HKSAR v. Hui Rafael Junior also known as Hui Si-yan Rafael and Others

CACC 444/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2014

(ON APPEAL FROM HCCC NO. 98 OF 2013)

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BETWEEN

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J U D G M E N T
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Hon Lunn VP (giving the Judgment of the Court) :

1.Rafael Hui, Thomas Kwok, Thomas Chan and Francis Kwan, referring to the appellants by their designation as defendants at trial, apply by Notices of Motion for orders certifying that points of law of great and general importance are involved in the decision of this Court, dated 16 February 2016, in which judgment this Court dismissed the appellants’ appeals against their respective convictions on 19 December 2014 on various counts after trial by Macrae JA and a jury.  All four defendants seek certification of points of law in relation to Count 5 [1] on the indictment, of which all of them were convicted.  In addition, Rafael Hui and Thomas Chan seek certification of points of law in relation to Count 7 [2].  With the consent of the parties, the Court has dealt with the applications on the papers.  The following questions, by the respective defendants, are posed as identifying points of law arising from the judgment:

A. Rafael Hui

“ 1. On a charge of conspiracy to commit misconduct in public office, whether it is an element of the offence requiring proof that the conspirators agreed and intended the public officer would perform an act of abuse of his public office and/or a physical act in breach of duty?

2. Can acceptance of payment for the purpose of inducing “favourable disposition” by a would-be public officer, without an intention to willfully commit a serious misconduct in public office, be capable of being a sufficient actus reus of the offence of Misconduct in Public Office?

3. Does a conspiracy, under section 159A of the Crimes Ordinance, Cap 200, to commit Misconduct in Public Office admit a different definition of the “misconduct” than the one required of for the purpose of the offence of Misconduct in Public Office per se?

4. In an offence under section 4(1) of the Prevention of Bribery Ordinance, Cap 201, do the allegations by the prosecution as to the provenance of the bribe and the object of the bribe constitute essential ingredients of the offence?

5. In an offence of a conspiracy, under section 159A of the Crimes Ordinance, Cap 200 to commit the offence under section 4(1) of the Prevention of Bribery Ordinance, Cap 201, do the allegations by the prosecution as to the provenance of the bribe and the object of the bribe constitute essential ingredients of the offence?”

B. Thomas Kwok

“ 1. On a charge of conspiracy to commit misconduct in public office, whether:-

(1) it is necessary to prove that the conspirators agreed and intended the public officer would perform a physical act or omit to act in breach of duty? [CA§21, 220-226]

(2) the offence can be constituted by proof that the conspirators agreed that in return for payment to a prospective public officer he would “be or remain favourably disposed” to the payer while in public office, without any need to prove that he was intended to act/not act in accordance with that disposition?  [CA§223-226]

(3) the Court of Appeal’s analysis of Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 is correct? Is the timing of the payment irrelevant? [CA§§38, 42]

(4) “being or remaining favourably disposed” can be held as “an act of continuous favouritism” which constitutes the necessary “course of conduct” for the purposes of a conspiracy charge under section 159A of the Criminal Procedure Ordinance (Cap 221) [(sic) - Crimes Ordinance, Cap 200?]? [CA§44]

(5) the conduct and action of a public officer during his public office is relevant? In particular, if the Prosecution is unable to establish that the public officer did anything improper and in breach of his official duties to favour the payer, is that an essential matter for the Jury to consider in determining whether the offence is (dis)proved? [CA§21] Is a Judge entitled to direct the jury that the law does not require an act of favour to be proved because “it may be very difficult to show that any favour was in fact performed” (?) [CA§§23, 38-39]

2. Whether the offence of misconduct in public office “mirrors” the statutory bribery offence under section 4 of the Prevention of Bribery Ordinance so that the payment to a prospective public officer in return for favourable disposition may be described properly as a bribe (?) [CA§§231-244]”

C. Thomas Chan

“ 1. Whether the common law offence of Misconduct in Public Office requires proof of a willful and serious neglect of public duty and/or misconduct; such that a conspiracy to commit Misconduct in Public Office requires proof that the conspirators had agreed and intended the commission of such a willful and serious act of misconduct? [§§175, 193, 194, 218-226] 

