particular individual or organization, then that person is “corruptly” engaging in such conduct, which constitutes an offence prohibited under the Ordinance.
本席認定任何人故意作出《條例》所禁止的行為，即《條例》定性為“舞弊”的行為，目的之一是為了某人或某團體的個人得益，他就是“舞弊地”作出該些行為，構成了違反《條例》禁止的罪行。

The charges involved in the present case are corruptly offering money to other persons to induce them to stand as candidates at the election. Prior to trial, no one claimed that the sums Cheng agreed to pay were election donations. In his testimony, Cheng expressly indicated that he was not subsidizing others to stand for the election but was aiming to approach those of the localist organizations and expose their conspiracies with pan-democratic organizations. At trial, Ku also stressed that the $36,000 he received was consideration for APS assisting Cheng in standing for the election and had nothing to do with Chan’s standing for the election. I find it difficult to understand how Cheng and Ku can, on appeal, try to clear themselves of the convictions by claiming that the sums Cheng agreed to offer were “election donations”.
本案涉及的控罪是舞弊地向他人提供金錢，誘使該‍人參選。原審前，沒有人指鄭同意支付的款項是選舉捐‍贈。鄭在作供時明確表示他並非資助他人參選而是為了接‍觸本土組織人士揭發他們和泛民組織的陰謀。原審時，顧亦強調他收取的36,000元是APS協助鄭參選的代價和陳的參‍選無關。本席實難理解鄭和顧如何能在上訴階段以鄭同意提供的金錢是“選舉捐贈”來洗脫罪名。

According to the Ordinance, an election donation is the money, goods and paid service provided to a candidate, and a candidate:
根據《條例》，選舉捐贈是向候選人提供的金錢、貨品及有償服務，而候選人則是：

“(a)means a person who stands nominated as a candidate at an election; and
“(a)指在某項選舉中接受提名為候選人的人；及

(b)also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate …”
(b)亦指在某項選舉的提名期結束前的任何時‍間曾公開宣布有意……參選的人。”

On the prosecution evidence, when Cheng proposed to subsidize the localists and organizations involved in the present case, they had not stood nominated as candidates and had never publicly declared an intention to stand as candidates. I have to stress that a candidate is an individual but not an organization. The fact that a particular organization claimed it would send someone to stand for the election is neither here nor there. It is not open to Cheng to claim that the subsidy he proposed was election donation offered to a particular candidate on the ground that a particular organization claimed that it would send someone to stand for the election. Neither the relevant evidence Cheng pointed out nor the new evidence he wishes to put forward is sufficient to prove that any of the prosecution witnesses he was willing to subsidize had stood nominated as candidates or had publicly declared an intention to stand as candidates before the close of nominations. There is no basis to support Cheng’s claim that the subsidies offered by him were election donations. Even though some online media reported that Wong Chun-yeung had indicated he was actively considering standing for the election and such reports constituted a public declaration of an intention to stand for the election, he had not clearly stated that he would stand as a candidate in a particular constituency. Cheng’s act of inducing Wong Chun-yeung to stand as a candidate in the constituency designated by him was sufficient to constitute corrupt conduct within the meaning of the Ordinance.
根據控方的證據，鄭提出資助涉案的本土人士及組‍織時，該些人士根本沒有接受提名為候選人，亦從來沒有公開宣布有意參選。本席要強調候選人是個人，而非組織。個別組織表示會派人參選和事件無關。鄭無權以某組織表示會派‍人參選而聲稱他提出的資助是向某候選人提供的選舉捐‍贈。鄭指出的有關證據及希望提出的新證據都不足以證明他願意資助的任何一位控方證人有接受提名為候選人，亦沒‍有在提名期結束前曾公開宣布有意參選。鄭指他提出的資‍助是選舉捐贈是沒有基礎支持的。即使根據某些網媒的報‍導，王進洋曾表示積極考慮參選，而該報導構成公開宣布有意參選，但他並沒有表明在某選區參選。鄭利誘王進洋在他指定的選區參選亦足以構成《條例》所指的舞弊行為。

Furthermore, as the trial judge correctly pointed out, the amount of subsidy Cheng put forward far exceeded the maximum amount of election expenses for the 2015 Election, and Cheng had even made it clear that the subsidies given by him would be released in cash and that the recipients could spend the money freely. When Ku received the $36,000, neither he nor Chan issued any receipt as required by the statute － further proof that the subsidy from Cheng could not possibly be an election donation. The proposal Cheng put forward was to cause those who accepted his instructions and stand as candidates in designated constituencies to obtain personal gains, the purpose of which was to induce them to stand as candidates in the constituencies he designated in accordance with his instructions, so as to achieve his improper objective.
再者，誠如原審法官正確指出，鄭提出的資助金額遠超過2015年選舉的開支上限，而鄭更表明他作出的資助會以現金發放而收款者可以自行運用。顧收取36,000‍元時，他和陳都沒有按法例要求發出收條，亦證明鄭的資助根本不可能是選舉捐贈。鄭提出的建議是令接受他指示去某指定選‍區參選的人能取得個人得益，目的是誘使他們按他的指示在他指定的選‍區參選，以達到他不當的目的。

The trial judge’s finding that the funds provided by Cheng were by no means election donations but were rewards for inducing others to stand for the election is, in my judgment, absolutely correct.
原審法官認定鄭的出資絕非選舉捐贈而是誘使他‍人參選的報酬的裁決絕對正確。

Cheng fails to show that the new evidence he seeks to adduce is relevant to the present case, still less material to the outcome of the present case. Cheng is also unable to explain why such evidence had not been adduced at trial. Therefore, I have no basis to allow his application and admit the new evidence he seeks to adduce, and his summons for leave to adduce new evidence is dismissed accordingly. I am also of the view that the prosecution’s inadvertent disclosure at trial of certain instructions of Cheng which came from counsel for Cheng has no bearing at all on the safety of the conviction.
鄭未能證明他要求提出的新證據和本案有關，更遑‍論會對本案的裁決有舉足輕重的影響。鄭亦不能解釋為何在原審時沒有提出該些證據。因此本席沒有基礎接納他的申‍請及採納他提出的新證據，鄭要求採納新證據的傳訊通知被駁回。本席亦認為在審訊過程中，控方不經意地透露了一‍些源自鄭的大律師關於鄭的指示和有關定罪是否穩妥完‍全無關。

Mr. Kwok submitted that the trial judge was confused in respect of the allegations of inducements in the charges. This submission is, in my judgment, wholly unfounded. I find that the trial judge was correct in holding that the money Cheng had agreed to pay and/or had paid was by no means an election donation but was a “bribe” to induce others to stand as candidates at the election. It was after Ku and Chan knew that Cheng would subsidize $150,000 to $200,000 that Chan indicated he would stand as a candidate in a designated constituency. Cheng’s promise of subsidy and the $36,000 he subsequently paid were precisely what induced Chan to stand as a candidate at the election.
郭大律師指原審法官混淆了控罪中誘因的指控。本‍席認為郭大律師的說法全無基礎支持。本席認定原審法官有正確地裁定鄭同意及/或已支出的金錢絕非選舉捐贈而是誘使他人參選的“賄款”。顧和陳是在知悉鄭會資助15至20‍萬元後，陳才表示會在某指定選區參選。鄭答應會資助及後來支付的36,000‍元正正就是陳參選的誘因。

