HKSAR v. Shum Kwok Sher

CACC000003/2001

CACC 3/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 3 OF 2001

(ON APPEAL FROM DCCC 687 OF 2000)

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Coram: Hon Stuart-Moore VP, Mayo VP and Woo JA in Court

Date of Hearing: 14 August 2001

Date of Judgment: 14 August 2001

Date of Reasons for Judgment: 21 August 2001

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REASONS FOR JUDGMENT

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Hon Woo JA (giving the Reasons of the Court):

Introduction

This was an appeal by the defendant SHUM Kwok-sher against conviction, pursuant to s 82(2)(a) of the Criminal Procedure Ordinance, on ground 1 which involved a question of law alone, and he also applied for leave to appeal against conviction on a number of other grounds. At the conclusion of the hearing before us on 14 August 2001, the appeal on ground 1 was dismissed and the application on other grounds was also dismissed. We stated that we would hand down our reasons later. They appear below.

The Charges

2.The defendant was on trial before Judge Line in the District Court on 4 charges which were all for misconduct in public office, contrary to Common Law. The public office that the defendant was alleged to have been holding at all material times was that of Chief Property Manager of the Government Property Agency ("GPA") of the Hong Kong Government.

3.The particulars of Charge (1) were that between 1 August 1994 and 31 December 1994, without reasonable excuse or justification, the defendant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting Onclever Limited ("Onclever") to be wrongfully pre-qualified as a tenderer for government contracts for management of domestic accommodation by

(i) failing to declare a conflict of interests arising from the defendant's family relationship with the directors and shareholders of Onclever, contrary to the Civil Service Branch Circular No. 19/1992;

(ii) failing to abstain from the decision making process in respect of the pre-qualification of Onclever; and

(iii) acting partially in favour of Onclever in the said pre-qualification process, namely recommending Onclever to be pre-qualified despite knowledge of its lack of the necessary qualifications for pre-qualification.

4.The particulars of Charge (2) were that between 1 January 1997 and 31 December 1997, without reasonable excuse or justification, the defendant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting the wrongful award of a management contract with a contract sum of HK$56,147,076 in favour of Onclever by

(i) failing to declare a conflict of interests arising from the defendant's family relationship with the directors and shareholders of Onclever, contrary to the said Civil Service Branch Circular;

(ii) failing to abstain from the decision making process in respect of recommendations to the Central Tender Board ("CTB") of successful tenderers for the management contract of the Military Estate; and

(iii) acting partially in favour of Onclever, namely recommending Onclever to be awarded the said management contract despite knowledge of its lack of the necessary qualifications for the said management contract.

5.The particulars of Charge (3) were that between 1 January 1998 and 21 December 1998, without reasonable excuse or justification, the defendant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting the wrongful award of a management contract of the former Hong Kong International Airport at Kai Tak with an estimated contract value of $87,560,000 in favour of Onclever. Similar particulars as those enumerated under Charge (2) were repeated.

6.The particulars of Charge (4), as amended, were that between 1 February 1996 and 1 November 1999, without reasonable and justification, the defendant did a series of acts calculated to injure the public interest, namely dishonestly acting partially in favour of Onclever, Southern Services Limited ("Southern Services") and their related company, AA Property Services Limited ("AA Property"), thereby causing and permitting the said companies to be awarded in excess of 90% of all short term contracts with a total contract sum in excess of $13,720,410.91 by

(i) failing to declare a conflict of interests arising from the defendant's family relationship with the directors and shareholders of Onclever and Southern Services, contrary to the said Civil Service Branch circular;

(ii) keeping all the quotation letters in his exclusive custody;

(iii) failing to abstain from the excise of control of the quotation system in respect of the award of short-term contracts despite the conflict of interests aforesaid;

(iv) recommending the said company to bid for the short term contracts, ie, (a) Onclever on all such contracts from 1 April 1996 until the end of December 1998; (b) AA Property Services for all such contracts from 26 December 1996 until the end of August 1998; (c) Southern Services for all such contracts from 13 April 1998 until the end of September 1998.

