HKSAR v. Leung Kwok Hung
Read the full judgment text of DCCC 546/2016 on BabelCite. This District Court judgment was delivered on 31 July 2017.
1. The trial was conducted partly in English and partly in Chinese. However, as the case involves a number of legal issues the submissions for which were made in English, the parties have agreed that this verdict should be given in English.
Cited by 1 case · Cites 16 cases
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DCCC 546/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 546 OF 2016 ------------------------------
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-------------------------------------- REASONS FOR VERDICT -------------------------------------- INTRODUCTION 1.The trial was conducted partly in English and partly in Chinese. However, as the case involves a number of legal issues the submissions for which were made in English, the parties have agreed that this verdict should be given in English. 2.The defendant stands trial before this court for one charge of misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. The particulars of offence read as follows:
3.At this juncture, it is important to note the way in which the charge is pleaded: -
4.Having said that, there is no criticism, expressed or implied, from this court as to the way the prosecution has chosen to plead and conduct its case. Far from it, this court has obtained great assistance from both prosecuting and defence counsel. Furthermore, if I may say so, the prosecution team has conducted the trial and presented the available evidence with customary professionalism and fairness. However, since this case has attracted some publicity, it is desirable for this court to highlight the aforesaid salient features at the outset so that there would not be any misunderstanding as to the exact nature and scope of the offence charged. 5.There is another important point to note about the prosecution case. As a matter of evidence, the prosecution relies on the defendant’s knowledge of and participation in the LegCo debate of a motion on 22 January 2014. That motion was about editorial independence and autonomy in Hong Kong. During the motion debate the name of Mr Lai and “Apple Daily” (a newspaper over which Mr Lai had control) were mentioned in passing by Members other than the defendant.[2] The motion was not proposed by the defendant and there is nothing to suggest that the defendant’s speech or vote on the motion was in any way influenced by the alleged payment from Mr Lai. Moreover, the prosecution is at pains to emphasize that there is no challenge to the propriety or otherwise of the defendant’s speech or vote on that occasion. 6.On the other hand, the prosecution says that the motion must have at least reminded the defendant of the need to register with LegCo his payment of $250,000 from Mr Lai and the defendant’s failure to do just that even after the motion adds to the seriousness of the non-disclosure. Other factors which the prosecution says also contribute to the seriousness of the alleged misconduct include the importance of the office of a LegCo Member and the responsibility of the officer-holder, the size of the alleged payment as well as the fact that the defendant had failed to make disclosure in spite of the numerous opportunities available for him to do so over the 4-year period between the date of payment (22 May 2012) and the date of his arrest (23 June 2016). 7.As can be seen from the way the trial was conducted, the major factual issue for this court to decide is whether the $250,000 from Mr Lai was (a) a donation (as the prosecution says) to the defendant personally; or (b) a donation (as the defence says) to the League of Social Democrats (“LSD”) of which the defendant was the Chairman. However, before I evaluate the evidence and deal with the factual issues, it is necessary for me to give reasons for my decision on two pre-trial issues raised by the defence which are fundamental to the trial. PRE-TRIAL ISSUES 8.Before the trial proper, on 23 May 2017 counsel for the defendant, Mr Martin Lee, SC (and with him Mr Hector Pun, SC, Mr Carter Chim and Mr Anson Wong) raised before this court two preliminary legal issues, namely: -
9.The defence submission as regards the First Issue was based on the Common Law doctrine of “parliamentary privilege” and there were two limbs to it, namely “freedom of speech” in and “exclusive cognisance” of LegCo. As regards the Second Issue, it was submitted that the documents in dispute were covered by “parliamentary privilege” as well as ss 3 & 4 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“LCPPO”) so that they were not admissible as evidence in court. RULING ON PRE-TRIAL ISSUES 10.Having considered submissions from the prosecution and the defence, both written and oral, on 31 May 2017 this court ruled that: -
11.I said that the reasons for the above ruling would be given in due course. This, I now do. REASONS FOR THE RULING ON PRE-TRIAL ISSUES Freedom of speech and debate in LegCo 12.The following articles of the Basic Law are pertinent to the pre-trial issues raised by the defence:
13.Although Article 77 refers only to “meetings of the Council”, it was held by Andrew Cheung J (as he then was ) in Cheng Kar Shun and Anor v the Honourable Li Fung Ying & Ors[3] that, reading in its context, the article clearly intended to also cover meetings of its committees. His lordship said,
14.Apart from the Basic Law, the following provisions in LCPPO are also pertinent:
15.There can be no doubt that the protection provided by ss 3 & 4 of LCPPO is, in part at least, inspired by Article 9 of the Bill of Rights 1688 of the UK[4] which says:
16.In Pepper v Hart,[5] Lord Browne-Wilkinson commented on the object of article 9 of the Bill of Rights and said as follows:
17.I am of the view that, based on the fact that ss 3 & 4 of LCPPO owe their origin to article 9 of the UK Bill of Rights as well as the similarities both in purpose and in terms between the aforesaid provisions in the Basic Law and LCPPO (collectively referred to as “the Hong Kong provisions”) on the one hand and article 9 of the Bill of Rights 1688 on the other, UK case authorities on article 9 could be of assistance in the interpretation of the Hong Kong provisions. 18.On the other hand, it is important to note that the UK case authorities on article 9 of the Bill of Rights 1688 have to be adapted to the situation in Hong Kong with caution because of the following reasons: -
19.Therefore, in my humble view whilst ss 3 & 4 of LCPPO are modelled on article 9 of the Bill of Rights, the protection provided under the two provisions may not be the same as that provided under article 9 of the Bill of Rights in that the formers appears to be more restrictive in scope than their UK counterpart, with the result that UK case authorities on the absolute bar against any “questioning” of “parliamentary proceedings” may not be not directly applicable to Hong Kong: cf the judgement of Au J in Chief Executive of the HKSAR v President of the Legislative Council.[7] Besides, in my view in determining the scope of the protection provided by the Hong Kong provisions, the courts should be guided by the non-intervention principle as pronounced by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 1) [8]and the test of “necessity” which was adopted in that case.[9] 20.Bearing the above caveat in mind, I now turn to consider the meaning of “proceedings” in s 3 of LCPPO. The first thing to note is that the word has not been defined in LCPPO or the Bill of Rights 1688. However, the word is used in LCPPO in the following ways:
By a plain and naturally reading of the above, the word “proceedings” in LCPPO whenever it appears clearly refers to those occasions where Members meet to conduct the business of LegCo, whether in plenary sessions or in committees. 21.Moreover, I find the following passage from Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament[10]instructive:
22.According to the ways in which the word “proceedings” is used in LCPPO, applying the above passage from Erskine May’s insofar as it is relevant to Hong Kong and bearing in mind that it is the freedom of speech and debate in LegCo that ss 3 & 4 of LCPPO is intended to protect, I am of the view that the phrase “proceedings before a committee” in s 3 of LCPPO refers to some formal action, including meetings, decision-makings, hearings or inquiries, of LegCo (or its committees[11]) acting in a collective capacity during the process of which speaking and debating forms an intrinsic part. 23.I now turn to consider the scope of the protection collectively provided by the Hong Kong provisions. In this regard, as aforesaid I am guided by the non-intervention principle and the test of “necessity”. Besides, I have also derived some assistance from the judgment of the House of Lords in R v Chaytor[12] and the speech of Lord Phillips (who gave the leading judgment) in particular. 24.R v Chaytor was a case about charges of false accounting which were laid against certain members of Parliament basing on claims they had submitted for allowances and expenses. A major issue in that case was whether those claims for allowances and expenses formed part of the “parliamentary proceedings” and therefore were subject to the absolute privilege provided by article 9. Lord Phillips, after a critical review of the relevant case authorities,[13] had the following to say about article 9:
25.After a most detailed discussion, his lordship came to the conclusion that precedent,[14] the views of Parliament[15] and policy[16] all pointed in the same direction that submitting claims for allowances and expenses does not form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making. It was further held that the submission of claims was an activity which was an incident of the administration of Parliament; it was not part of the proceedings in Parliament. 26.In my humble view the following principles, which I have derived from R v Chaytor, are also applicable to the Hong Kong provisions: -
27.It is well-established that the protection of article 9 is absolute and cannot be waived by Parliament: see R v Chaytor.[17] In this regard, in view of the mandatory terms in which ss3 & 4 of LCPPO are expressed, it would appear that the protection provided by them is also absolute in the sense that the protection cannot be waived even by LegCo. However, there are no direct case authorities on this point. For the purpose of the present case, it is not necessary for me to decide on this issue. I am prepared to work on the basis that the protection provided by ss 3 & 4 of LCPPO is absolute in that it cannot be waived. However, as can be seen from the discussion below, nothing really turns on this. Parliamentary privilege 28.“Parliamentary privilege” is a Common Law principle which predates and is wider in scope than the Bill of Rights 1688. Thus, in Prebble v Television New Zealand Ltd[18] at 413, [1995] 1 AC 321 at 332, Lord Browne-Wilkinson, giving the advice of the Judicial Committee of the Privy Council, said:[19]
29.In Hamilton v Al Fayed,[20] Lord Browne-Wilkinson, this time giving the judgment of the House of Lords, said,[21]
30.The UK Government has given a succinct explanation of “parliamentary privilege”, in the Green Paper: Parliamentary Privilege (“the Green Paper”), [22]as follows:
31.The origin/justification for parliamentary privilege has been variously stated, including historical development, functional necessity, the constitutional doctrine of separation of powers and (in the United Kingdom) the sovereignty of Parliament. However, in Leung Kwok Hung v President of the Legislative Council (No 1), supra, it is authoritatively held by the Court of Final Appeal, insofar as Hong Kong is concerned, that:[23]
In other words, the principle of non-intervention is only a self-restraint imposed by the courts in the exercise of jurisdiction rather than a matter which goes to jurisdiction: see Chief Executive of HKSAR v President of the Legislative Council (CA).[24] 32.The Court of Final Appeal went on to say:[25]
33.The Court of Final Appeal also stressed that the principle of non-intervention is necessarily subject to constitutional requirements.[26] Thus, it was held that the courts would exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo or its President. The test is one of necessity, namely the privilege claimed is one without which the dignity and efficiency of the legislature cannot be upheld.[27] The courts would not, however, exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities.[28] 34.Speaking in the same vein, Cheung CJHC, affirming the decision of Au J in Chief Executive of HKSAR v President of the Legislative Council (CA),[29] highlighted the difference between the UK position and the Hong Kong position as follows:
35.Ms Lai, SC (and with her, Mr Johnathan Lin) for the prosecution submits that “parliamentary privilege” enjoyed by LegCo and its Members are “fully set out” in the Basic Law and LCPPO. If by this she means that the “wider principle” of Common Law referred to by Lord Phillips in R v Chaytor has been wholly replaced and therefore no longer applicable to Hong Kong, then with respect I am unable to agree. First, even on the basis that LCPPO is a codifying statute[30] so that the starting point must be the language of its provisions, it does not automatically follow that the common law is no longer relevant: cf Sky Heart Ltd v Lee Hysan Co Ltd.[31] Secondly, neither Leung Kwok Hung v President of the Legislative Council (No 1) nor the subsequent local case authorities following it has the effect that Ms Lai seems to be contending for. To the contrary, it is expressly recognized by the Court of Appeal in Chief Executive of HKSAR v President of the Legislative Council (CA) that the principle of non-intervention “is an established principle of common law which is of seminal importance and high constitutional significance.”[32] 36.Bearing in mind the aforesaid, for the present purpose I consider that the following which was said in R v Chaytor is also pertinent to the common law principle of “parliamentary privilege” as applicable in Hong Kong based on the non-intervention principle: -
37.The above principles, I trust, are in harmony with the reservations expressed in the local case authorities as to the applicability of UK case law on “exclusive cognizance” in Hong Kong. The First Issue 38.Mr Lee submits that: -
As regards (a): exclusive authority of LegCo 39.Mr Lee places heavy reliance on the views of the Joint Committee on Parliamentary Privilege of the House of Lords and the House of Commons (“the Joint Committee”) expressed in its 2013-2014 Report. The Joint Committee opines, somewhat categorically, that the investigation and adjudication upon an alleged wrongful failure to register an interest by a member of Parliament ought to be a matter for Parliament alone. Thus, the Joint Committee recommends that:
40.It is pertinent to note that the above opinion of the Joint Committee is a response to the first instance decision of Popplewell J in Rost v Edward[38] that the Register of Members’ Interests was not a proceeding in Parliament. That was a case of defamation in which both the plaintiff (a member of Parliament) and the defendants (the journalist, the editor and the publisher of an article) wanted to use the Register of Members” Interests for their respective case in court.[39] Popplewell J’s approach to the issue was that the Register of Members’ Interest fell within a “grey area” as to whether it was Parliament or the courts which should have exclusive jurisdiction. His lordship said that in such a case:
The learned judge concluded, in the absence of clear case authorities or provisions covering the matter, that the Register of Members’ Interest did not fall within the definition of “proceedings in Parliament”. Accordingly, his lordship ruled that it was open to the plaintiff to give the evidence that he sought to do in relation to the registration of members’ interest and it was open to the defendants to challenge that evidence.[40] 41.Rost v Edward has been subject to serious criticism. However, since the action was subsequently settled between the parties, there was no appeal from that judgment. Nevertheless, the Joint Committee notes that the correctness of Rost v Edwards was doubted by the Privy Council in Prebble v Television New Zealand Ltd[41] in 1995. The Joint Committee also notes that in the following year the effect of Rost v Edwards was reversed by the passing of the Defamation Act 1996 which specifically lists any communication with “any person having functions in connection with the registration of members’ interests’ as a proceeding in Parliament. 42.As regards Mr Lee’s reliance on the opinion of the Joint Committee, I have the following observations:
43.Mr Lee further relies on the fact that LegCo has its own Rules of Procedure (“ROP”),[46] made pursuant to article 75(2) of the Basic Law, to regulate matters about disclosure of interests by its members and has set up a standing committee, the Committee on Members’ Interests (“CMI”), to oversee those matters. This, Mr Lee, submits, shows that declaration of interests is an internal matter of LegCo which is “absolute and exclusive” and “cannot be questioned in law”. 44.With respect, I am unable to accept the above submission of Mr Lee. First, the fact that LegCo has its own internal rules to regulate disclosure of interests by its members does not necessarily lead to the conclusion that the matter is “absolutely and exclusively” within the province of LegCo. For example, s 45(2) of the ROP says:
At s 87 of the ROP, it says:
I do not considered that the above provisions mean that the courts could not deal with a person or a Member who is accused of disorderly conduct committed within LegCo’s precincts: see for example, HKSAR v Leung Hiu Yeung & Ors (transliteration).[47] As noted above, there are matters which LegCo and the courts can have different and overlapping jurisdictions. 45.Secondly, I am unable to agree with the broad proposition that a misconduct by a Member relating to disclosure of interest, whether trifle or serious, would inevitably be an internal matter of LegCo so that the court must abstain from dealing with it. In this regard, I note that the charge of misconduct in public office would not be made out unless the misconduct in question was “wilful”, “without reasonable excuse or justification” and “serious”: see Sin Kin Wah v HKSAR.[48] Applying to the present case, the common law offence would bite only those cases of non-disclosure of interest by members which are so serious as to warrant criminal sanction. The seriousness of an alleged misconduct would very often depend on its legal and factual context: see the recent comments of the Court of Final Appeal in Chan Tak Ming v HKSAR.[49] 46.Thirdly, there are strong policy reasons as to why LegCo should not be dealing with cases of serious criminal conduct:
47.Fourthly, the corollary of (iii) above is that giving LegCo the exclusive authority to deal with the misconduct of a Member so serious as to warrant the common law offence would not be necessary for upholding its dignity and efficiency. Thus, the necessity test adopted in Leung Kwok Hung v President of the Legislative Council (No 1) would not be met. 48.Fifthly, even assuming that non-disclosure in question falls within the common law parliamentary privilege of LegCo, there is evidence before me and I am so satisfied that LegCo has waived that privilege in the present case. This is the inference I draw from the special leave given by LegCo for its officers not only to give evidence at the trial and but also to produce the Register and the other documents in court. See the note dated 28 November 2016 issued by Clerk to Legislative Council to its Members for “Council Meeting on 30 November 2016” and the reply letter dated by 2 December 2016 by the Secretary General of the Legislative Council Secretariat to the Prosecution. If LegCo had intended to assert exclusive authority on the subject matter of the charge, it would not have granted the special leave. As regards (b): Chilling effect 49.Mr Lee places reliance on a paper presented by the UK Government to Parliament on “Parliamentary Privilege” in April 2012 (“the Green Paper”) where it says:
50.However, it needs to be pointed out that it is not the view stated in the Green Paper that there should be blanket protection given to parliamentarians for what they would say in the proceedings of Parliament. Rather, the Green Paper proposes that, in spite of any possible “chilling effect”, parliamentary privilege should be disapplied in respect of certain criminal offences. For example, the Green Paper notes, in respect of bribery and corruption:
In respect the offences of making a false or misleading statement, conspiracy to defraud and blackmail, the Green Paper says,
51.For the sake of completeness, I need to point out that the Green Papers advises not to disapply parliamentary privilege in respect of the offence of misconduct in public office. However, that is because of the perceived wide and uncertain scope of the offence. The Green Papers advises that the offence could be reconsidered after it is codified. 52.In the present case, I do not agree that the prosecution of a LegCo Member for “wilful” and “serious” non-disclosure of interest which is “without reasonable excuse or justification” as alleged in the present case would have the chilling effect as Mr Lee suggests. As discussed above, the common law offence does not bite cases of misconduct which might have been inadvertently or negligently committed. For the purpose of the common law offence, “mere inadvertence is not enough”: see Shum Kwok Sher v HKSAR.[55] Moreover, the basis of the prosecution in the present case is not about what the defendant had said in the meetings of LegCo. It is about the allegation that the defendant had intentionally failed to make disclosure when he was fully aware of his duty to do so. Therefore, members who have just been careless should have no reason to be anxious of the possibility of being prosecuted for the common law offence. 53.Based on the above, in my view the present prosecution would not have a “chilling effect” as contended on a Member’s freedom of speech and debate in LegCo. 54.As regards Mr Lee’s reliance on HKSAR v Chow Nok Hang[56] and his submission that freedom of speech, “like all fundamental rights and freedoms, must be given a generous interpretation … Any law which purports to restrict such right must be narrowly interpreted.” With respect, this submission loses sight of the proper balance which needs to be struck between the protection of freedom of speech and debate in the legislature on the one hand and the equality before the law[57] on the other. I note also that HKSAR v Chow Nok Hang is not a case on parliamentary privilege but on freedom of demonstration. Moreover, what Chan PJ said in that case was that:
Therefore, the passage quoted above is in fact in harmony with what was said in Leung Kwok Hung v President of the Legislative Council (No 1) that the non-intervention principle is subject to constitutional constraint. Conclusion on the First Issue 55.For the reasons given above, I reject the defence argument on the First Issue. I rule that the present case is not covered by parliamentary privilege and does not contravene any of the protection provided by the Hong Kong provisions. I rule that this court has jurisdiction to try this case. The Second Issue 56.What is in dispute under this head is the admissibility of:
57.As noted above, special leave has been given by LegCo under s7 of LCPPO for its officers to give evidence at this trial and to produce the documents in question. However, Mr Lee submits that the fact that special leave has been given does not mean that the evidence is therefore admissible. This, Mr Lee submits, is because:
As regards (i): Proceedings 58.With respect I am unable to accept that the Register in question forms part of the “proceedings” of LegCo. As discussed above, “proceedings” refer to the formal action of LegCo in its collective capacity whether in its plenary sessions or its committees. The filing of a declaration by a Member, however, is his or her individual act. That the filing of a declaration is a “time-saving” device is, in my view, besides the point[58] and not in itself sufficient to turn a Member individual act into a part of the proceedings of LegCo. Therefore, it follows that the Register, which is just a compilation of all the declarations filed by Members, also does not form part of the proceedings of LegCo. 59.As aforesaid, I am of the view that the protection of “freedom of speech and debate” is capable of being extended to cover actions outside LegCo meetings and its committees, if those acts bear a sufficiently close connection with the core and essential business of LegCo so that if they are not covered there would be an adverse impact on the freedom of speech and debated protected by the Hong Kong provisions. However, in the present case I do not consider that the Register has such a close connection. Besides, I do not think that there would be any adverse effect on the freedom of speech or debate in LegCo if the Register is not precluded from being produced in court as evidence. 60.I draw some comfort by the fact that my aforesaid conclusion about the nature of the Register is also supported by the correspondence between the Prosecution and LegCo. In the letter from LegCo to the Prosecution dated 29 September 2016, it was said:
61.It can be seen, therefore, that LegCo was making a distinction between two categories of documents:
62.Subsequent to the letter from LegCo, on 24 November 2016 the Prosecution wrote to LegCo giving reasons for their application for special leave in respect of just category (b) only. The Prosecution did not continue to seek special leave for category (a). In the event, special leave was granted by LegCo in respect of category (b). 63.The only reasonable inference which I draw from the above is that LegCo was and is of the view that special leave is not necessary in respect of category (a). This view of LegCo is one which I am entitled to take into account. However, for avoidance of doubt I should say that even without the support of the aforesaid inference, by basing on the authorities I have quoted above my conclusion would have been the same. 64.Furthermore, even if I were wrong in my conclusion that the Register does not form part of the “proceedings” of LegCo, it is clearly not the law that “parliamentary proceedings” cannot be adduced as evidence in court proceedings no matter what the intended purpose is. This lead me to the following issue which relates to both the Register and the other “Disputed Evidence”. As regards (ii): ss3 & 4, LCPPO 65.The prosecution in its letter dated 24 November 2016 to LegCo seeking special leave stated its position as follows:
66.From the above, what the Prosecution says that it is seeking to do is to use the evidence in question just to establish what had or had not taken place as a historical fact, ie, what was in fact said or not said in LegCo, by a particular person and on a particular day. That, in my view, does not involve any “questioning” of the propriety or otherwise of the proceedings or what the defendant had said in those proceedings, even if one were to interpret “questioning” in a broad sense. It is clear to me that LegCo was and is of the view that the prosecution’s intended usage of the evidence as stated in the aforesaid letter would be consistent with the principle of parliamentary privilege.[59] Furthermore, what the defendant had said in LegCo is not the subject matter of the charge and is not relied upon by the Prosecution as the foundation of its case. Therefore, in my view the protection provided by article 77 of the Basic Law and s 4 of LCPPO is simply not engaged. I note also that similar usage of records of parliamentary proceedings would be permissible even in jurisdictions where there is in existence the more extensive protection provided by article 9 of the Bill of Rights. Thus, in Prebble v Television New Zealand Lord Browne-Wilkinson said:
See also Church of Scientology v Johnson-Smith;[61]and Toussaint v Attorney General of St Vincent and the Grenadines.[62] 67.Similarly, I do not accept that the prosecution’s stated intended usage of the evidence in question would have any adverse impact on a Member’s freedom of speech and debate protected by the Hong Kong provisions. Conclusion on the Second Issue 68.Based on the above, I reject the defence submissions on the Second Issue. I rule that the Register, the evidence that the five LegCo officers are expected to give and the Disputed Evidence are admissible for the limited purpose of proving what was done and said in LegCo meetings or its proceedings as a matter of history. As enjoined by Lord Browne-Wilkinson in Prebble v Television New Zealand, it is for me as the trial judge to ensure that the proof of the historical facts is not used to suggest that the defendant’s words were improperly spoken or were to achieve an improper purpose. 69.Based on all the above, I reject the defence submissions on the Pre-trial Issues and I rule in favour of the prosecution. RELEVANT LEGAL PRINCIPLES General 70.I bear in mind that the burden is on the prosecution to prove the charge beyond reasonable doubt. The defendant is not required to prove anything. In the present case, the defendant chose to give evidence. This is his right and no adverse inference would be drawn from this against him: Lee Fuk Hing v HKSAR.[63] 71.Insofar as the prosecution relies on any inferences to support the charge, such inferences are not to be drawn unless they are the only reasonable interferences from the direct facts proved: Kwan Ping Bong & Another v R.[64] Misconduct in public office 72.The elements of the common law office of misconduct in public office are stated by Sir Anthony Mason NPJ in Sin Kam Wah & Another v HKSAR,[65] namely the offence is committed when:-