On the testimonies of the prosecution witnesses and the trial judge’s findings of fact, the purpose of Cheng’s funding was to induce others to stand as candidates at the election so as to obtain personal gains for themselves, and not to subsidize, by way of election donations, those candidates who had already decided to stand as candidates at the election. The trial judge held that the payment of $36,000 by Cheng to Ku was made for the purpose of inducing Chan to stand as a candidate at the election, not of funding Chan’s election expenses. There was sufficient evidence in support of the trial judge’s ruling. Contrary to what Mr. Kwok said, the trial judge had not been confused about the allegations of inducements as set out in the charges.
根據控方證人的證供及原審法官作出的事實裁‍決，鄭出資目的是誘使他人參加選舉令其取得個人得益，而非資助某些已決定參選的候選人的選舉捐贈。原審法官裁‍定鄭支付給顧的36,000元目的是誘使陳參選，而非是資‍助陳的選舉開支。有足夠證據支持原審法官的裁決，原審法‍官並沒有如郭大律師所指，混淆了控罪列出的誘因指控。

Mr. Choy contended that Chan had all along intended to stand as a candidate at the election, and that his decision to stand for the election had nothing to do with the subsidy Cheng agreed to give him.
蔡大律師力稱陳一直都有意參加選舉，而他決定參‍選和鄭同意給予他的資助無關。

One of the acts of corrupt conduct prohibited under the Ordinance is offering an advantage to another person as an inducement for that other person to stand as a candidate at an election, and that inducement does not have to be the sole inducement for that other person to stand as a candidate at the election. And Chan’s wealthiness also had nothing to do with the incident. The trial judge said the fact that Chan originally intended to stand as a candidate at the election was insignificant, but this does not mean he did not consider that factor. The trial judge was merely pointing out that, on the basis of his findings of fact, the fact that Chan originally intended to stand as a candidate at the election had no bearing on his culpability in the incident.
《條例》禁止的舞弊行為之一是提供利益予另一人作為該另一人參選的誘因，該誘因毋須是該另一人參選的唯‍一誘因。陳家境富裕亦和事件無關。原審法官指陳本來也‍想參選並不重要不表示原審法官沒有考慮該因素。原審法‍官只是指出根據他就事實作出的裁決，陳本來也想參選一‍事不影響他在事件中的罪責。

According to the trial judge’s findings of fact, Cheng directly or indirectly approached individuals including Wong Hok-lai, Tsang Ka-lam, Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos, and indicated his willingness to subsidize them to stand as candidates or to procure others to stand as candidates at the 2015 Election, with a view to inducing them to stand as candidates or procure others to stand as candidates in the constituencies designated by him. Cheng also conspired with Ku, Chan and Cheung to provide money as an inducement for Ku to get Chan to stand as a candidate in the constituency designated by him, and one of the inducements for Chan to decide to stand as a candidate in a designated constituency was the $200,000 Cheng agreed to pay. I concur with the trial judge’s aforesaid findings of fact which were supported by sufficient evidence.  One of the conditions Cheng put forward was to cause the person who stood for the election in accordance with his instruction to obtain personal gains. The above conduct is plainly “corrupt conduct” which the Ordinance is meant to prohibit.
根據原審法官的事實裁決，鄭直接或間接接觸黃‍學‍禮、曾家霖、王進洋、梁頌恆和李文浩等人表示願意資‍助他們個人或促使他人參加2015年選舉，目的是誘使他們個‍人或促使另一人在他指定的選區參選。鄭亦串謀顧、陳和張，以提供金錢誘使顧令陳在他指定的選區參選，而陳決定在某指定選區出選的誘因之一是鄭同意支付的20萬元。原‍審法官的上述事實裁決有足夠的證據支持，本席認同。鄭提出的條件之一是令按他指示參選的人取得個人得益。上述行為明顯是《條例》要禁止的“舞弊行為”。

Having carefully considered the aforesaid grounds of appeal raised by each of the defendants, I am of the view that none of those grounds is made out.
本席已有小心考慮各被告人提出的上述理據，本席認為該些上訴理據無一能成立。

I do not agree that the convictions of Cheng on Charges 1, 2, 4, 6, 9, 11 and 13 and the convictions of Ku and Chan on Charge 13 are unsafe in any respect. I dismiss their respective applications for leave to appeal and the convictions are upheld.
對鄭被裁定第‍一、二、四、六、九、十一及十三‍項控罪罪名成立及顧和陳被裁定第十三項控罪罪名成立，本席不同意有任何不穩妥之處。本席駁回他們分別提出的上訴許‍可申請，維持原判的有罪裁決。

Sentence
判刑

The trial judge cited the cases of Secretary for Justice v Lee York Fai and others, CAAR 3/2011 and Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362, and reiterated that bribery at elections was a very serious offence and the courts had to take a serious view of illegal conduct at elections such as corrupt practices in order to maintain the credibility of elections.
原審法官援引律政司司長 訴 李躍輝及其他人 CAAR 3/2011和律師司司長 訴 簡炳墀 [2013] 5 HKLRD 362案，並重申賄選是十分嚴重的罪行，而法庭要嚴厲對待選舉舞弊等非法行為以維護選舉公信力。

The trial judge was of the view that the present case was an extremely serious instance of bribery at an election, and that the defendants had blatantly disregarded the spirit of the electoral system.
原審法官認為本案是極為嚴重的賄選案，而被告人公然漠視選舉制度的精神。

The trial judge considered that Cheng was more culpable than the defendants in Lee York Fai because he did not simply wish to influence a single constituency but intended to interfere with 10-odd constituencies, and the money he could use as bribes was sizeable. However, in respect of Charge 13, the trial judge did not consider the roles and culpabilities of Cheng, Ku and Chan separately.
原審法官認為鄭的罪責較李躍輝案被告的罪‍責更‍重，原因是他並非是單單想影響一‍個選區，而是打算干預10‍多個選區，而他可動用的賄款數額亦甚大。但就第‍13‍項控罪，原審法官沒有將鄭和顧及陳扮演的角色和罪責分開處‍理。

Regarding Charges 1, 2, 4, 6, 9 and 11, as the bribery was unsuccessful, the trial judge adopted 18 months’ imprisonment as the starting point. For Charge 13, as the three defendants had formed an agreement and Cheng had even paid $36,000 as the first instalment, the trial judge adopted 2 years and 6 months as the starting point.
就第‍一、二、四、六、九及十一‍項控罪，由於行賄未遂，原審法官以18‍個月為量刑基準。就第‍十三‍項控罪，因為三‍名被告人已達成協議，而鄭更已支付了36,000‍元首‍期，原審法官以2‍年6‍個月為量刑基準。

The trial judge was of the view that the total term of imprisonment for Cheng should be 4 years, and so he ordered the 18 months for Charges 1, 2, 4, 6, 9 and 11 to run concurrently, but consecutively to the 2 years and 6 months for Charge 13, thereby arriving at a total sentence of 4 years.
原審法官認為鄭的總刑期應為4‍年，故判他第‍一、二、四、六、九及十一‍項控罪的18‍個月刑期同期執行，但‍要和第‍13‍項控罪的2‍年6‍個月分期執行，而得出4‍年的總‍刑‍期。

As for Ku, the trial judge considered that there were no mitigating factors, and therefore sentenced Ku to 2 years and 6 months’ imprisonment for Charge 13.
原審法官認為顧沒有任何減刑理由，故就第‍十三‍項控罪判處他入獄2‍年6‍個月。

As for Chan, given his good character, the trial judge exercised his discretion and reduced the sentence by 2 months, and sentenced Chan to 2 years and 4 months’ imprisonment.
原審法官因為陳品格良好而酌情減刑兩個月，而判‍處他入獄2‍年4‍個月。

Grounds of appeal
上訴理由

In his written submissions, Mr. Kwok stated that in passing sentence the trial judge focused on the gravity of Cheng’s criminal conduct but failed to separately consider the role played by Ku. Mr. Kwok submitted that, even for conspiracy cases, the personal circumstances of various conspirators and their degree of participation were factors to be considered when passing sentence.
在其書面陳述，郭大律師指原審法官在判刑時著重鄭的犯罪行為的嚴重性，但沒有分開考慮顧扮演的角色。他認為即使在串謀案件的判刑時，不同串謀者的個人情況及參‍與程度都是判刑時要考慮的因素。