Undisputed Facts

7.A number of facts were not disputed by the parties at the trial. They were contained in two documents, dated respectively 30 November and 11 December 2000, of admitted facts pursuant to s 65C of the Criminal Procedure Ordinance, Cap 221. The most material of such facts are set out below.

8.Between August 1994 and 21 December 1998, the defendant was posted to the GPA as the Chief Property Manager, and as such, he became responsible to the Government Property Administrator.

9.The said Civil Service Branch Circular on conflict of interests was issued on 4 December 1992, which contains, inter alia, the following provisions:

" This circular sets out the common areas in which a conflict of interest may arise between an officer's official duties and his private interests. ...

2. The situations described in his circular are by no means exhaustive; ... In case of doubt, officers should seek the advice of their superior officers or departmental secretaries.

3. All officers are strongly reminded that they should at all times make a conscious effort to avoid or declare, as appropriate, any conflict that may arise or has arisen. Failure to do so may render them liable to disciplinary action which may result in removal from the service.

4. A conflict of interest is likely to arise when an officer's loyalty to the Government conflicts with his loyalty to:-

(a) his family and other relations;

...

5. ... all civil servants should be honest and impartial in their dealings with members of the public and with their staff. A civil servant must not use his position in the Civil Service, nor any information made available to him in his capacity as a civil servant, to benefit himself or his family financially or otherwise, or to favour his relations or friends or any other group of people with whom he has personal or social ties. He should also avoid putting himself in a position where he might arouse any suspicion of dishonesty, or of using his official position to benefit himself or favour his family and friends.

6. An officer should therefore:-

...

(d) report to his superior officer any private interest that might influence, or appear to influence, his judgement in the performance of his duties.

...

16. ..., the officer should declare his private interest to his superior officer, who will then advise him how to proceed."

10.The Discovery Bay estate comprised around 6,000 residential units. Discovery Bay Services Management Limited ("DBSM") was responsible for management at the estate. DBSM had contracted out security services and cleaning services to other companies. Since 1989, up to 1999 and continuing, Onclever had been awarded the security services contract. Cleaning work had been contracted out to another company. There were about 90 security guards at the Discovery Bay estate.

11.There are 3 methods by which government contracts are awarded to the private sector, namely,

(i) pre-qualify tendering, a method by which the government identifies, or shortlists, a number of suitable tenderers, with suitable qualifications to bid for particular types of government contracts. When the government intends to award a contract of the type in question, the pre-qualified tenderers will be invited to put in their tender documents and make a bid for the contract.

(ii) Opening tendering, which is used where no initial screening of the qualifications and experience of bidders is necessary.

(iii) Quotation contracts, which are usually short term contracts of a much lesser contract sum than those awarded under the two methods referred to above.

12.On 29 July 1994, by a memorandum dated that date, the Government Property Administrator sought approval from the Chairman of the CTB, who was the Secretary for the Treasury, for a pre-qualification exercise to shortlist a number of suitable tenderers with proven experience in residential property management. It was intended that a total of eight 3-year term management contracts would be awarded following the pre-qualification exercise. Such approval was given by the Chairman of the CTB on 11 August 1994.

13.At the assessment panel meeting on 19 October 1994, Onclever was not recommended to be pre-qualified for management contracts for non-domestic accommodation in accordance with the "Analysis of Documents" prepared by Winnie Chiu (PW1). It was recommended to be pre-qualified for management contracts for domestic accommodation.

14.LUN Kai-yeung (PW2) prepared a Revised Analysis of Documents to the effect that Onclever Limited had met all the pre-qualification requirements for domestic accommodation. The Revised Analysis of Documents was sent to the Assessment Panel members on 15 November 1994 for records. On 25 November 1994, by a memo of that date, the CTB accepted the recommendation of the Government Property Administrator and approved the pre-qualification of Onclever and 7 other companies.

15.On 13 March 1997, by a memorandum signed by the defendant dated that date, approval was sought from the Secretary for the Treasury in respect of a Draft Tender Notice for the management of 10 military sites. The contract would be awarded through open tender. Paragraph 2 of the Draft Tender Notice read:

"2. Tenders are invited from tenderers with the following qualifications and experience only -

'Property managing agents in sound financial status with a minimum of five years of experience in estate management field and currently managing residential estates of not less than 1,000 units, one of which must comprise 300 or more units.'

