HKSAR v. Luk Kin Peter Joseph and Another

FAMC Nos 68, 69 of 2015 & 15 of 2016

FAMC No 68 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 68 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

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BETWEEN

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FAMC No 69 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 69 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

____________________

BETWEEN

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FAMC No 15 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 15 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

____________________

BETWEEN

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DETERMINATION

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Chief Justice Ma:

1.Leave is given for all three applications, on the following questions: -

(1)   What is the meaning of “agent” for the purposes of s.9 of the Prevention of Bribery Ordinance, Cap. 201 (“the POBO”) and specifically whether a person who is under no legal, contractual or fiduciary obligation to act in relation to the affairs or business of another is that person’s “agent” for the purposes of s.9?

(2)   Whether the words “or other document” in s.9(3) of the POBO are to be construed ejusdem generis with the words which precede them and specifically whether board minutes are documents which come under this definition?

(3)   Whether or not the common law principle as espoused in R v McDonnell [1966] QB 233 and Attorney-General’s Reference (No. 2 of 1982) 1 QB 624, in the context of the offence of conspiracy to defraud or theft, namely, the principle that the mind and will of the sole director(s) are treated in law as the mind and will of the limited company, applies in the context of the statutory anti-corruption regime under the POBO and, in particular, to the offence of conspiracy for agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the POBO and sections 159A and 159C of the Crimes Ordinance, Cap. 200?

2.These appeals will be listed for hearing on 23 November 2016.

Mr Edwin Choy and Mr Joe Chan, instructed by V. Hau & Chow, for the 1^st Defendant (Applicant in FAMC 68/2015)

Mr Gerard McCoy SC leading Mr Albert N.B. Wong in FAMC 69/2015, and leading Ms Nisha Mohamed in FAMC 15/2016, instructed by Leung & Lau, for the 2^nd Defendant (Applicant in FAMC 69/2015)

Mr William Tam SC, DDPP, and Ms Samantha Chiu, SPP, of the Department of Justice, for the HKSAR (Applicant in FAMC 15/2016)