The above elements are re-affirmed in the recent case of HKSAR v Hui Rafael Junior, supra. 73.The essence of the offence is an abuse of office. So in determining whether or not the person was a “public officer”, the correct approach was to examine what, if any, powers, discretions or duties had been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involved an abuse of those powers, such abuse ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, to oppression: see HKSAR v Wong Lin Kay.[66] 74.As regards the element of “seriousness”, it is explained by Sir Anthony Mason NPJ in Shum Kwok Sher v HKSAR[67] that the seriousness of the misconduct is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they served and the nature and extent of the departure from those responsibilities. There is no doubt a borderland in which the common law offence and disciplinary offences overlap. The offence may be committed for no discernible or provable motive: Chan Tak Ming v HKSAR, supra. However, it is necessary to note that the factors mentioned in Shum Kwok Sher are not meant to be exhaustive. As pointed out by Chan ACJ in HKSAR v Ho Hung Kwan Michael,[68] the consequences of the misconduct are also relevant when considering whether the misconduct is serious enough to merit criminal sanction. It would be wrong simply to conclude that if the misconduct in question was not trivial, then it must be serious enough to merit criminal sanction. The possible damage to the integrity of the system and the effect on public confidence in the system are clearly relevant matters for consideration in deciding whether the conduct of a public officer is so serious as to amount to the common law offence. Those matters must be considered in context and together with other relevant factors. His lordship also quoted Re A-G’s Reference (No 3 of 2003)[69] with approval where it was said that the motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct. Similarly, Yeung JA (as he then was) in HKSAR v Wong Kwong Shun Paul said, [70]
PROSECUTION EVIDENCE 75.The bulk of the prosecution evidence is adduced by way of admitted facts.[71] As a result, there were just a few witnesses who had given live evidence in this case, including the following officers from LegCo Secretariat:-
I note that there was no challenge by the defence to the credibility of the above witnesses. On the other hand, the defence sought to establish their own case by questions put in cross-examination to PW1 who, Mr Lee said, was the important witness in this case because of his experience in matters relating to ROP and declaration of interests by Members. 76.The statements of the following prosecution witnesses are read into the evidence by agreement under s65B of the Criminal Procedure Ordinance, Cap 221:
Apart from PW1, the role of the other prosecution witnesses from LegCo is mainly to produce documents. The evidence of the two bank officers from HSBC is about an incident in which the defendant had tried to pay a cashier order (issued in his favour) into the bank account of LSD. Basic facts 77.Based on the admitted or unchallenged evidence before the court, the following facts are in not dispute: -
“Accepting on behalf” (代收) 78.There is one proposition raised by the evidence of PW1 which appears to be common ground, that is to say that if a Member received a donation which was in fact intended for someone else rather than the Member personally, in other words if the Member only received the donation on behalf of a third person (“代收”), then Rule 83 of ROP would not be engaged and there would be not a duty to make disclosure of that donation pursuant to that rule. PW1 in his evidence cited a precedent concerning LegCo Member Alan Leong to that effect. In that incident, it was accepted that Mr Leong had received a donation on behalf of Alliance for True Democracy and he had not made any disclosure of that donation as a Member. The CMI looked into the matter and resolved that the non-disclosure was not a breach. I say that the proposition appears to be common ground firstly because the prosecution has not asked the court to reject the proposition whilst the defence relies on the proposition in the defendant’s defence. The prosecution’s attack on that defence is on the factual level, submitting that the defence evidence in this aspect should be rejected. Secondly, I note that the prosecution has laid no charge and raised no question in respect of the 2nd Payment (HK$50,000) from Mr Lai through Simon, even though the defendant was named as the payee on the payment cheque,[87] there being evidence that the defendant had subsequently withdrawn the money and paid it into the bank account of LSD. Thirdly, apart from PW1’s evidence, I also take into account the common stance of the parties. Lastly, as a matter of construction of the relevant rules of the ROP, I agree that if a Member receives a donation on someone else’s behalf, then he is not accepting the donation “as a Member” and in those circumstances Rule 83 would not be applicable. I note that there may an interesting legal issue which has not been addressed by counsel, namely “who is to decide whether an interest was required to be disclosed pursuant to Rule 83 of ROP, is it a matter for the court or is it within the exclusive cognizance of LegCo?” However, since my view on the proposition is the same as that of CMI, the point does not need to be resolved for the purpose of this trial. Admissibility of LegCo documents and Media Reports 79.At the end of the prosecution case, Mr Lee invited the court to re-consider the admissibility of the following provisional exhibits:
80.Having considered counsel submissions, I ruled against the defence contention that the purposes of the prosecution in adducing the aforesaid documents went beyond the terms of this court’s ruling given at the pre-trial stage. In particular:
81.In the event, it is my ruling that all the provisional exhibits objected to by the defence are relevant and that their intended usage by the prosecution does not go beyond the terms of this court’s ruling on the Pre-trial Issues. Besides, I can see no valid reasons for them to be excluded. Therefore, I admit all of them as exhibits. NO CASE SUBMISSIONS The submissions 82.Mr Lee made a half-way submission after the prosecution had closed its case. The sole ground of the submission was that even assuming that the prosecution would be able to show that the defendant had not registered the 1st Payment pursuant to Rule 83 of ROP, he could have done it orally at any of the LegCo meetings under Rule 83A of ROP during the charge period and there is no evidence that he had failed to just do that, the prosecution having failed to adduce records of all of the LegCo meetings during that period. 83.In reply, Ms Lai for the prosecution submitted that Rule 83 and Rule 83A imposed different and separate duties. Furthermore, the defendant should have known by reading the paper for the motion debate on 22 January 2014 that the matter about Next Media was to be raised. That should have alerted him to register his interest pursuant to Rule 83 and also to make an oral declaration at the meeting pursuant to Rule 83A. However, the defendant failed to do either of those. The ruling 84.Having heard counsel submissions, I ruled that the defendant has a case to answer. I said that reasons would be given if and when necessary. This, I now do. The applicable legal principles 85.The approach a judge must take when considering a no case submission is set out in R v Galbraith,[88] where Lord Lane CJ said,[89]