Documentary proof of the above qualification and experience must be submitted with the tender. ..."

16.On 1 May 1997, by a memorandum signed by the defendant and dated that date, approval was sought from the Secretary for the Treasury on a revised Draft Tender Notice in which para 2 referred to above was deleted. It was stated in that memorandum:

"In view of the nature of the properties managed i.e., they are all awaiting redevelopment or sale in the future and not intended for extensive use in their present condition, it is not expected that a first class management service is required. I am content that a tenderer who can meet the minimum tender specifications and offer the lowest cost will be competent to take on the job... Against this background, the 'Tender Notice' and 'Information on Tenderer's Qualification and Experience' have been revised and a copy of each is attached herewith for your reference please."

17.In a memorandum signed by the defendant to the Secretary of the CTB dated 7 July 1997, it was stated:

"The tender submitted by Onclever Ltd is the lowest. ... Onclever Ltd was established in 1989 and has more than seven years in estate management field. It has more than 10,000 residential units under its management (with one estate at Discovery Bay with 6,064 units) and currently in sound financial status ... . Onclever Ltd has previously been engaged in some minor service orders with this Agency and its performance has been good. I also confirm that Onclever Ltd is suitable to perform the contract. I therefore recommend that this contract with an estimated contract value at HK$56,147,076 be awarded to Onclever Ltd."

18.The CTB approved the award of the contract to Onclever at a total estimated cost of $56,147,076 for the 3-year management contract. The defendant executed the management agreement on behalf of the GPA. Patrick W Y Hui ("Patrick Hui") executed the agreement on behalf of Onclever in the presence of Paul W W Hui ("Paul Hui").

19.From April 1998, GPA intended to launch a tendering exercise to select a contractor for managing the Kai Tak site after decommissioning of the airport. The Tender Notice which was published in furtherance of this exercise specified that:

"Tenders are invited from tenderers with the following qualifications and experience only-

'Property managing agents in sound financial status with a minimum of five years experience in estate management field and currently managing residential estates of not less than 2,000 units with one of which must comprise 1,000 or more units and non-domestic estates of substantial magnitude of not less than 100,000 square metre.' "

20.In a memorandum signed by the defendant to the Chairman of the CTB dated 17 July 1998, it was stated:

"Apart from quoting the most competitive price, Onclever is also a reputable estate management company with good reference and track record in the business. It was incorporated in 1989 and has some eight years' experience in estate management. ... The largest estate in the private sector under its management is Discovery Bay comprising 6,064 residential units and 2,310,000 square metre of non-domestic area. The Discovery Bay Services Management Ltd rated Onclever's performance as good and they had no hesitation in recommending Onclever's service. ... Onclever is also GPA's property management and leasing agent of all ten ex-military sites since 1 August 1997. The contract sum is HK$56 million. Its performance with GPA is of good standard."

21.The CTB approved the award of the contract to Onclever at a maximum amount of $87.56 million. As a result, Onclever was awarded this contract. The Chairperson of the CTB and the CTB would not have approved the award of this Kai Tak management contract to Onclever had she and it known that the representations as to Onclever's experience in the property management field set out in the defendant's memo dated 17 July 1998 were untrue.

22.On 20 September 1993, the defendant, Hui Woon-wing (ie, Paul Hui) and one NG Kit-ling passed through Hunghom Immigration Control Point at the same immigration terminal at 1431 hours, and departed from Hong Kong. On 21 September 1993, the defendant returned to Hong Kong at 2135 hours, Paul Hui at 2031 hours and NG Kit-ling at 2135 hours.

23.The defendant had never declared any conflict of interest to his employers.

The parties' cases

(a) The prosecution case

24.The case for the prosecution was that at all relevant times, the defendant, as the Chief Property Manager of the GPA, had misconducted himself in that public office in respect of his official dealing with Onclever and its associated companies.