Mr. Choy put forward the same ground, placing emphasis on the fact that Chan was only involved in Charge 13 and that charge only concerned one of the seats in one of the District Council constituencies. Mr. Choy also pointed out that the case involved only $150,000 to $200,000, and that Chan only agreed to obtain the inducement and stand for the election, with no evidence that he had actually received any advantage.
蔡大律師提出相同的理由，他強調陳只涉及第‍13‍項控罪而控罪只是和一個區議會選區的其中一個席‍位。蔡大律師亦指出案件只涉及15‍至20‍萬元，而陳亦只‍是同意取得誘‍因而參選，但沒有證據顯示他有收取過任何利‍益。

Both Mr Kwok and Mr Choy submitted that Ku and Chan are far less culpable than the defendants in Lee York Fai, and hence the starting point of 2 years and 6 months is manifestly excessive.
郭蔡兩位大律師都認為顧、陳的罪責遠較李躍輝案被告人的罪責為低，因此2‍年6‍個月的量刑基準屬明顯過高。

Discussion
討論

Cheng was convicted on seven charges including Charge 13. His overall culpability is of course greater than that of Ku and Chan. However, in respect of Charge 13 alone, Cheng was offering an advantage and Ku and Chan were receiving the advantage in order to influence the election. I fail to see any difference in the culpabilities of the three of them as co-conspirators.
鄭共被裁定7項控罪包括第13項控罪罪名成立。他的整體罪責當然較顧和陳的罪責為高，但單單考慮第‍13‍項控罪，鄭是提供利益而顧和陳是接受利益以影響選‍舉。作為共同串謀者，本席看不到他們三人的罪責有甚麼分別。

The trial judge pointed out that Cheng was minded to influence not only one constituency but 10-odd constituencies, and the bribe money he could use was as much as $150,000 to $200,000 per candidate. What the trial judge said was only directed at the overall culpability of Cheng and had nothing to do with Ku and Chan.
原審法官指鄭並不是單單想影響一個選區，而是10‍多個選區，他可動用的賄款更是每名參選人可得15‍至20‍萬元。原審法官的上述說法只是針對鄭的整體罪責，和顧和陳無關。

Regarding Charge 13, the trial judge pointed out that the present case involved extremely serious election corruption and that the three defendants blatantly disregarded the spirit of the electoral system. The trial judge had not imposed on Ku and Chan the other charges against Cheng and more serious culpability in relation thereto. It is not correct for Mr. Kwok to say that the trial judge had lumped together the culpabilities of Ku and Chan and of Cheng.
就第13項控罪，原審法官指出案件是極為嚴重的賄選案，三名被告人公然漠視選舉制度的精神。原審法官並沒‍有將鄭涉及的其他控罪及其較嚴重的罪責施加在顧和陳的身上。郭大律師強將原審法官分別就鄭和顧及陳的罪責混‍為一談並不正確。

I reiterate the following principles:
本席重申下列原則：

(1)A clean election is essential for ensuring fair and just elections, is an important foundation for experiencing, practising and developing democracy, and is a prerequisite for maintaining the credibility of elections;
(一)廉正的選舉是確保選舉公平公正的要素，亦是體驗、實踐和發展民主的重要基石，更是維護選舉公信力的必須條件；

(2)The courts must take a serious view of all corrupt and illegal conduct in elections; and
(二)法庭須嚴厲對待任何選舉舞弊及非法行‍為；及

(3)Any person who takes part in election corruption cannot expect a lenient sentence from the court, regardless of that person’s background and social status. The courts must deter the relevant conduct in order to ensure that elections are fair and just and that the credibility of elections is not thrown into doubt.
(三)任何參與賄選行為的人士，不論其背景及社會地位，都不會獲得法庭輕判。法庭必須阻嚇有‍關行為，確保選舉公平、公正及其公信力不會遭懷疑。

However, the trial judge’s view that the gravity of Charge 13 was comparable with the gravity of Lee York Fai is, in my view, open to question.
但對原審法官認為第13項控罪的嚴重性能和李躍輝案的嚴‍重性相比，本席認為有值得商榷之處。

In Lee York Fai, the defendants organized activities such as dinner banquets and day tours, with a view to inducing electors to vote for a particular candidate. The dinner banquets involved almost 600 tables and 6,000 to 7,000 participants; the number of people joining the day tours also approached 3,000. The two activities entailed expenses totalling more than $2,000,000, and the number of electors the defendants sought to induce exceeded half of the number of registered electors.
李躍輝案的被告人舉辦晚宴、一日遊等活動，目的是誘使選民投票支持某名候選人，晚宴涉及近600席，人數是6000至7000人；參加一日遊的人數亦近3000人。兩項活‍動的總支出超過200萬元，被告人誘使的選民超過登記選‍民人數的一半。

Besides, the defendants were found to have engaged in various corrupt and illegal conduct contrary to the election [rules].
被告人更是被裁定多項違反選舉的舞弊及非法行‍為。

Furthermore, Lee York Fai is regarded as the largest ever (in terms of scale) and the most serious of cases of its type.
李躍輝案更被視為有史以來在同類案件中規模最‍大的一宗，亦是同類案件最嚴重的一類。

The main defendants in that case were each sentenced to a total of 33 months’ imprisonment. When passing the above sentence, the Court of Appeal took into account that the defendants had admitted most of the prosecution case at trial and that the sentence was passed upon application for review.
該案的主要被告人被判入獄共33個月。在作出上‍述判刑時，上訴法庭已考慮到被告人在原審時承認了大‍部‍分控方案情，和刑期是在覆核申請人時作出的。

Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362 is another case involving election corruption. There the defendant offered $130,000 in cash to one of 46 electors, inducing that elector to vote for him. The Court of Appeal took the view that the appropriate starting point was 18 months’ imprisonment. However, as it was an application for review of sentence, and taking into account other mitigating factors, the Court of Appeal imposed a sentence of 12 months’ imprisonment.
Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362案亦是一宗涉及賄選的案件。該案的被告人向46名選民中其中一名提供13萬元的現金，誘使該名選民投他一票。上訴法庭認為適當的量刑基準是18個月監禁，但因該案是覆核刑期申請及其他減刑理由而將刑期定為12‍個月。

In my view, regarding Charge 13, the three defendants were less culpable than the defendants in Lee York Fai. In my judgment, 2 years’ imprisonment adequately reflects the gravity of Charge 13.
本席認為就第13項控罪，三名被告人的罪責較李‍躍‍輝案被告人的罪責為輕。本席認為2年監禁已足以反映第‍13‍項控罪的嚴重性。

Although Cheng had committed seven offences in total, all of them were basically a series of offences of the same type. In my view,  the total term of imprisonment of 3 years and 3 months for all the charges against him should be adequate.
雖然鄭共干犯了7項控罪，但全部控罪基本上是一‍系列的同類罪行。本席認為針對他全部控罪的總刑期應為3‍年3個月已足夠。

Therefore, I grant leave to the three defendants to appeal against sentence and treat their applications as the appeal proper.
因此，本席批准三名被告人就判刑上訴，並視其申‍請為正式上訴。

I allow their appeal and substitute the sentences as follows:
本席裁定他們上訴得直，並改判如下：

For Charge 13, Cheng’s sentence is substituted by 24 months’ imprisonment, such sentence to run consecutively to 15 months out of the 18 months’ imprisonment for the remaining charges. Cheng’s total term of imprisonment is reduced from 4 years to 3 years and 3 months; and
(一)鄭第13項控罪刑期改為24個月，和其餘控‍罪的18個月刑期中的15個月分期執行。鄭的總刑期由4年減至3年3個月；及

The sentences of Ku and Chan are reduced, from 2 years and 6 months and 2 years and 4 months respectively, to 2 years.
(二)顧和陳的刑期分別由2年6個月及2年4個月減至2年。