2. Whether being or remaining merely of a certain state of mind (a ‘favourable disposition’) without proof also of an intention to commit or the commission of a willful and serious neglect of public duty and/or misconduct, is capable of amounting to Misconduct in Public Office; such that an agreement that someone should be or remain so favourably disposed is capable in law of amounting to a criminal conspiracy as defined by s.159A of the Crimes Ordinance, Cap. 200? [§226]

3. Whether an agreement to be or remain favourably disposed to someone thereby becoming vulnerable to corrupt demands intended to be made in the future is an agreement that necessarily involves the commission of an offence at the time of that agreement notwithstanding the absence at that time of an agreement and intention that serious neglect of public duty and/or misconduct would necessarily be committed? [§226]

4. Whether the timing of the payment of a general sweetener is irrelevant to the actus reus of the offence of Misconduct in Public Office such that Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, is of application to cases where reward is provided before a person becomes a public officer? [§227]

Count 7: S.4(1) Prevention of Bribery Ordinance, Cap. 201

5. Whether in an offence contrary to s.4(1) of the Prevention of Bribery Ordinance, Cap. 201, the identity of the offeror of the advantage is an essential element of the offence requiring to be alleged and proved? [§346]

6. Whether in an offence contrary to s.4(1) of the Prevention of Bribery Ordinance, Cap. 201, it is necessary to allege and prove that the advantage was offered by an identified offeror as an inducement to or reward for or otherwise was on account of a public servant performing or abstaining from performing or having performed or abstained from performing any act in his capacity as such? [§346]

7. Whether in a conspiracy to commit s.4(1) of the Prevention of Bribery Ordinance, Cap. 201, s.159A of the Crimes Ordinance, Cap. 200, requires there to be proof that the alleged conspirators intended or knew the identity of the alleged offeror of the advantage and that it was being paid as an inducement to or reward for or otherwise was on account of a public servant performing or abstaining from performing or having performed or abstained from performing any act in his capacity as such? [§346]”

D.  Francis Kwan

“ 1. Does “being or remaining favourably disposed” constitute the element of wilful misconduct by act or omission of the common law offence of Misconduct in Public Office?

2. For the offence of Conspiracy to commit Misconduct in Public Office:

(1) When particulars of the offence allege that the conspirators agreed that in return for a payment a public officer would wilfully misconduct himself in the course of or in relation to his public office by “being or remaining favourably disposed” to the payer, is it necessary to allege and prove that the conspirators agreed and intended that the public officer would wilfully misconduct himself by a specific or identified act or omission in favour of the payer? [CA§44, 226, 370]

(2) When particulars of the offence allege that the conspirators agreed that in return for a payment a public officer would wilfully misconduct himself in the course of or in relation to his public office by “being or remaining favourably disposed” to the payer, is such disposition a “course of conduct” in s.159A of the Crimes Ordinance (Cap. 200)? [CA§44, 226, 370]”

The submissions of the appellants

Count 5

2.In total, the four appellants posed no fewer than 20 questions in respect of points of law of great and general importance said to arise in relation to the offence of conspiracy to commit misconduct in public office.  The submissions advanced by the various appellants in support of their contentions, included that the prosecution was required to stipulate and prove :

· that it was agreed and intended that the public officer act/fail to act in respect of a specific act;

· the nature of the intended breach of duty; and

· that it was agreed and intended that the public officer committed a wilful or serious breach of a public duty and/or misconduct.

3.Further, it was submitted that a point of law of similar importance arose in respect of whether or not a public officer “being or remaining favourably disposed” to the payer of a payment was a state of mind; the conduct element of misconduct in public office; and an act of continuous favouritism.  Another issue of law arose, if it was prosecutioncasethatthepaymenttothepublicofficerwasagoodwill payment made to provide a basis for future corrupt demands, whether such payment was made with such corrupt contemplation.  Finally, whether the timing of the payment was irrelevant to the offence of misconduct in public office.

Count 7

4.In support of the submission that the points of law of great and general importance arose in the questions posed in respect of the issues said to arise in relation to the offence of conspiracy to offer an advantage to a public servant, Count 7, it was contended that the identity of the offeror of the advantage was an ingredient of the offence, proof of which, together with proof of knowledge in the co-conspirators of the identity of the offeror, was required of the prosecution.

The submissions of the respondent

5.In inviting the Court to refuse the applications, the respondent submitted that the matters now raised by the appellants repeat the arguments which have been rejected by the Court and do not identify any points of law of great and general importance. 