25.The defendant had a younger brother, Eric Shum. Eric Shum married Stella Hui in December 1980. Stella Hui had two brothers, Paul Hui and Patrick Hui. Paul Hui was the managing director and majority shareholder of Onclever and a director of Southern Services. Patrick Hui was the president of Onclever and a director and shareholder of Southern Services.

26.In 1992, the defendant's wife and Stella Hui purchased a flat in Cheung Chau Island. The defendant gave Stella Hui money each month for the mortgage on the property. The defendant's wife and Stella Hui set up a computer company which worked for, and received income from, Onclever.

27.Before 1994, Eric Shum was employed by Paul Hui to fix Onclever's computers and maintain its computerised accounting system. When Onclever was pre-qualified for Government contracts in 1994 the defendant told Eric Shum to stop working for Paul Hui.

28.Onclever was a security company, providing security services to buildings. It did not have 5 years' experience in property management: this was one of the conditions of eligibility for pre-qualification to tender for large government contracts. Despite knowing this lack of experience on the part of Onclever, in 1994 the defendant pushed Onclever's cause and wrongly caused it to be qualified. Onclever and its associated companies were treated preferentially by the defendant by always being selected for government contracts.

29.In 1995, Mr Tanner (PW9) who very soon after taking over from the defendant (who had moved to another post in the GPA) had doubts as to whether Onclever should have been pre-qualified due to their lack of experience. He successfully recommended to the CTB that they be removed for this reason. This was a unique event and it was common knowledge in the GPA where Mr Tanner's building management division and the military estates division, where the defendant then worked, had offices on the same floor.

30.In 1997, the defendant wrongfully caused Onclever to be awarded the $56 million management contract for government military sites despite its lack of the required qualification for having had 5 years' experience in property management. In 1998, the defendant did the same in relation to the $87 million Kai Tak contract.

31.The defendant could authorize short-term contracts. He favoured Onclever, Southern Services and AA Property in respect of such contracts by instructing a subordinate, Chan Ping-kwong (PW12), that they were always invited to tender for such contracts. These instructions were referred to at the trial as the "the Chan instructions". The companies were awarded over 90% of these short-term contracts between April 1996 and December 1998 to a value in excess of $13 million. The defendant knew the family connection between himself and the Hui brothers ("the relationship") but never declared the relationship or any conflict of interest and never abstained from the decision making process in relation to these matters.

(b) The defence case

32.The defence case at the trial was that the offences with which he was charged were not part of Common Law in Hong Kong. The offences had been repealed as inconsistent with the rights guaranteed under the Hong Kong Bill of Rights Ordinance. Charge 4 should be stayed on the ground of absence of a defence witness. The prosecution could not prove the relationship. The defendant did not know the relationship until November 1997. The defendant innocently, if mistakenly, judged there to be no need for disclosure of the relationship. In this regard he had revisited his decision but had maintained it. The defendant never showed any favour to Onclever or its associated companies. The defendant always acted in the best of public interest. He did not give the Chan instructions.

The trial and its result

33.The prosecution called a number of witnesses who were mainly colleagues of the defendant at the material times. The defendant testified before the Judge and he called several witnesses in support of his defence. After examining various aspects of the defence evidence, the Judge came to the view that the defence case was not credible and rejected it. He did not believe the defendant and his witnesses and accepted the evidence given by witnesses for the prosecution.

34.The Judge made the following findings. At latest since his visit to the Mainland with Paul Hui in September 1993, the defendant had known the relationship. Realising that the relationship posed a conflict of interests, the defendant failed to disclose the relationship to anyone in the GPA. Instead, he pushed Onclever to qualify in the pre-qualification exercise for Government tenders though he knew perfectly well that Onclever did not have the required experience of 5 years in property management. He gave the Chan instructions in awarding contracts of less than $500,000, over which process he had control, and that resulted in over 90%, totalling in excess of $13 million, of such contracts in the relevant period being awarded to Onclever and its associated companies, Southern Services and AA Property. He also recommended Onclever to be awarded the management contract for the 10 military sites worth $56 million and that for the Kai Tak site worth $87 million, misrepresenting that it had the required experience. The Judge found the defendant dishonest in his favouring Onclever and its associated companies.