86.As to how a trial judge should approach a prosecution’s case based on inferences when facing with a no-case submission, in my view the following said by Kempster JA in Attorney General v Li Fook Shiu Ronald,[90] which is about an application to discharge made under s 22 of the Complex Commercial Crimes Ordinance, Cap 394, is also applicable:-
87.In Director of Public Prosecutions v Varlack,[91] the prosecution appealed the determination of the Eastern Caribbean Court of Appeal quashing the conviction of the defendant of murder on the basis that the judge had erred in rejecting a submission of ‘no case to answer’ at the close of the prosecution case. The prosecution case against the respondent was circumstantial, being based largely on the evidence of telephone calls made between the defendants from which the prosecution sought to draw the inference that she knew of and agreed to a plan to kill the deceased. In the advice of the Privy Council delivered by Lord Carswell, the authorities relevant to the issue of the proper approach to be taken to a submission on no case to answer were addressed. Having said that the “canonical statement of law” was to be found in the judgment of Lord Lane CJ in R v Galbraith Lord Carswell cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal[92] as being an accurate statement of the law:-
88.Lord Carswell went on to cite with approval a passage from the judgment of the Court of Appeal of England and Wales, Criminal Division delivered by Moses LJ in R v Jabber:[93] -
In the end, Lord Carswell said that when one applies the above principle, it follows that the fact that another view, consistent with innocence, could possibly be held does not mean that the case should be withdrawn from the jury. See also the recent case of the Court of Appeal in Secretary for Justice v Ng Siu Lun[94]where DPP v Varlack was applied in Hong Kong. Applying to the present case 89.In the present case, there is no challenge by the defence against the credibility or reliability of the prosecution witnesses. Rather, the half-way submission is based on an alleged lacuna in the prosecution evidence. 90.In order to assess Mr Lee’s submission, it would be necessary to consider Rules 83 and 83A of ROP. I note that the relevant ROP has been amended over the years, but the amendments do not bear on the present case:
91.With respect, the sole ground for Mr Lee’s halfway submission is based on a false premise. It can readily be seen that Rule 83 and Rule 83A are intended to serve very different purposes so that the fulfillment of one does not mean the fulfillment of the other: -
92.That Rule 83 and Rule 83A impose separate and different duties on a Member is also made clear in the “Guidelines on Registration of Interests” (“個人利益登記指引”) issued by the LegCo Secretariat copies of which were distributed to all Members at the beginning of each term.[96] At item III(1) of the document it is said that the Guidelines in relation to registration of personal interests should be considered as the “minimum reasonable standard”. (“在登記個人利益方面, 此等指引應被視為最低的合理規定”). At Item III(2), it is said that Members have a duty to provide the information required and are responsible to the other Members and the public for the information concerning him or her as contained in the Register. Then at Item III(3), it is stated that the registration of interests is additional to and in no way a replacement of, the requirement on Members to disclose pecuniary interests under Rule 83A. 93.Lastly, PW1 also confirmed in his evidence that the duties under Rule 83 and Rule 83A are separate and different duties. 94.Turning to the elements of the offence, there is no dispute that a LegCo Member is a holder of a public office. Secondly, pursuant to Rule 83 of ROP the defendant as a LegCo Member had the duty, to make disclosure of all his “registrable interests”. As such, in my view there is a strong argument that the performance of that duty would be one in the course of or in relation to the defendant’s public office. Thirdly, in the light of the agreed bank evidence there can be little dispute that the defendant had received a payment of HK$250,000 from Mr Lai through Simon. Fourthly, at this stage and in the absence of evidence to the contrary the payment is prima facie an interest which had to be registered pursuant to Rule 83 of ROP. On the face of P28 and P29, however, the defendant had not registered that payment, resulting in a breach of his duty to make the relevant disclosure. Of course, I should add here that whether the payment was in fact required to be registered is a matter to be decided after consideration of all the relevant evidence including the evidence, if any, from the defence. Fifthly, there is also evidence that the defendant was fully aware of his duty under Rule 83 of ROP and therefore an inference would be open to a reasonable jury that the failure on the part of the defendant, if any, to disclose the payment in question was wilful and intentional. Sixthly, it has not been suggested that the alleged failure to disclose, if committed, had any reasonable excuse or justification and none has been raised at this stage. Lastly, as regards “seriousness” of the alleged breach/misconduct, taking into account the constitutional status and responsibilities of the office of a LegCo Member, the importance of the public trust reposed in legislators and the right of the public to know whether the speech or deeds of their representatives in LegCo are motivated by other interests and the circumstances of the alleged misconduct in the present case, it would be open to a reasonable jury to find that the misconduct, if established, was a serious one. For the above reasons, I rule that the defendant has a case to answer. Needless to say, whether the defendant is guilty of the offence charged is a matter to be decided in due course after taking into account all the evidence. Pre-trial issues revisited 95.For the sake of completeness, I have considered whether the evidence of PW1 would have any impact of my ruling on the pre-trial issues. This is because on a cursory reading PW1 seems to have suggested that a breach of Rule 83 was just an internal affair of LegCo which would not attract criminal liability, the reason being separation of powers. PW1 said the following in cross-examination:
96.However, PW1 later clarified that what he meant was that based on his understanding a “mere breach” of Rule 83 would not give rise to criminal liability. PW1 supplemented the following in cross-examination:
97.Upon being asked by the court, PW1 clarified further and said:
98.What I understand PW1 meant is that he was of the view that a “mere failure” to register interests by a Member would not amount to a criminal offence. However, it may be that the breach would form a component of a criminal offence and in which case whether or not a Member would have committed a criminal offence was not a matter for the LegCo to decide. 99.Having considered PW1’s evidence, I do not consider that it would have any adverse effects on my decision on the Pre-trial Issues. Therefore, I maintain my decision on those issues. DEFENCE EVIDENCE 100.There is only one witness from the defence, who was Mr Ng Man Yuen, the current Chairman of LSD. He was its Internal Vice-chairman between 2010 and 2012 and External Vice-chairman between 2012 and 2016. The main points of his evidence consist of the following:
CONSIDERATION OF THE EVIDENCE 101.As the tribunal of fact, based on the bank evidence before this court I am sure so that I find that Mr Lai had the intention to make donations (through Simon) to four political parties in Hong Kong, namely DP, CP, LP and LSD, in the total amount of HK$9.5 million. The important issue to be decided, then, is whether I can also be satisfied to the requisite standard that there had been a change of purpose regarding the HK$ 1 million to LSD so that HK$250,000 of which later became a donation to the defendant personally. 102.I am fully alive that the burden of proof is on the prosecution. However, purely for the sake of convenience I would first consider the evidence of Mr Ng. I bear in mind all the criticisms that Ms Lai has levelled, in her oral and written closing submissions, at the various inadequacies of Mr Ng’s evidence. I note in particular that Mr Ng’s evidence is very vague as to the time and location of his discussion with the defendant and other core members of LSD about the use of the HK$1 million donation from Mr Lai in early 2012. I note that it is Mr Ng’s evidence that the HK$250,000 mentioned in the charge had not been used in the defendant’s election campaign in 2012. His evidence was to the effect that the money had been used generally for the work of LSD in NTE. Nevertheless, Mr Ng had not produced a single document or any accounts from LSD to support his version in this regard. On the other hand, there was a minute of meeting of the Executive Committee LSD[98] recording just a donation of HK$500,000 in 2012 without any mention of the other two sums each of HK$250,000 to the KE Branch or NTE Branch respectively. Furthermore, Mr Ng’s evidence, if true, would suggest that even the Treasurer of LSD had not known about the existence of the two sums. As regards the role of Ms Tong, there is independent evidence showing that the defendant had claimed reimbursement from LegCo for her salary as his accountant in relation to his office there.[99] On the other hand, there is no document to show that Ms Tong had worked for or helped the defendant in the NTE Branch of LSD. Last but not least, I note that Mr Lai had through Simon made direct donations to LSD so that if Mr Lai wanted to make donations to LSD, there is no necessity for Mr Lai to do that through the defendant. 103.Ms Lai asks the court to reject the evidence of Mr Ng. Ms Lai places great reliance on the fact that there was originally just one cashier order (HK$1 million) in favour of LSD which was later redeemed and replaced by three cashier orders: one for the defendant (HK$250,000), one for Mr To (HK$250,000) and one for LSD (HK$500,000). Ms Lai submits that the only reasonable inference to be drawn is that the cashier order for the defendant was intended to be a payment to him personally. 104.Having considered all the evidence and bearing in mind the burden of proof, I find that there is some credence in Mr Ng’s evidence that Ms Tong had helped the defendant in respect of the work of LSD in NTE. Firstly, the fact that the defendant had claimed reimbursement from LegCo in respect of Ms Tong does not mean that she had not also helped him, with or without pay, in respect of LSD. Secondly, Mr Ng’s evidence that Ms Tong was an active member of LSD has not been contradicted by any other evidence. Thirdly, that the defendant would trust Ms Tong not only regarding matters relating to his office in LegCo is to a certain extent supported by the agreed bank evidence that he had transferred the whole of the proceeds of the 1st Payment from his bank account to her bank account. 105.As regard the nature of the 1st Payment, with respect there is force in the closing submission of Mr Pun, SC (who argued this part of the defence for the defendant) that there were similarities between that payment and the other payments from Mr Lai in that none of them had stayed in the defendant’s bank account. To the contrary, all of them had been withdrawn in their entirety almost immediately upon receipt. The proceeds of the 1st Payment were withdrawn by instalments within a few days upon receipt and transferred to Ms Tong who, according to Mr Ng, was helping the defendant in matters relating to the NTE Branch of LSD. The proceeds of the 2nd Payment were paid into the bank account of LSD four days after it was received by the defendant. There is evidence before this court, not contradicted by the prosecution, that the proceeds of the 3rd Payment were used for the legal costs of LSD members. As regards the 4th Payment, the cashier order in the defendant’s favour was subsequently replaced by a cashier order in favour of LSD. Before that, there was evidence that the defendant had tried to pay his cashier order into the bank account of LSD. Therefore, there is a discernible pattern which provides some circumstantial support to Mr Ng’s assertion that the 1st Payment, even though having been paid into the defendant’s account, was in fact intended for LSD and used for its purposes. On the other hand, there is no evidence to contradict Mr Ng’s evidence that the 1st Payment had been used for the purpose of LSD. 106.I have not ignored the fact that when the defendant was interviewed on 1 August 2014 by RTHK in a radio programme, he was asked by the host whether the HK$500,000 (the 3rd Payment) was the only payment and whether there had been other payments before that (“咁即係，係咪誒由始至終都係收到呢一筆，… 五十萬?再之前呢?再之前有冇㗎”). To this, the defendant replied in the negative by saying that he had none (“我、我無㗎，我無㗎。”).[100] The prosecution does not rely on this as a lie. I think the prosecution is right not to do so. Even if it could be proved that the aforesaid statement of the defendant was a lie, it does not in my view has much probative value for strengthening the inference of guilt, as there could be innocent reasons why the defendant would not want to reveal the existence of other donations from Mr Lai at the time: Yuen Kwai Choi v HKSAR.[101] The prosecution relies on the radio interview to show that the defendant must be particularly alerted that he had all along failed to comply with Rule 83 and what he should have done was to make belated registration. In my assessment, however, if the defendant had not considered himself to be duty bound to disclose the 3rd Payment, then the fact that he had not made any disclosure even after the radio interview would be neither here nor there and the failure to register the payment would not advance the prosecution case. 107.I consider that the defendant’s conduct is not without suspicion. This is because of the replacement of the original cashier order (in LSD’s favour) with the subsequent cashier order (in the defendant’s favour). Even according to the defence, the defendant had a role to play in causing that replacement. However, having taking all the evidence into account, I cannot be sure that the latter cashier order was for the defendant personally as a LegCo Member rather than a payment which he had received on LSD’s behalf. As such, the benefit of doubt goes to the defendant. That means that the prosecution has failed to prove the main plank of its case, namely that the defendant had committed a misconduct by breaching his duty of disclosure under Rule 83 of ROP. As a result, it would be unnecessary for me to consider whether the prosecution has made out the remaining elements of the offence which are in dispute. CONCLUSION 108.As the tribunal of fact, despite the suspicions I have of the defendant’s conduct, I am not satisfied that the prosecution has proven its case against him beyond reasonable doubt. In the circumstances, the defendant has the benefit of doubt and is acquitted of the charge. 109.I thank all counsel for their valuable assistance for all of which this court is indebted.