On 17 March 2016, Ku was sentenced to 6 months’ imprisonment in Kwun Tong Magistrates’ Courts for two counts of access to a computer with criminal intent (KTCC 4735/2015). After serving two months of the term, Ku was granted bail pending appeal. On 15 August 2017, Ku’s appeal was dismissed.
2016‍年3‍月17‍日，顧因兩‍項有犯罪意圖而取用電‍腦罪在觀塘裁判法院（KTCC 4735/2015案）被判處入獄6‍個月。顧服刑兩個月後獲准保釋等候上訴。2017年8月15日，顧的上訴被駁回。

When sentence was being passed for the present case on 26 October 2016, Ku was on bail pending appeal in KTCC 4735/2015, and so the trial judge did not deal with the sentence for KTCC 4735/2015.
2016‍年10‍月26‍日，在本案判刑時顧就KTCC 4735/2015案保釋等候上訴，因此原審法官沒有處理KTCC 4735/2015案的判刑。

In the absence of objection by the prosecution, and for the sake of simplicity, I order that the remaining term to be served by Ku for KTCC 4735/2015 as of 26 October 2016 is to run concurrently with the 2-year term in the present case.
在控方不反對的情況下及為了簡化事件，本席下令顧因KTCC 4735/2015案在2016‍年10‍月26‍日仍須服的餘‍下刑期和本案的2‍年刑期同期執行。

Hon Poon JA:
高等法院上訴法庭法官潘兆初：

I agree with the judgment of Yeung VP and the orders made in disposing of this appeal.
本席同意楊副庭長的判詞和處置本上訴作出的命‍令。

The key issue in the present case concerns the correct interpretation of section 7(1)(a), (c) and (g) of the Elections (Corrupt and Illegal Conduct) Ordinance (“the Ordinance”).  However, there is no decided case of the Court of Appeal level or above relating to that issue. In view of this, I would like to add a few observations of my own on the issue.
如何正確詮釋《選舉（舞弊及非法行為）條例》（《該‍條例》）第7(1)(a)、(c)和(g)條是本案關鍵的議題，之前卻無任何和該議題有關的上訴法庭以上的案例；有見及‍此，本席會就此議題提出一些看法以作補充。

A.The Ordinance: objectives and scope of application
A.《該條例》之目的和適用範圍

157.When it comes to statutory interpretation, the court will adopt a purposive approach. Put simply, the court will ascertain the meaning of the legislation based on the actual language or wording of the ordinance. At the same time, rather than isolating the provision to be interpreted, the court will globally consider that provision together with other relevant provisions in light of the context and purpose of the entire ordinance. When considering the context and purpose of the ordinance, the court can refer to the official record of the proceedings of the Legislative Council (Hansard) concerning that ordinance.
對條例釋義，法庭會採用按目的詮釋方式(purposive approach)。簡言之，法庭會從條例的實際用詞來確定立法的意義，但法庭不會孤立需要詮釋的條文，而是把該條文和其他有關的條文放在整個條例的意境(context)和目的(purpose)中來作整體考慮。在考慮條例的意境和目的時，法庭可以參考有關該條例之立法會會議過程的官方紀錄(Hansard)。

158.The objectives of the Ordinance are set out in section 3 thereof:
《該條例》之目的見第3條：

“The objects of this Ordinance are –
「本條例的目的是

(a) to ensure that, as far as practicable, elections to elect the Chief Executive and persons to membership of the Legislative Council, District Councils and certain other public bodies and to be Rural Representatives are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct; and
(a)確保為選出行政長官、立法會議員、區議會議‍員、鄉郊代表及某些其他公共機構的成員而舉行的選舉，在切實可行的範圍內得以公平、公開和誠‍實地進行而無舞弊行為及非法行為；及

(b) to regulate electoral advertising so as to ensure, as far as practicable, the fairness and honesty of electoral advertising; and
(b)規管選舉廣告宣傳，以在切實可行的範圍內，確保選舉廣告宣傳得以公平和誠實地進行；及

(c) to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure.”
(c)確保候選人妥善交待在選舉中款項的支出及所索取和收取的選舉捐贈，並確保候選人的開支不‍會超過訂明的開支限額。」

The Ordinance applies to various kinds of elections including elections to elect the Chief Executive, the members of the Legislative Council, Election Committee, District Council and Heung Yee Kuk, the Chairman or Vice-Chairman or a member of the Executive Committee of a Rural Committee, and a Rural Representative for a rural area: section 4. The Ordinance applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere: section 5.
《該條例》適用於行政長官、立法會、選舉委員會、區議會、鄉議局、鄉事委員會主席、副主席或執行委員會委‍員，和鄉郊地區的鄉郊代表的各種選舉：第4條。《該條‍例》適用於一切與選舉有關的行為，不論該行為是在香港境內或在其他地方作出：第5條。

In accordance with sections 3 to 5, the Ordinance covers all elections to relevant public offices and regulates all conduct relating to these elections, so as to ensure that, as far as practicable, all elections areconducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct.
根據第3條至第5條，《該條例》涵蓋所有相關公‍職的選舉，亦規管所有和這些選舉有關的行為，確保所有選舉在切實可行的範圍內得以公平、公開和誠實地進行而無舞弊行為(corrupt conduct)及非法行為(illegal conduct)。

B.Corrupt conduct under section 7(1)
B.第7(1)條的舞弊行為

161.Corrupt conduct includes unlawful conduct in the nature of bribery.  Relevant to the present case are section 7(1)(a), (c) and (g):
161.舞弊行為包括帶賄賂性質的違法行為。與本案有‍關的是第7(1)(a)、(c)及(g)條：

“(1)A person engages in corrupt conduct at an election if the person corruptly –
「(1)任何人舞弊地作出以下作為，即屬在選舉中作出舞弊行為 ——

(a)offers an advantage to another person as an inducement for the other person –
(a)提供利益予另一人

(i)to stand, or not to stand, as a candidate at the election; or
(i)作為該另一人在選舉中參選或不參選的誘因；

(ii)if the other person has been nominated as a candidate at the election, to withdraw the nomination; or
(ii)（如該另一人已在選舉中獲提名為候選人）作‍為該另一人撤回接受提名的誘因；或

(iii)if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or
(iii)（如該另一人已在選舉中獲提名為候選人）作‍為該另一人不盡最大努力促使該另一人當選的誘‍因；或

…
…

(c)offers an advantage to another person as an inducement for the other person to get, or try to get, a third person –
(c)提供利益予另一人

(i)to stand, or not to stand, as a candidate at the election; or
(i)作為該另一人令第三者或試圖令第三者在選‍舉中參選或不參選的誘因；或

(ii)if the third person has been nominated as a candidate at the election, to withdraw the nomination; or
(ii)（如該第三者已在選舉中獲提名為候選人）作‍為該另一人令該第三者或試圖令該第三者撤回接‍受提名的誘因；或

(iii)if the third person has been nominated as a candidate at the election, not to use the third person’s best endeavours to promote the election of the third person; or
(iii)（如該第三者已在選舉中獲提名為候選人）作‍為該另一人令該第三者或試圖令該第三者不盡最‍大努力促使該第三者當選的誘因；或

…
…

(g)solicits or accepts an advantage as an inducement to get, or try to get, another person –
(g)索取或接受利益

(i)to stand, or not to stand, as a candidate at the election; or
(i)作為令另一人或試圖令另一人在選舉中參選或不參選的誘因；或

(ii)if the other person has been nominated as a candidate at the election, to withdraw the nomination; or
(ii)（如該另一人已在選舉中獲提名為候選人）作‍為令該另一人或試圖令該另一人撤回接受提名的誘因；或

(iii)if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or
(iii)（如該另一人已在選舉中獲提名為候選人）作‍為令該另一人或試圖令該另一人不盡最大努力促使該另一人當選的誘因；或