35.The Judge's reasoning and findings can be found in his Reasons for Verdict given on 19 December 2000 at the conclusion of the trial. He convicted the defendant on all the 4 charges and passed a sentence of 9 months' imprisonment on each, to run concurrently.

Grounds of appeal

36.By the perfected grounds of appeal dated 16 February 2001, the defendant raised 13 grounds of appeal against conviction. However, grounds 8 and 12 have since been abandoned. Mr Bruce, SC, for the defendant, informed us at the hearing that ground 4 was also abandoned.

Ground 1

37.Ground 1 alleges that the crime of misconduct in public office is not a crime known to the law of Hong Kong because it has not survived the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China. The offence is also inconsistent with the Basic Law in that it violates the rights guaranteed under Article 26 of the International Covenant on Civil and Political Rights ("ICCPR"), which article is incorporated into the Basic Law by Article 39 of the Basic Law, which is not to discriminate against any person on, among other grounds, status. The offence is so wide and vague to come within the group of laws that are an unacceptable discrimination against persons by way of their status as public officers. The offence is also inconsistent with the Basic Law in that it violates the rights guaranteed under Article 9 of the ICCPR, incorporated into the Basic Law by Article 39 of the Basic Law, to liberty and security of the person on the basis that the offence is vague and ill-defined and does not meet the minimum standard of certainty required of law imposing serious penal sanctions for breach, and in particular, one of the elements of the offence that the accused deserves punishment for his conduct is inconsistent with the appropriate standards of certainty.

38.Article 8 of the Basic Law provides as follows:

"The law previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

39.This constitutional declaration is repeated in section 7(1) of the Hong Kong Reunification Ordinance, as follows:

"The laws previously in force in Hong Kong, that is the common law, rules of equity, Ordinances, subsidiary legislation and customary law, which have been adopted as the laws of the HKSAR, shall continue to apply."

40.When dealing with the similar argument as raised in ground 1, District Judge McMahon in HKSAR v Lui Chi-sum, DCCC 709/1998 (23 October 1998, unreported) said at p 4 K of his judgment:

"In my view, whilst there has in the case cited been some argument as to the elements of the offence and therefore the proper form of the indictment laid, there is no doubt that the offence of misconduct in a public office has formed part of the common law for a very long time."

He concluded at p 5G as follows:

"According to my judgment, the common law offence of misconduct in a public office not only formed part of the common law of Hong Kong prior to reunification on 1 July 1997, but presently forms part of the continuing common law of the Hong Kong Special Administrative Region."

41.The ground that the offence of misconduct in public office has not survived the unification, simpliciter, has no merit.

42.Regarding the contention that the offence violates Articles 9 and 26 of the ICCPR, incorporated by Article 39 of the Basic Law, and Articles 14.2 and 14.3(a) of the ICCPR raised in the defendant's skeleton arguments, the basis is that the offence is vague, uncertain and ill-defined.

43.Mr Bruce reminded us of what had fallen from the Court of Final Appeal. In Ng Ka Ling & Ors v Director of Immigration [1999] 2 HKCFAR 4, Li CJ said at p 29A:

"The courts should give a generous interpretation to the provisions in Chapter III [of the Basic Law] that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed."

44.The Chief Justice also observed in Director of Immigration v Chong Fung-yuen, FACV 26/2000 (20 July 2001, unreported) at p 9 that "It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen."

45.Mr Bruce complained that at least two elements of the offence of misconduct in public office, as explained in R v Dytham [1979] 1 QB 722, namely, "public interest" and "calling for condemnation and punishment" were so vague that the offence should be void as against the fundamental rights and freedoms as guaranteed by the Basic Law.

46.The concept of void for vagueness has been discussed by various courts interpreting Human Rights Conventions or related constitutional documents.

47.In The Sunday Times v UK (1979) 2 EHRR 245, the European Court of Human Rights examined the meaning of the phrase "prescribed by law" found in article 10(2) of the European Convention on Human Rights, relating to freedom of expression. At p 271 para 49, the Court stated:

"In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."

