Secretary for Justice v. Tseng Pei Kun

FAMC No. 40 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NOS. 103 OF 2012 AND 183 OF 2014)

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BETWEEN

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

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Mr Justice Fok PJ:

1.This application for leave to appeal has been determined on the papers with the agreement of the parties.

2.The applicant was the co-defendant at trial of Chan Chi Wan Stephen, to whom the Appeal Committee granted leave to appeal in FAMC 4/2016[1] in relation to two questions of law of great and general importance (see below) and on the basis that it was arguable that, by reason of the judgments of the Court of Appeal, substantial and grave injustice had been done to him.

3.The respondent being prepared to concede the grant of leave to appeal to the applicant on the same two questions of law as certified in FAMC 4/2016, we grant leave to the applicant in relation to the following:

(1) In the context of a section 9 offence under the Prevention of Bribery Ordinance (Cap.201) (“POBO”): (i) what is the mens rea required of an agent to constitute him guilty of an offence under that section; and (ii) how should the element “in relation to the principal’s affairs or business” be interpreted having regard to the determination of the Privy Council in Commissioner of the ICAC v Ch’ng Poh [1997] HKLRD 652?

(2) In the context of a section 9 offence under POBO, what is the proper approach the Court should adopt in considering the defence of reasonable excuse?

4.As in the case of FAMC 4/2016, we also grant leave to this applicant to argue that, by reason of the judgments of the Court of Appeal,[2] substantial and grave injustice has been done to him.

5.The applicant’s appeal will be heard together with the appeal of Chan Chi Wan Stephen to be heard in FACC 11/2016 on 21 February 2017.

6.Any argument as to the scope of question (2) above should be addressed in the parties’ printed cases in the appeal and will be considered and determined by the full Court hearing the appeal.

Written Submissions by:

Ms Maggie Wong, Mr Derek C L Chan and Mr Samuel Sung, instructed by Angela Lau Law Office, for the Applicant

Mr Eric Kwok SC, on fiat, and Mr Felix Tam, SPP, of the Department of Justice, for the Respondent