…”
…」

162.Section 7(1)(a) and (c) relates to Party A offering an advantage to Party B as an inducement for Party B or Party C to do certain acts, with Party A as the offender. Section 7(1)(g) relates to Party B soliciting or accepting an advantage as an inducement for Party C to do certain acts, with Party B as the offender.
162.第7(1)(a)和(c)條是甲方提供利益予乙方作為乙方或丙方行為的誘因，犯罪者是甲方。第7(1)(g)條是乙方索‍取或接受利益作為丙方行為的誘因，犯罪者是乙方。

C.Actus reus
C.罪行行為 (actus reus)

163.The corrupt conduct under section 7(1)(a) and (c) shares a common feature, namely the offering of an advantage as an inducement, whereas the corrupt conduct under section 7(1)(g) is soliciting or accepting an advantage as an inducement. This shows that both advantage and inducement are crucial elements of the actus reus of the relevant offences. This part will deal with advantage and part C2 will deal with inducement.  Another element of the actus reus involves the three circumstances referred to in sub-paragraphs (i) to (iii) of section 7(1)(a), (c) and (g), and this will be dealt with in part C3.
163.第7(1)(a)和(c)條舞弊行為的共通點在於提供利益作為誘因，第7(1)(g)條則是索取或接受利益作為誘因，可‍見利益和誘因兩者都是有關控罪之犯罪罪行(actus reus)的重‍要元素。本部會討論利益，C2部會討論誘因。另外一個犯罪罪行元素涉及第7(1)(a)、(c)及(g)條第(i)至(iii)節提到的三種情況，這會在C3部討論。

C1.Advantage
C1.利益(advantage)

164.Section 2 of the Ordinance provides a statutory definition of “advantage”:
164.何謂利益，《該條例》第2條有法定的定義：

“advantage (利益) means –
「利益 (advantage) 指

(a) any valuable consideration, gift or loan; or
(a)任何有值代價、饋贈或借貸；或

(b) any office, employment or contract; or
(b)任何職位、受僱工作或合約；或

(c) the full or partial payment, release, discharge or liquidation of an obligation; or
(c)支付、免卻、解除或了結全部或部分義務；或

(d) the exercise of or forbearance from exercising a right or power; or
(d)行使或不行使權利或權力；或

(e) the performance of or forbearance from performing a duty; or
(e)履行或不履行職責；或

(f) any favour, including –
(f)任何優待，包括

(i) giving protection from a liability incurred or anticipated; and
(i)予以維護使免受已招致或預期招致的法律責任；及

(ii) giving protection from proceedings or possible proceedings of a disciplinary, civil or criminal nature; or
(ii)予以維護使免遭已採取或可能採取的紀律、民事或刑‍事法律程序起訴；或

(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;”
(g)任何其他服務（義務服務及提供娛樂除外），但如某項選舉捐贈的詳情已在提交有關主管當局的選舉申報書內提供，則利益一詞並不包括該項選舉捐贈；」

165.The statutory definition of “advantage” is very broad, encompassing virtually all kinds of benefits, but does not cover an election donation provided that the particulars thereof are given in an election return that has been lodged with the appropriate authority. In the context of section 7(1), the statutory definition of “advantage” aims to prohibit anyone from obtaining personal gains out of an election.
165.利益的法定定義十分廣泛，幾乎包括所有的益處，但不包括選舉捐贈，條件是該項選舉捐贈的詳情已在向有關主管當局提交的選舉申報書內提供。利益這法定定義，放在第7(1)條的意境內，其目的是禁止有人從選舉中得到個人私利 (personal gain)。

166.All elections inevitably involve funding and expenses. Unless the candidates have sufficient financial means to meet election funding and expenses by themselves, they will usually accept monetary donations, donations of goods or voluntary services. Even if a candidate has sufficient financial means to meet election funding and expenses, he/she may still accept monetary donations, donations of goods or voluntary services as part of his election campaign, so as to attract the support of the general public or electors or prove that he/she has such support, in order to generate influence for his/her campaign and increase his/her chance of winning the election. To this end, the Ordinance permits the offering of election donations to candidates as well as the acceptance of election donations by candidates, so that they can meet election funding and expenses.
166.任何選舉無可避免需要經費和開支。除非候選人有足夠的經濟實力可以自行支付選舉經費和開支，否則他們通‍常都會接受金錢的捐贈、物資的捐贈或義務服務。即使某候選人有足夠的經濟實力支付選舉經費和開支，他仍可能會接受金錢的捐贈、物資的捐贈或義務服務，作為其選舉工程的部份，以吸引或證明自己得到大眾或選民的支持，為其選‍舉造勢以增加當選的機會。為此，《該條例》容許人們向候選人提供選舉捐贈，亦同時容許候選人接受選舉捐贈，以應付其選舉經費和開支。

167.At the same time, since monetary donations, donations of goods or voluntary services are actual benefits given to candidates or those standing as candidates, the Ordinance also imposes various restrictions on the offering and acceptance of election donations, in order to achieve the statutory object of ensuring that, as far as practicable, elections are conducted fairly, openly and honestly.
167.同時，因為金錢的捐贈、物資的捐贈或義務服務都是給予候選人或參選人的實際益處，為要達到《該條例》的目的，即確保選舉在切實可行的範圍內得以公平、公開和誠‍實地進行，《該條例》也對提供和接受選舉捐贈有多方的約‍制。

168.The statutory definition of “election donation” is:
168.選舉捐贈的法定定義是：

“election donation (選舉捐贈), in relation to a candidate or candidates at an election, means any of the following donations –
「選舉捐贈 (election donation) 就某項選舉的一名或多於一名候選人而言，指以下任何捐贈

(a) any money given to or in respect of the candidate or candidates for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates;
(a)為償付或分擔償付該候選人或該等候選人的選舉開支，而給‍予該候選人或該等候選人或就該候選人或該等候選人而給予的任‍何金錢；或

(b) any goods given to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, and includes any goods given incidental to the provision of voluntary service;
(b)為促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當選，而給予該候選人或該等候選人或就該候選人或該等候選人而給予的任何貨品，包括由於提供義務服務而附帶給予的貨品；

(c) any service provided to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, but does not include voluntary service;”
(c)為促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當選，而向該候選人或該等候選人提供或就該候選人或該等候選人而提供的任何服務，但不包括義務服務；」

169.Item (a) of election donation relates to meeting or contributing towards meeting election expenses, and the statutory definition of “election expenses” is:
169.選舉捐贈的(a)項是償付或分擔償付選舉開支，而選舉開支的法定定義是：

“election expenses (選舉開支), in relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of –
「選舉開支 (election expenses) 就某項選舉的候選人或候選人組合而言，指在選舉期間前、在選舉期間內或在選舉期間後，由該候選人或該候選人組合或由他人代該候選人或該候選人組合

(a) promoting the election of the candidate or group; or
(a)為促使該候選人或該候選人組合當選；或

(b) prejudicing the election of another candidate or group,
(b)為阻礙另一候選人或另一候選人組合當選，

and includes the value of election donations consisting of goods and services used for that purpose;”
而招致或將招致的開支，包括包含貨品及服務而用於上述用途的選‍舉捐贈的價值；」

170.Section 18 of the Ordinance contains stringent provisions governing the use of election expenses:
170.《該條例》第18條對如何使用選舉開支有嚴格的規定：

“A candidate or other person who uses election donations for a purpose –
「任何候選人或其他人

(a) other than that of meeting, or contributing towards meeting, the election expenses of the candidate; or
(a)將選舉捐贈用於償付或分擔償付該候選人的選舉開支以外的用途；或