48.In Ahmed and Ors v UK (1998) 29 EHRR 1, which related to regulations imposed by the Secretary of State of the Environment of the United Kingdom to prohibit local government officers from speaking to the public or publishing a work with the apparent intention of affecting public support for a political party, it was contended before the European Court that the regulations so imposed "were imprecise in their wording, making it impossible to foresee with reasonable certainty the consequences which a given action may entail for them". The applicants also criticised the regulation being vague and purely subjective in support of their contention that the regulations were not "prescribed by law" and infringing the right to freedom of expression protected by article 10 of the European Convention. A majority of the European Court disagreed, stating at p 35, para 46 as follows:

"The Court notes that the impugned Regulations were designed to lay down a framework of rules restricting the participation of a substantial number of local government officers within the categories defined in the present legislation in certain kinds of political activities which might impair the duty of impartiality which they owed to their local authorities. It is inevitable that the conduct which may call into question an officer's impartiality in the eyes of third parties cannot be defined with absolute precision.... Even accepting that it may be difficult on occasions for an officer to assess whether a given action may or may not fall foul of the Regulations, it is nevertheless open to him or her to seek advice beforehand either from the employer or from the Union or other source."

49.In Hashman and Harrup v UK (1999) 30 EHRR 241, the applicants had been convicted by a magistrate for disturbing a fox hunt and bound over. In the European Court, they contended that the finding that they had behaved in a manner contra bonos mores and the binding-over order made by the magistrate constituted an interference with their rights under article 10 of the European Convention, which was not "prescribed by law". At p 256, para 31, the Court said:

"The Court recalls that one of the requirements flowing from the expression 'prescribed by law' is foreseeability. A norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. At the same time, whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed."

50.In R v Nova Scotia Pharmaceutical Society (1992) 74 CCC (3d) 289, where the accused brought a pre-trial motion that the charge of "conspiring to lessen unduly competition in the supply of prescription drugs and pharmacists' dispensing services" infringed s 7 of the Canadian Charter of Rights and Freedoms on the basis of overbreadth and vagueness, the Supreme Court of Canada discussed the doctrine of vagueness in the context of s 7 of the Charter which provided:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

51.At p 306, Gonthier J said that the threshold for finding a law vague was relatively high. He held that the doctrine of vagueness was a principle of fundamental justice under s 7 and also part of s 1 of the Charter. The two parts of the doctrine were:

(1) fair notice to the citizen, which contemplates a formal aspect of citizens knowing the law as well as an understanding that certain conduct is the subject of legal restrictions; and

(2) limitation of law enforcement discretion, ie, a law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute.

Regarding these two components, Gonthier J observed at p 310b as follows:

"The substantive notice and limitation of enforcement discretion rationales point in the same direction: an unintelligible provision gives insufficient guidance for legal debate and is therefore unconstitutionally vague."

52.He also made it plain that a general law was not necessarily a vague law. He concluded as follows, at pp 312h-313b:

"... laws that are framed in general terms may be better suited to the achievement of their objectives, inasmuch as in fields governed by public policy circumstances may vary widely in time and from one case to the other. A very detailed enactment will not provide the required flexibility, and it might furthermore obscure its purposes behind a veil of detailed provisions .... One must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself."

53.In Sabapathee v The State [1999] 1 WLR 1836, it was argued that "trafficking" in s 38 of the Dangerous Drugs Act 1986 of Mauritius was too vague. On appeal to the Privy Council, Lord Hope said at p 1843B-F:

"As the Board held in Ahnee v Director of Public Prosecutions [1999] 2 W.L.R. 1305 there is to be implied in section 10(4) the requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct. So the principle of legality applies, and legislation which is hopelessly vague must be struck down as unconstitutional. But the precision which is needed to avoid that result will necessarily vary according to the subject matter. The fact that a law is expressed in broad terms does not mean that it must be held to have failed to reach the required standard.... some conduct which the law may quite properly wish to prescribe as criminal may best be described by reference to the nature of the activity rather than to particular methods of committing it. It may be impossible to predict all these methods with absolute certainty, or there may be good grounds for thinking that attempts to do so would lead to undesirable rigidity. In such situations a description of the nature of the activity which is to be penalised will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal. The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience. In this way the law as explained by its operation in practice through case law will offer the citizen the guidance which he requires to avoid engaging in conduct which is likely to be held to be criminal."

