Hong Kong has always been highly acclaimed for its clean elections. The principal instrument for ensuring that elections are fairly conducted is the Elections (Corrupt and Illegal Conduct) Ordinance, which was enacted in 2000, and is intended, as its long title says, “to prohibit corrupt conduct and illegal conduct at elections”. It is administered, appropriately enough, by the Independent Commission Against Corruption, which has always applied the ECICO in a firm, if realistic manner.
Much of the election-related conduct proscribed by the ECICO may seem pretty small beer, but election outcomes can sometimes be close-run things, turning on just a handful of votes. Any type of impropriety, therefore, is strictly controlled, even down to buying potential voters a round of drinks. In particular, the ECICO criminalizes the solicitation of votes, directly or indirectly, through the provision of food, drink or entertainment (Sect.12). Any such conduct is punishable, on summary conviction, with a fine of HK$50,000 ($6,430) and imprisonment for one year, and, on indictment, with a fine of HK$200,000 and imprisonment for three years (Sect.22).
On March 11, 2018, a Legislative Council by-election was held for the Hong Kong Island Geographical Constituency, and was contested by four candidates, including Au Nok-hin, the eventual winner. Prior to the election, Au uploaded several posts on his media page, announcing that he would be holding a rally in Edinburgh Place on the evening of March 3, 2018. In a post shortly before the rally, he revealed, presumably to encourage people to attend, that the Cantopop entertainer Anthony Wong Yiu-ming would be performing at the rally.
Although, therefore, the two cases were wholly different in terms of offense seriousness, the binding over procedure still deserves to be better understood. While a binding over order is certainly not on a par with a conviction, it ought not to be viewed as a let-off. It is a form of preventive justice, and there will be financial consequences if there is further misconduct during the operational period
At the rally, Au duly set out his platform, and Wong sang two songs, for which he received no remuneration. Having performed, Wong then addressed the audience, urging them to vote for Au in the by-election. This was all video-recorded, and, the next day, Au shared the video on his social media page, which was asking for trouble. However, after the election was over, in the return which candidates are required to make to the electoral authorities, he reported the video and the post showing Wong’s performance as part of his election advertisements. There was, in other words, no attempt at concealment on Au’s part.
At some point, however, Wong’s involvement at Au’s rally triggered a complaint by somebody familiar with the law which bans the use of entertainment by election candidates, and the ICAC began an investigation. On Aug 2, it duly charged Au and Wong with an offense of engaging in corrupt conduct by providing voters with entertainment at the by-election (ESCC 1680/2021). By this time, of course, 41 months had elapsed since the alleged offense, and the reasons for the delay in processing the case, simple as it was, have not been clarified, although it was possibly due to the lateness of the complaint.
Be that as it may, shortly after the suspects were charged, their lawyers made representations to the Department of Justice, urging that their cases be disposed of by means of binding over orders, involving good behavior bonds. Although not always understood by the general public, the binding over procedure is an established feature of the legal landscape, with its origins in the early common law. When deployed, it is invariably as an alternative to prosecution, but only in the less serious cases. When this occurs, the prosecution offers no evidence against the accused person, who, in return, acknowledges his culpability before the court and accepts its sanction, without the need for a trial.
In the event, the representations made by the lawyers representing Au and Wong were successful, and the prosecution did not proceed. As the ICAC explained, “after considering the relevant factors, including the overall circumstances of the case, the relatively lesser criminalities of the defendants and their attitudes towards the charge, the Department of Justice agreed to deal with the case by way of bind over procedure and offered no evidence to the charge against the duo”. Although this was quite vague, it seems, reading between the lines, that the department may well have been influenced by such factors as the remorse of the accused persons, their antecedents, the absence of any attempt to conceal what occurred, the staleness of the matter, the relatively low-grade breach of the law, and the willingness of both men to acknowledge in open court that what they did was wrong.
It is, however, never open to the prosecution and the defense to agree between themselves to wrap up a case by means of a binding over order, and the court itself always has the last word. A court can indicate that a binding over order is not appropriate, although, if the parties are themselves agreed as to its suitability, this rarely happens. Indeed, in this case, the court did not demur, and the principal magistrate, Peter Law Tak-chuen, bound each accused over in the sum of HK$2,000 to be of good behavior, to keep the peace, and to observe the ECICO, for a term of 18 months. If, during that time, either breaches the terms of the order, they stand to forfeit the money pledged.
After the two men had been bound over, some people questioned why they had not been prosecuted, pointing to other cases which had been allowed to run their course. In particular, they queried why a legislative councilor’s aide, Wong Wai-ha, and a volunteer, Deng Yimei, had been sentenced to eight months’ imprisonment on May 25, for breaching the ECICO by trying to drum up votes for another candidate in the same by-election of March 11, 2018. However, no two cases are ever identical, and that case was far more serious, involving bribery by the offering of advantages to potential voters. When the deputy magistrate, Peter Hui Shiu-keung, imprisoned Wong and Deng, who denied their guilt, he said they “offered multiple advantages to multiple eligible voters”, with the evidence indicating that the advantages in question were “lucky bags”, each containing gifts worth HK$100.
Although, therefore, the two cases were wholly different in terms of offense seriousness, the binding over procedure still deserves to be better understood. While a binding over order is certainly not on a par with a conviction, it ought not to be viewed as a let-off. It is a form of preventive justice, and there will be financial consequences if there is further misconduct during the operational period. It is also a rehabilitative measure, in the sense that it involves an open acknowledgment of guilt and provides the person who is bound over with an incentive to behave appropriately in future.
It is, moreover, by no means uncommon for the defense lawyers to invite the Department of Justice to bind their clients over, although many representations are dismissed as unmeritorious. When considering these requests, the prosecutors, having reminded themselves that the courts will only agree to binding over orders in the less serious cases, carefully evaluate the facts and the circumstances of the accused person, and decide if the public interest requires a prosecution. As a rule of thumb, the more serious the offense the less likely it is that prosecutors will agree to a case being bound over.
It may, however, not be appropriate to proceed with a prosecution if the consequences to the accused person will be out of all proportion to the gravity of the offense. This situation sometimes arises, for example, when students get involved with minor offenses, like simple possession of tiny quantities of narcotics, and may forfeit their careers if prosecuted. Other relevant factors include the likely penalty after conviction, the age, antecedents and character of the accused, his/her mental state, the circumstances of the offense, the likelihood of repetition, and the attitude of the victim, if any. The application of these criteria is certainly not an exact science, although a just disposal of the case is uppermost in the minds of prosecutors when they exercise their discretion on whether to agree to a case being bound over.
Although Au and Wong will undoubtedly be relieved that they have not had to face a trial and a likely conviction for a corruption-related offense, they have had to publicly repent and promise not to misbehave in future. Some people may have wanted to see them convicted and punished, but the criminal justice system does not always have to insist on its pound of flesh. While corrupt electoral practices are always serious, it is only right, if circumstances suggest that an alternative means of achieving justice is appropriate, that prosecutors should be willing to follow that path.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.