(b) in the case of an election donation consisting of goods or a service, other than that of promoting the election of the candidate or that of prejudicing the election of another candidate or other candidates,
(b)（如某項選舉捐贈包含貨品或服務）將該項捐贈用於促使該候選人當選或阻礙另一名候選人或另一些候選人當選以外的用途，

engages in corrupt conduct at an election.”
即屬在選舉中作出舞弊行為。」

In other words, an election donation can only be used for the purpose of the election campaign of the candidate who accepts that donation, and any other use will constitute corrupt conduct.
換句話說，選舉捐贈只可以用於接受該項捐贈之候選人自己的選舉工程，用於任何其他的用途都是舞弊行為。

171.The Ordinance also imposes stringent requirements on how candidates dispose of election donations. Section 19 provides as follows:
171.《該條例》對候選人如何處置選舉捐贈也有嚴格的規範。第19條訂明：

“(1) A candidate or candidates must, on receiving an election donation of more than $1,000 or, in the case of an election donation consisting of goods or a service, of more than $1,000 in value, issue to the donor a receipt for the donation. The receipt must specify the name and address of the donor as supplied by the donor.
「(1)如某候選人收取或某些候選人共同收取的某項選舉捐贈為$1,000以上或（如該項選舉捐贈包含貨品或服務）價值$1,000以‍上，則該候選人或該等候選人必須就該項捐贈向捐贈者發出收‍據。該收據必須載明捐贈者提供的捐贈者的姓名或名稱及地址。

(2) If an election donation of more than $1,000 or, in the case of an election donation consisting of goods, of more than $1,000 in value, is given to or for a candidate or candidates and the candidate or candidates do not know the name and address of the donor, the candidate or candidates must ensure that the donation –
(2)如給予某候選人或某些候選人或就某候選人或某些候選人而給予的某項選舉捐贈為$1,000以上或（如該項選舉捐贈包含貨‍品）價值$1,000以上，而該候選人或該等候選人不知道捐贈者的姓‍名或名稱及地址，則該候選人或該等候選人必須確保

(a) is not used –
(a)該項捐贈不會用於

(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or any of the candidates; or
(i)償付或分擔償付該候選人或任何該等候選人的選舉開支；或

(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or any of the candidates or of prejudicing the election of another candidate or other candidates; and
(ii)（如該項捐贈包含貨品）促使該候選人或任何該等候選人當選或阻礙另一名候選人或另一些候選人當選；及

(b) is given to a charitable institution or trust of a public character chosen by the candidate or candidates.
(b)將該項捐贈予該候選人或該等候選人所選擇的屬公‍共性質的慈善機構或慈善信託。

(3) If an election donation of money or goods has been given to or for a candidate or candidates and the donation –
(3)如給予某候選人或某些候選人或就某候選人或某些候選人而給予的某項選舉捐贈屬金錢或貨品，而該項捐贈

(a) has not been used –
(a)沒有用於

(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates; or
(i)償付或分擔償付該候選人或該等候選人的選‍舉開支；或

(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates; or
(ii)（如該項捐贈包含貨品）促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當‍選；或

(b) is not used in the case referred to in subsection (2),
(b)在第(2)款所提述的情況下不會用於該款(a)(i)或(ii)段所述用途，

the candidate or candidates must ensure that the donation is given to a charitable institution or trust of a public character chosen by the candidate or candidates.
則該候選人或該等候選人必須確保將該項捐贈給予該候選人或該等候選人所選擇的屬公共性質的慈善機構或慈善信‍託。

(4) If the aggregate of all election donations given to or for a particular candidate or a particular group of candidates exceeds the maximum amount prescribed under section 45, the candidate or the candidates belonging to the group must ensure that the excess (not including election donations of services) is given to a charitable institution or trust of a public character chosen by the candidate or those candidates.
(4)如給予某候選人或某候選人組合或就某候選人或某候選人組‍合而給予的所有選舉捐贈的總額超過根據第45條訂明的最高限‍額，則該候選人或該組合中的候選人必須確保將超額部分（不包‍括屬服務性質的選舉捐贈）給予該候選人或該等候選人所選擇的屬公‍共性質的慈善機構或慈善信託。

(5) If an election donation is received by a candidate or candidates, the candidate or each of the candidates engages in corrupt conduct at an election if –
(5)凡某候選人收取或某些候選人共同收取選舉捐贈，如

(a) the candidate or candidates fail to comply with subsection (1) or (2); or
(a)該候選人或該等候選人沒有遵從第(1)或(2)款；或

(b)the candidate or candidates fail to comply with any other requirement of this section before the time when the candidate’s or each candidate’s election return for the election is lodged in accordance with section 37.
(b)該候選人在按照第37條提交選舉申報書之前，或該等候選人在每名該等候選人按照第37條提交選舉申報書之‍前，沒有遵從本條的其他規定，則該候選人或每名該等候選人即屬在選舉中作出舞弊行為。

(6) In this section, charitable institution or trust of a public character (屬公共性質的慈善機構或慈善信託) means a charitable institution or trust of a public character that is exempt from tax under section 88 of the Inland Revenue Ordinance (Cap. 112).”
(6)在本條中，屬公共性質的慈善機構或慈善信託 (charitable institution or trust of a public character) 指根據《稅務條例》（第112章）第88條獲豁免繳稅的屬公共性質的慈善機構或慈善信託。」

172.Simply put, as far as the acceptance and disposal of election donations are concerned, section 19 provides that:
172.簡言之，在接受和處置選舉捐贈的事宜上，第19條規定：

(1)If an election donation is less than $1,000, the donor can be named or anonymous and the candidate does not have to issue a receipt to the donor.
若某項選舉捐贈是少於$1,000，捐贈者可以具名或匿名，候選人都不需向捐贈者發出收據。

(2)If an election donation amounts to $1,000 or above, the donor must be named and the candidate must issue to the donor a receipt as specified in sub-section (1).
若某項選舉捐贈是$1,000或以上，捐贈者必須具‍名，而候選人亦必須向該捐贈者發出第(1)款的收‍據。

(3)If an election donation amounts to $1,000 or above and the donor is anonymous, the donation must not be used for the purpose of the candidate’s election campaign and can only be given to a charitable institution or trust of a public character chosen by the candidate pursuant to sub-section (2).
若某項選舉捐贈是$1,000或以上，而捐贈者是匿‍名，則候選人不能把該項捐贈用於其選舉工程，而只可以依第(2)款將它給予他所選擇屬公共性質的慈善機構或慈善信託。

(4)For any election donation which has not been used for the purpose of his election campaign, the candidate must ensure that it is given to a charitable institution or trust of a public character pursuant to sub-section (3). If the aggregate of all election donations received exceeds the statutory maximum, the candidate must ensure that the excess is given to a charitable institution or trust of a public character chosen by him pursuant to sub-section (4) ‍. In a nutshell, the candidate must not obtain or receive any personal gain out of the election donations.
任何沒有用於其選舉工程的選舉捐贈，候選人必須依第(3)款確保將它給予屬公共性質的慈善機構或慈善信託。如收到的選舉捐贈總額超過法定的最高限額，則該候選人必須依第(4)款確保將超額部分給予他所選擇屬公共性質的慈善機構或慈善信託‍。一言以蔽之，候選人不能從選舉捐贈中獲取或得到任何個人的私利。

173.Section 37(1) of the Ordinance also provides that upon the conclusion of the election, the candidate must, before the expiry of a prescribed period, lodge with the appropriate authority an election return setting out the candidate’s election expenses at the election and all election donations received by or on behalf of the candidate in connection with the election. Section 37(2) provides that the candidate must ensure that the return is accompanied by such documents as are required under that provision. A candidate engages in corrupt conduct if he/she lodges a false or misleading election return: section 20. A candidate who fails to lodge an election return as required by section 37 commits an offence: section 38.
173.《該條例》第37(1)條亦規定候選人在選舉完畢後，在法定的限期前，向有關主管當局提交選舉申報書，列‍出該候選人在該項選舉中的選舉開支；及曾由該候選人或由他‍人代該候選人在與該項選舉有關連的情況下收取的所有選舉捐贈。第37(2)條訂明候選人必須確保申報書附有該條‍文要求的文件。如任何候選人提交虛假或具誤導性的選舉申報書都是舞弊行為：第20條。如候選人沒有按照第37條的規定提交申報書，即屬犯法：第38條。