6.Of the offence of conspiracy to commit misconduct in public office, it was submitted that the judgment of this Court accorded with well-established principle, namely that: “the core of the offence of misconduct in public office is abuse of office, and an officer who is favourably disposed towards private interests in return for a payment of money commits a fundamental and obvious abuse.”

7.In respect of the large number of questions posed by the appellants in relation to Count 5, the respondent submitted that:

“ …the point of principle involved in the appeal may more accurately and concisely be stated in the following way:

Where a public official, in the course of or in relation to his public office, is or remains favourably disposed to private interests in return for a payment made secretly and received before he took office, does that favourable disposition in return for payment amount to misconduct for the purposes of the offence of misconduct in public office?”

8.Of the offence of conspiracy to offer an advantage to a public servant, Count 7, it was submitted on behalf of the respondent that the ingredients of the offence contrary to 4(1)(a) of the Prevention of Bribery Ordinance were well-known and that the judgment of this Court did not engage any issue arising from the ingredients of the offence.

A consideration of the submissions

Conspiracy to commit misconduct in public office

9.We are satisfied that, amongst the plethora of questions said to identify points of law of great and general importance arising from the judgment of this Court in relation to the offence of conspiracy to commit misconduct in public office, such a point of law is discernible and identifiable as so arising.  In our judgment, it is best articulated in the following question:

“ Is the offence of conspiracy to commit misconduct in public office made out on proof that the conspirators intended and agreed that, in return for a payment to be made to a person whom they knew was about to become Chief Secretary of the HKSAR, whilst in public office and as such the recipient would be and remain favourably disposed to the payer or at the direction of the payer?”

Conspiracy to offer an advantage to a public servant

10.In our judgment, this Court concluded that:[3]

“ The allegation by the prosecution that the monies paid to Rafael Hui had their provenance in and/or were reimbursed by Thomas Kwok and Raymond Kwok was not an element or ingredient of the offence alleged in Count 7. The agreement alleged was one to bribe Rafael Hui. The ingredients of the offence were those stipulated by the judge in his directions to the jury, to which reference was made earlier.”

11.It was noted earlier in the judgment, that the judge directed the jury that there were six “ingredients or elements” of the offence:[4]

“ (1) That there was an offer of an advantage to a public servant.

(2) That the offer was made without lawful authority or reasonable excuse.

(3) That the offer was an inducement to or reward for or otherwise on account of the performing or abstaining from performing, or having performed or having abstained from performing, any act.

(4) That that act was to be performed or was to be abstained from performing or had been performed or had been abstained from performing, (pause) that that act was to be performed or was to be abstained from performing or had been performed or had been abstained from performing in his capacity as a public servant.

(5) That the act, whilst not necessarily particularised in the particulars of the offence, was discernible, that is, identifiable, within his capacity as that public servant.

(6) That the defendants knew of these factors.”

12.The resolution of the arguments advanced before this Court in respect of Count 7, and the matters raised now on this application, did not and do not involve any points of law of great and general importance.  Rather, they involved and involve no more than the application of well-known principles to an evaluation of the facts.

Conclusion

13.In the result, we certify that a point of law of great and general importance, as stipulated in paragraph 9 above arises from our judgment.  We decline to certify that any other such points arise from that judgment.

Mr Joseph Tse, SC and Ms Maggie Wong, Counsel on fiat, of the Department of Justice, for the respondent

Mr Edwin Choy and Mr Joe Chan, instructed by Tang, Lai & Leung, for the 1^st appellant (D1)

Mr Gary Plowman, SC and Mr Benson Tsoi, instructed by Davis Polk & Wardwell, for the 2^nd appellant (D2)

Mr Selwyn Yu, SC and Mr Isaac Chan, instructed by Morley Chow Seto, for the 3^rd appellant (D4)

Mr Michael Blanchflower, SC, Mr Charles Chan and Mr Billy Kwan, instructed by Simon Ho & Co., for the 4^th appellant (D5)

[1] “STATEMENT OF OFFENCE

Conspiracy to commit misconduct in public office, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.”

[2] “ STATEMENT OF OFFENCE

Conspiracy to offer an advantage to a public servant, contrary to sections 4(1)(a) and 12 of the POBO and sections 159A and 159C of the Crimes Ordinance, Cap. 200.”

[3] Judgment, paragraph 344.

[4] Judgment, paragraph 335.