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

FAMC Nos. 8, 9, 10, 11 of 2016

FAMC No. 8 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

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FAMC No. 9 of 2016

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

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FAMC No. 10 of 2016

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

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FAMC No. 11 of 2016

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

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D E T E R M I N A T I O N

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The Appeal Committee :

1.At the conclusion of the hearing of these applications for leave to appeal, we granted leave to appeal to the applicants on one question of law (set out in paragraph 2 below) and, for the reasons which briefly follow, refused leave on the other grounds of application.

2.We granted leave to appeal to each of the applicants[1] in relation to the following question of law of great and general importance involved in their appeals against conviction on Count 5[2] of the amended indictment, namely:

“Whether in the case of a public officer, being or remaining favourably disposed to another person on account of pre-office payments, is sufficient to constitute the conduct element of the offence of misconduct in public office?”

3.We refused leave to appeal on the questions of law sought to be raised (by the respective applicants in FAMC 8/2016 and FAMC 10/2016[3]) in relation to their convictions on Count 7 of the amended indictment.[4] We are not satisfied that it is reasonably arguable that, in respect of a conspiracy to commit the offence under section 4(1) of POBO, the identity of the ultimate offeror of the advantage is an essential element of the offence.

4.We were not satisfied that it was shown to be reasonably arguable, in respect of their convictions on Count 7 of the amended indictment, that substantial and grave injustice had been done (to the respective applicants in FAMC 10/2016 and FAMC 11/2016[5]) and refused leave to appeal on this ground.  In the case of D4, we were not persuaded that the applicant’s case at trial would have been conducted differently or that the acquittal of D2 and his brother[6] was inconsistent with the basis on which he was convicted.  Although the prosecution had presented its case on the basis that D2 and D3 were the ultimate offerors of the advantage paid to D1, this was not an essential part of the case against D4.  The question was whether he, together with others, had agreed to offer an advantage to D1 as the object of the alleged conspiracy and the jury must have been satisfied of this.  And as far as D4’s defence was concerned (he gave evidence at trial), his position was that the money paid was pursuant to a legitimate business transaction[7] and the jury must have rejected this.

5.We were also not satisfied that it was shown to be reasonably arguable that substantial and grave injustice had been done to D1 by reason of the admission into evidence of the un-cautioned witness statement made by him to the ICAC and dated 13 January 2010 and refused leave to appeal on this ground.  The trial judge determined, as a matter of fact, that the statement had been voluntarily made.  That finding of fact was upheld by the Court of Appeal.  No basis has been demonstrated to undermine that finding.  Nor is there any basis for disturbing his finding that there was no requirement to administer a caution. In any event, even if a caution had been necessary, his refusal to exclude the statement was an exercise of discretion and, as confirmed by the Court of Appeal, there is no reason to think that the exercise of that discretion was in any way erroneous.

6.Finally, we were not satisfied it was reasonably arguable that substantial and grave injustice had been done to D5 (the applicant in FAMC 11/2016) on the ground that the safety of his conviction on Count 7 is affected by the alleged error of law relating to Count 5 (giving rise to the question on which we have granted leave to appeal) and refused leave to appeal on this ground.  The latter question is a pure question of law and does not impact on Count 7.  The nature of the charges in Count 5 and Count 7 are set out above; they were free-standing charges.

7.The appeals will be heard on 9 and 10 May 2017.

8.On Ms Montgomery QC’s application, we granted bail to D2 pending the hearing of his appeal, subject to the same conditions on which bail was granted to him pending trial (save for condition 2(c) which Mr Perry QC confirmed was no longer necessary).  Any application for bail pending appeal on the part of D4 or D5 should be made as and when circumstances make such applications actual rather than anticipatory.

Mr Edwin Choy and Mr Joe Chan, instructed by Tang, Lai & Leung, for the Applicant in FAMC 8/2016 (D1)

Ms Clare Montgomery QC, Mr Gary Plowman SC and Mr Benson Tsoi, instructed by Davis Polk & Wardwell, for the Applicant in FAMC 9/2016 (D2)

Mr Ian Winter QC, Mr Selwyn Yu SC and Mr Isaac Chan, instructed by Morley Chow Seto, for the Applicant in FAMC 10/2016 (D4)

Mr Michael Blanchflower SC, Mr Charles J. Chan and Mr Billy Kwan, instructed by Simon Ho & Co., for the Applicant in FAMC 11/2016 (D5)

Mr David Perry QC, Mr Joseph Tse SC and Ms Maggie Wong, on fiat for, the Department of Justice, for the Respondent