Read the full judgment text of CACC 444/2014 on BabelCite. This Court of Appeal judgment was delivered on 16 February 2016 before Hon Yeung VP, Hon Lunn VP, Hon Pang JA.
Criminal law – misconduct in public office – conspiracy to commit misconduct in public office – Prevention of Bribery Ordinance – bribery of former Chief Secretary of HKSAR – secret payments by major property developer SHKP – whether 'being or remaining favourably disposed' is a recognised form of misconduct in public office – whether the prosecution must prove a specific or generic act of misconduct – 'general sweeteners' / 'keeping sweet' doctrine – section 159A Crimes Ordinance – 'course of conduct' – serious abuse of public trust – deterrence – Leighton Hill flats provided rent-free – 30-month tenancy agreement – $8.5 million paid days and hours before taking office – Ma Wan Project and WKCD Project – payments of $11.182 million in November-December 2007 – Longally investment agreement – inconsistency of verdicts argument – sentencing for bribery of senior public officer – consecutive sentences for distinct conspiracies – good character discount to be applied to each individual sentence – total sentence maintained at 6 years' imprisonment. The case concerned the prosecution of Rafael Hui, the former Chief Secretary of the HKSAR, and three co-accused from the Kwok family and SHKP. The principal issue was whether the offence of conspiracy to commit misconduct in public office, as particularised in Count 5, was known to law where the alleged agreement was that the public officer would 'be or remain favourably disposed' to the payer in return for very large secret payments, without any specific or generic act of abuse of power being identified. The Court of Appeal, following Shum Kwok Sher (2002) 5 HKCFAR 381 and AG's Reference (No 3 of 2003) [2004] 2 Cr App R 23, held that the prosecution was not required to prove a specific or generic act of misconduct; the gravity of misconduct was to be assessed by reference to the responsibilities of the office and officeholder, and the acceptance of millions in secret payments by a senior public officer in return for a general favourable disposition could constitute a gross departure from those responsibilities. The court held that such a 'continuous act of favouritism' could amount to a 'course of conduct' under section 159A of the Crimes Ordinance (Cap 200), supporting a charge of conspiracy. The court further held that the trial judge's directions on Count 5 were correct, that the convictions on Count 7 were not inconsistent with the acquittals of the Kwok brothers on that count, and dismissed all four appeals against conviction. On Thomas Chan's appeal against sentence, the court allowed the appeal to the extent of quashing the aggregate sentence and re-imposing 4 years and 3 months on each of Counts 5 and 7 with 21 months consecutive on Count 7, so that the 9-month good character discount was applied to each individual sentence rather than to the aggregate. The total sentence remained 6 years' imprisonment.
Legal issues: Whether 'being or remaining favourably disposed' is a known form of misconduct in public office for the purposes of conspiracy under section 159A Crimes Ordinance · Adequacy of the trial judge's directions to the jury on Count 5 · Whether convictions on Count 7 are unsafe as inconsistent with acquittals of Thomas Kwok and Raymond Kwok on the same count · Application of good character discount to individual sentences rather than the aggregate · Whether sentences on Counts 5 and 7 should be ordered to be served consecutively
Outcome: Appeals against conviction of Rafael Hui, Thomas Kwok, Thomas Chan and Francis Kwan dismissed. Thomas Chan's appeal against sentence allowed in part to restructure the good character discount, but the total sentence of 6 years' imprisonment is maintained.
Cited by 2 cases · Cites 4 cases