174.Viewing as a whole the aforesaid provisions regarding the offering and acceptance of election donations, the legislative intent is in line with the objects as stated in section 3, namely to ensure that, as far as practicable, elections are conducted fairly, openly and honestly:
174.綜合以上有關提供和接受選舉捐贈的條文，其立法用意和第3條的目的相符，都是為了確保選舉在切實可行的範圍內得以公平、公開和誠實地進行：

(1)All candidates are subject to the same maximum amount in respect of election expenses; therefore, from the perspective of election expenses, all candidates are on a level playing field at the election. Even if a candidate has an edge over others in terms of means or financial resources, he/she cannot increase election expenses so as to put those with more limited means or financial resources at a disadvantage.
每名候選人都受同樣最高的選舉開支限額所限‍制；是故，從選舉開支的角度來考慮，每名候選人都是在同一的公平競爭環境 (level playing field) 進行選舉。某候選人即使有財力或經濟資源的優勢，也不能加大其選舉開支，而令其他財力或經濟資源較弱的對手吃虧。

(2)Every election donation is constrained by relevant provisions, so as to ensure that (a) the offering, acceptance and disposal of election donations are monitored in an open and transparent manner; (b) election donations are only used for the purpose of election expenses and will not be put to any other use; (c) all election donations that exceed the prescribed maximum cannot be retained by the candidate and must be given to a charitable institution or trust of a public character; (d) the candidate must, in accordance with section 37, give a clear account in the election return of such matters as the election donations received, their disposal and election expenses.
每項選舉捐贈都受到相關條文的約束，以確保(a)選舉捐贈的提供、接受和處置都是受到公開透明的監察；(b)選舉捐贈只會用於選舉開支的用途，而不會用於其他用途；(c)所有超過法定最高限額的選舉捐贈，候選人都不能保留，必須給予屬公共性‍質的慈善機構或慈善信託；(d)候選人必須按‍照第37條在申報書內清楚交代收到的選舉捐‍贈、其處置和選舉開支等事宜。

(3)No candidate may obtain or receive any personal gain as a result of his/her standing as a candidate. This serves to ensure that the election is conducted honestly.
每名候選人不能從參選獲取或得到個人私利，這確‍保選舉是誠實地進行。

175.As this is the legislative purpose of the Ordinance vis-à-vis election donations, the statutory definition of “advantage” encompasses virtually all sorts of benefits, but at the same time does not include election donations properly declared in accordance with the law, the purpose being to prohibit candidates from obtaining any personal gain out of the election. In the context of section 7(1), its purpose is to prohibit anyone at the election from obtaining any personal gain out of the election.
175.因為這是《該條例》對選舉捐贈的立法目的，所以利益的法定定義一面包羅幾乎所有的益處，但同時不包括經‍過依法申報的選舉捐贈，其目的是禁止候選人從選舉得到任何個人私利；放在第7(1)條的意境內，其目的是要禁止在選舉中有人從選舉得到個人私利。

C2. Offer, solicit or accept an advantage as inducement
C2.提供、索取或接受利益作為誘因(offer, solicit or accept an advantage as inducement)

176.Section 7(1)(a) and (c) concerns offering an advantage as an inducement whereas section 7(1)(g) concerns soliciting or accepting an advantage as an inducement.
176.第7(1)(a)和(c)條是提供利益作為誘因，而第7(1)(g)條是索取或接受利益作為誘因。

177.For the purpose of section 7(1)(a) and (c), it is sufficient that Party A offered an advantage to Party B as an inducement; whether Party B accepted the advantage is neither here nor there. If Party B accepted it, he/she would have committed an offence under section 7(1)(e) or section 7(1)(g).
177.為著第7(1)(a)和(c)條的目的，甲方向乙方提供利‍益作為誘因已經足夠，乙方有沒有接受該利益並非關鍵。若‍乙方有，他也干犯了第7(1)(e)條或第7(1)(g)條的罪行。

178.Likewise, for the purpose of section 7(1)(g), it is sufficient that Party B solicited an advantage from another person; whether the latter then provided Party B with an advantage is neither here nor there. If the latter did, he/she would have committed an offence under section 7(1)(c).
178.同樣的，為著第7(1)(g)條的目的，乙方向他人索‍取利益已經足夠，後者有沒有因而向乙方提供利益並非關鍵。若後者有這樣做，他便干犯了第7(1)(c)的罪行。

C3.Circumstances set out in sub-paragraphs (i) to (iii)
C3.第(i)至(iii)節的情況

179.Section 7(1)(a), (c) and (g) refers to three circumstances:
179.第7(1)(a)、(c)及(g)條提到三種情況：

(1)Sub-paragraph (i) - Party B or Party C to stand, or not to stand, as a candidate at the election;
第(i)節—乙方或丙方在選舉中參選或不參選；

(2)Sub-paragraph (ii) - if Party B or Party C has been nominated as a candidate at the election, to withdraw the nomination;
第(ii)節—如乙方或丙方已在選舉中獲提名為候選人，撤回接受提名；

(3)Sub-paragraph (iii) - if Party B or Party C has been nominated as a candidate at the election, not to use his best endeavours to promote his election.
第(iii)節—如乙方或丙方已在選舉中獲提名為候選人，不盡最大的努力促使其當選。

180.Sub-paragraphs (ii) and (iii) clearly refer to the situation in which Party B or Party C has been nominated as a candidate.
180.第(ii)及第(iii)節明顯是指乙方或丙方已經獲提名成為候選人的情況。

181.The scope of sub-paragraph (i) needs further explanation.
181.第(i)節所包涵的範圍需要多點解釋。

182.According to section 2 of the Ordinance, the statutory definition of “candidate” is:
182.根據《該條例》第2條，候選人(candidate)的法定定義是：

(a)“candidate” means a person who stands nominated as a candidate at an election; and
指在某項選舉中接受提名為候選人的人；

(b)“candidate” also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election,
亦指在某項選舉的提名期結束前的任何時間曾公開宣布有意在該項選舉中參選的人，

and in relation to an election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, “candidate” includes a person who is one of a group of candidates.
而就為選出立法會地方選區或區議會（第二）功能界別議員而舉行的選舉而言，包括候選人組合中的候選人。

183.The statutory definition of “group of candidates” is:
183.候選人組合(group of candidates)的法定定義是：

(a)“group of candidates” means the persons whose names appear on a list of candidates nominated for election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, other than persons whose names have, in accordance with section 38 of the Legislative Council Ordinance (Cap. 542), been excluded from or struck off such a list; and
就為選出立法會地方選區或區議會（第二）功能界‍別議員而舉行的選舉而言，指名列獲提名參選的候選人名單上的人，但不包括姓名按照《立法會條‍例》（第542章）第38條自該名單上除去或剔‍除的人；

(b)in relation to a time before the close of nominations for such an election, “group of candidates” also means those persons who have publicly declared their intention to stand for election as candidates whose names appear on such a list, but does not include persons who have publicly revoked their declaration of intention to stand at the election.
亦指在該項選舉的提名期結束前的任何時間曾公‍開宣布有意以名列該名單的候選人的身分參選的‍人，但不包括已公開撤銷該項宣布的人。

There are thus two types of candidates: (1) a person who stands nominated as a candidate; and (2) a person who, before the close of nominations, has publicly declared an intention to stand as a candidate but has not yet been nominated.
是故，候選人有兩類：(1)已經接受提名成為候選人的人；和(2)在提名期結束前曾公開宣布有意參選，但還未接受提‍名的人。

