HKSAR v. Tsang Yam Kuen, Donald

FAMC No. 49 of 2018

[2018] HKCFA 63

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 55 OF 2017)

_______________________

BETWEEN

_______________________

_______________________

DETERMINATION

_______________________

Chief Justice Ma:

1.We are satisfied that leave to appeal should be granted in respect of the following questions of law, namely:

In respect of the mental element of the offence of misconduct in public office contrary to common law:

(a)    What is the proper direction to the jury on the element of wilful misconduct?  To what extent is it necessary for the jury to be directed that the official must know that his conduct was unlawful (and/or disregarded the risk of such) in addition to a direction that the act itself must be “deliberate”? 

(b)    In circumstances where the misconduct in question is premised upon an allegation of failure to declare or disclose, or concealing, a conflict of interest, to what extent is the trial judge required to give directions or assistance to the jury on how they are to resolve the issue of whether the accused was under a duty to disclose? If there are two possible failures (one corrupt, one non-corrupt) to what extent should the duty direction be modified or explained?  (Question 1)

In respect of the element of seriousness in the offence of misconduct in public office contrary to common law, to what extent is the trial judge required to provide assistance to the jury on how the element of seriousness is to be assessed?  Is the Court of Appeal entitled to draw any conclusions where a jury has failed to agree that the defendant acted corruptly? (Question 2)

2.We are also satisfied that the following issue, advanced on the substantial and grave injustice ground, is reasonably arguable, namely:

In the context of Count 2 standing on its own, and in circumstances of a hung jury on Count 1, whether the trial judge’s directions on the element of wilful misconduct were flawed by a failure to direct the jury on the need to find that the Applicant knew that his conduct was unlawful in accordance with Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 at §42, thus leaving it open for the jury to convict on the basis that the Applicant simply made a deliberate decision not to disclose his dealings with Mr Wong Cho-bau in respect of the property that was the subject of the charge, as opposed to the Applicant deliberately concealing those dealings with the requisite knowledge.

3.The appeal will be listed to be heard on 14 May 2019.

Ms Clare Montgomery QC, Mr Derek Chan SC and Ms Betty Chiu, instructed by King & Wood Mallesons, for the Applicant

Mr David Perry QC and Ms Maggie Wong SC, Counsel on fiat, Ms Alice Chan SADPP and Ms Irene Fan SPP, of the Department of Justice, for the Respondent