[1] FACC 12-15/2016, at §§ [2] P42. On that occasion, Members talked mostly about another local newspaper “Ming Pao”. The defendant’s speech is at pp 4370-4372. [3] [2009] 4 HKC 204 [4] See “Issues relevant to consideration of an application for Council’s special leave for officers of the Council to give evidence of Council proceedings in a criminal case” (“the Briefing Note) prepared by Legislative Council Secretariat relating to the present case dated 25.11.2016 (LC Paper No. LS/16-17), at §4. [5] [1993] AC 593 [6] (2009) 12 HKCFAR 568, at §§11-14 [7] [2016] 6 HKC 417, at §§63-64. [8] (2014) 17 HKCFAR 689. [9] Ibid, at §§39-43. See the discussion on “Parliamentary privilege” below. [10] 24th ed, at 235-236, [11] It has been held that Committees are the natural extensions of LegCo through which it functions: see Cheng Kar Shun and Anor v the Honourable Li Fung Ying & Ors, supra, at §§209-211 [12] [2011] 1 AC 684, at §§27-62 [13] Including Attorney General of Ceylon v De Livera [1963] AC 103, 120; Ex p Watson (169) LR 4; United States v Brewster (1972) 408 US 501; and R v Greenway (unreported) 25 June 1992, Central Criminal Ct, but see [1998] PL 367, 257. [14] See §§27-50 of the speech of Lord Phillips. [15] Ibid, at §§ 51-60 [16] Ibid, at §61 [17] supra, at §§61, 128 & 130 [18] [1994] 3 All ER 407 [19] Ibid, at 413g-h [20] [2000] 2 All ER 224 [21] Ibid, at 234j-235a [22] Cm 8313, April 2012 [23] Ibid, at §27 [24] [2017] 1 HKLR 460, §62 (as per Lam VP) [25] Ibid, at §28 [26] Ibid, at §32 [27] Ibid, at §40, citing New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, 382 with approval. [28] Ibid, at §43 [29] [2017] 1 HKLRD 460, at §24 [30] See the speech of the Chief Secretary moving the second reading of the Legislative Council (Power and Privileges) Bill 1985 on 15 May 1985 [31] (1997-98) 1 HKCFAR 318, at 341C-D [32] Supra, at §22 [33] Supra, as per Lord Phillips (at §63) and Lord Clarke (at §§129-130). See also Lord Hope, Baroness Hale, Lord Brown, Lord Mance & Lord Kerr (at §128). [34] Supra, as per Lord Rodger (at §118). See also Lord Hope, Baroness Hale, Lord Brown, Lord Mance & Lord Kerr (at §128). [35] Supra, as per Lord Phillips (at §81-83) and Lord Clarke (at §129) and Lord Rodger (at §108). See also Lord Hope, Baroness Hale, lord Brown, Lord Mance & Lord Kerr (at §128). [36] See Rule 83 of ROP. [37] At §234 of the Report [38] [1990] 2 QB 460 [39] Ibid, at 476C-D [40] Ibid, 478 A-F [41] [1995] 1 AC 321, approved by the House of Lords in Hamilton v Al Fayed, supra. [42] (1884) 12 QBD 271, 275 as per Lord Coleridge CJ:
[43] Supra, at §§29-30 (per Lord Phillips) [44] Supra, at §§25, 51 (per Cheung CJHC), §§76-78 (per Lam VP) & §§85-87 (per Poon JA) [45] Supra, at p337D [46] In particular, Rules 73, 83, 83A, 84 & 85 of ROP of Legislative Council [47] 香港特別行政區訴梁曉暘, HCMA 229/2016; see also Part IV of Cap 382 which render certain conducts committed in LegCo as criminal offences. [48] (2005) 8 HKCFAR 192 [49] (2010) 13 HKCFAR 745, at §§26-27. [50] See Chief Executive of HKSAR v President of the Legislative Council, supra, at §65 (per Lam VP) [51] See ROP, s85 [52] (1991) 14 EHRR 47 [53] At §111 [54] Ibid, at §113 [55] (2002) 5 HKCFA 381, 408G [56] (2013) 16 HKCFAR 837, at §2 [57] Article 25, the Basic Law [58] It is Mr Lee’s contention that the filing of the prescribed registration form for disclosure is just a device to save a Member’s trouble in making disclosure orally in LegCo meetings. However, as discussed below this contention betrays a confusion of the different and separate duties imposed respectively by Rule 83 and Rule 83A of ROP. [59] See the Brief prepared by the Legislative Council Secretariat dated 25.11.2016 (LC Paper No. LS 15/16-17, Appendix IV, fn 4) in respect of the Prosecution’s request [60] Supra, at §337C-E [61] [1972] 1 QB 522, at 531F [62] [2008] 1 All ER 1, at §19. [63] (2004) 7 HKCFAR 600 [64] [1979] HKLR 1 [65] (2005) 8 HKCFAR 192 [66] (2012) 15 HKCFAR 185 [67] (2002) 5 HKCFAR 381 [68] (2013) 16 HKCFAR 525 [69] [2005] QB 73 [70] [2009] 4 HKLRD 840, at §40 [71] P37 & P45 [72] P40 [73] P46 [74] P43 [75] P44 [76] P47 [77] P49 [78] P50 [79] P51 [80] P52 [81] P53 [82] P54 [83] P4 – P20 [84] See ROP(P2), Rules 83 & 83A [85] See the transcripts of TV interview (P30a & P32a), radio interviews of the defendant (P31a, P33a & P34a) and the newspaper cuttings (P35). [86] P36 [87] P21, SHM/HSBC/19 [88] [1981] 1 WLR 1039 [89] at p1042B [90] [1990] 1 HKC 1, at p12H [91] [2008] UKPC 56 [92] (No 2 of 1993) (1993) 61 SASR 1 [93] [2006] EWCA Crim 2694 [94] CACC 304/2013 [95] See also Rule 84, ROP which deals with the situation where a Member has a direct pecuniary interest in a question before LegCo. [96] See for example, P10 [97] HCAL 54/2012. A decision in favour of the defendant was made on 14.6.2012. [98] P56 [99] P39 [100] P33a, Counters 103 & 104 [101] (2003) 6 HKCFAR 113, 128D–H |
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