184.For Party B or Party C “to stand as a candidate”, he/she either stands nominated as a candidate or has publicly declared an intention to stand as a candidate before the close of nominations, although has not yet been nominated.
184.乙方或丙方「參選」(to stand as a candidate)，可以是他接受提名成為候選人；或是他雖然仍未接受提名成為候選人，但在提名期結束前公開宣布有意參選。

185.For Party B or Party C “not to stand as a candidate”, the following circumstances may be involved:
185.乙方或丙方「不參選」(not to stand as a candidate)可以有下面的情況：

(1)If he/she has never publicly declared an intention to stand as a candidate, he/she will neither so declare nor stand nominated as a candidate. In that case, of course he/she is not to stand as a candidate.
若他從未公開宣布有意參選，他既不會這樣做也不‍會接受提名成為候選人。他這樣做當然就是不‍參‍選。

(2)He/she has publicly declared an intention to stand as a candidate but has thereafter publicly revoked that declaration. In that case, naturally he/she is not to stand as a candidate.
他曾公開宣布有意參選，但之後公開撤銷該項宣‍布。他這樣做自然就是不參選。

(3)He/she has publicly declared an intention to stand as a candidate but does not stand nominated as a candidate. Despite the fact that he/she has publicly declared to stand as a candidate and is therefore still a candidate as a matter of law, only those who are validly nominated can stand as candidates upon the close of nominations and be elected by electors. Therefore, by not standing nominated, he is, in effect, not to stand as a candidate.
他曾公開宣布有意參選，但他不接受提名成為候選人。雖然他曾公開宣布參選，所以在法律上仍是候選人，但惟有獲得有效提名的候選人才可以在提名期結束後參選和被選民投票選上，因此他不接受提‍名，實際上就是不參選。

186.The offences under section 7(1)(a), (c) and (g) are offering, soliciting or accepting an advantage as an inducement for the acts referred to in sub-paragraphs (i), (ii) or (iii). It will be sufficient as long as the offender offered, solicited or accepted an advantage as an inducement; whether the acts referred to in sub-paragraphs (i), (ii) or (iii) were actually done is neither here nor there.
186.第7(1)(a)、(c)和(g)條的罪行是提供、索取或接受利益作為作出第(i)、(ii)或(iii)節列出之舉措的誘因，只要犯案者有提供、索取或接受利益作為誘因便已足夠，事實上第(i)、(ii)或(iii)節列出之的舉措有沒有作出來並非關鍵。

D.Mens rea
D.造意 (mens rea)

187.Section 7(1) starts by stating that a person engages in corrupt conduct at an election if he/she “corruptly” does the specified acts. “Corruptly” is the mens rea of all the offences under section 7(1). The interpretation of the word “corruptly” requires a consideration of the context and purpose of the relevant provisions.
187.第7(1)條第一句是「任何人舞弊地作出以下行‍為」，『舞弊地』(corruptly)是第7(1)條所有罪行的造意。如何詮釋舞弊地這詞，需要考慮相關條文的意境和目的。

188.The offences under section 7(1) aim to prohibit anyone from obtaining personal gains from an election. Any act of offering, soliciting or accepting an advantage goes against the legislative purpose of enacting the section 7(1) offences and will certainly prevent an election from being conducted fairly, openly and honestly. In other words, the section 7(1) offences must be inherently culpable. Therefore, as long as the offender had the intent to commit the corrupt conduct in question, he must have acted “corruptly”. The dual intent mentioned by the trial judge is unnecessary.
188.第7(1)條的罪行旨在禁止任何人在選舉中得到個‍人私利。任何提供、索取或接受利益的行為，都是違反第‍7(1)‍條罪行的立法目的，必然會妨礙選舉在公平、公開和誠實的情況下進行。換句話說，第7(1)條罪行的罪責必然是固有的(inherently culpable)。因此，只要犯案者有意圖作出涉案的舞弊行為，他必然已是『舞弊地』行事。原審法官所‍說的雙重意圖並無需要。

189.The applicant cited the Hansard in relation to the amendment of section 7(1), which shows that the word “corruptly” was not in the original bill and was added only after deliberation by the Legislative Council. This, in my view, offers little assistance to the interpretation of the word “corruptly”. As mentioned above, the court may refer to the Hansard to ascertain the context and purpose of an ordinance. However, the court usually will not determine the meaning of words in a particular provision by reference to discussions in the Legislative Council. In respect of the Ordinance, its context and purpose, which are expressly stated in section 3, cannot be clearer. In interpreting the word “corruptly” by way of the purposive approach, regard must still be had to the actual words used by the legislature and the objective legislative intent expressed by those words.
189.申請人引用有關修訂第7(1)條之立法會會議過程的官方紀錄(Hansard)，當中顯示本來的條例草案並無『舞弊地』一詞，這詞是立法會審議後才加上的。本席認為，這點對如何詮釋『舞弊地』沒有太大幫助。如上文所說，法庭可以參考立法會會議過程的官方紀錄，以得出條例的意境和目‍的，但法庭一般都不會以立法會的討論來決定某條文用詞的意思。就《該條例》，其意境和目的是清楚不過，因為在第3條已經有明文表述。根據按目的詮釋方式詮釋『舞弊地』這詞，還是要看立法會實際的用詞，和該用詞客觀地所表達的立法意思。

E.No Violation of the Basic Law or the Bill of Rights
E.並無違反《基本法》或《人權法》

190.Finally, it must be pointed out that the purpose of the Ordinance is to ensure that elections are conducted fairly, openly and honestly, and section 7(1) prohibits the relevant corrupt conduct so as to eradicate the manipulation of or influence on the outcome of elections by people using financial means, which hinders electors and candidates from exercising their free will through elections. Section 7(1) does not violate the provisions of the Basic Law and the Bill of Rights relating to elections. In this respect, the position taken by and the submissions made by Mr. Kwok on behalf of the 2nd Applicant are wholly untenable.
190.最後，本席必須指出，《該條例》的目的是要確保有關選舉得以公平、公開和誠實地進行，第7(1)條禁止有關的舞弊行為發生，旨在杜絕有人以財力操控或影響選舉結‍果，妨礙選民和候選人以選舉表現其自由意志。第 7(1) 條沒有違反《基本法》和《人權法》有關選舉的條文。代表第‍二申請人的郭大律師在這方面的立場和所有陳詞完全站不住腳。

F.Conviction is Correct
F.定罪裁決正確

191.On the correct interpretation of section 7(1)(a), (c) and (g) of the Ordinance, and in light of the findings of fact of the trial judge, the 1st to 3rd Applicants must have committed the relevant offences. The guilty verdicts passed on them by the trial judge are entirely correct.
191.根據《該條例》第7(1)(a)、(c)及(g)條的正確詮釋，和原審法官的事實裁斷，第一至第三申請人必然有干犯相關的控罪。原審法官裁定他們罪成是完全正確的。

Hon Pang JA:
高等法院上訴法庭法官彭偉昌：

192.I agree with the judgments of Yeung VP and Poon JA.
192.本席同意楊副庭長和潘上訴法庭法官的裁決。

Mr. Jonathan Man, SADPP and Ms. Samantha Chiu, SPP of the Department of Justice, for the respondent.
答辯人：由律政司高級助理刑事檢控專員萬德豪及高級檢‍控官招秉茵代表。

The 1st Applicant in person, present.
第一申請人：沒有律師代表，親自出庭應訊。

Mr. Douglas Kwok, instructed by Bond Ng Solicitors, for the 2nd Applicant
第二申請人：由伍展邦律師行轉聘大律師郭憬憲代表。

Mr. Edwin Choy and Mr. Joe Chan, instructed by Messrs Simon S.M. Kwok & Co., for the 3rd Applicant.
第三申請人：由郭紹文律師事務所轉聘大律師蔡維邦及大‍律師陳偉彥代表。