54.From the above authorities, the following principles can be discerned. A law must be accessible, ie, a person must be able to know the law relevant to his case, and that it must be sufficiently precise so that the person can regulate his conduct. However, the precision will vary according to the subject matter. A law may be in broad terms and be valid. It may be clarified by court decisions, and advice can be sought on the lawfulness of conduct. Laws relating to a public officer's partiality cannot be expected to be defined with absolute precision, lest excessive rigidity unable to provide for changing circumstances may result.

55.Turning to the contention that the offence with which the defendant was charged in this case, misconduct in public office, is vague, in Commonwealth v Steinberg, 362 A.2d 379, the same argument was raised. Jacobs J said, at p. 391:

"... it happens that the particular common law offense with which the appellant hearing is charged, misbehaviour in office, has a great deal of precedent to support it. The conduct proscribed is carefully set out and delimited in specific terms in numerous cases .... This Court and any individual who wishes to inform himself may be guided by examples of conduct which was found in the past to demonstrate misuse of a public office for private benefit with corrupt motive, as well as conduct which was found to be innocent of such motive... If the fact that the improper and corrupt utilization of the office, entrusted to him by the public, to obtain gain for himself and his relatives is criminal comes as a surprise to Mr Steinberg, it is not due to lack of clarity or precision in the law."

56.The concept was also discussed in R v Dytham [1979] 1 QB 722, at p 727H of which Lord Widgery CJ said:

"This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide. It puts no heavier burden upon them than when in more familiar contexts they are called upon to consider whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house: ..."

57.Mr Blanchflower SC, for the respondent, pointed out that often there are elements of offences, such as dishonesty in theft offences and gross negligence in cases of involuntary manslaughter, where necessarily there will be some vagueness which attaches to such allegations which, to an extent, depend on the jury's objective assessment of the dishonesty or negligent conduct in question.

58.In R v Fisher (1994) 88 CCC (3d) 103, the Ontario Court of Appeal considered whether s 121(1)(c) of the Criminal Code, which provided that "everyone commits an offence who ... being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly... for his benefit..." was void for vagueness. Arbour, JA, delivering the judgment of the Court, found it was not. She stated at pp 107g-109e as follows:

"I say at the outset that the absence of any reference to a mental element in a Criminal Code provision enacting an offence is not a sufficient basis for a declaration of vagueness within the meaning of s.7 of the Charter.... Indeed, vagueness is tested by the court's ability to interpret statutory language within the framework of acceptable legal analysis and debate: ...."

"In my respectful opinion, the trial judge erred in concluding that s.121(1)(c) was unconstitutionally vague on that basis. In its substantive conception, fair notice requires not only that the law be brought home to persons governed by it, but that the law convey in an intelligible way what the proscribed conduct is. The fact that citizens would be surprised to find how broadly the net has been cast by Parliament in criminalizing corruption in the public service does not mean that the law is broad to the point of vagueness. Overbreadth has no autonomous status under the Charter. In Canadian law, it is merely a component of the doctrine of vagueness, which ranks as a principle of fundamental justice in s.7 of the Charter. ..."

59.Mr Blanchflower submitted, and in our view, correctly, that the offence of misconduct in public office is not so wide and vague as to constitute an unacceptable discrimination against public officials, for the following reasons. The common law courts have applied and interpreted the offence for at least over 300 years (see Case 136, Anonymous (1704) 6 Mod 96; 87 ER 853, cited by counsel for both parties before us). The courts have not found the offence to be so wide and vague so as to infringe the common law and constitutional rights relied upon by the defendant. The offence has elements of mens rea and actus reus and it only applies to public officials in relation to the execution of, or failure to execute, their duties. The conduct must arise from an improper motive; it does not penalise mere errors. The offence only applies to very serious conduct deserving of condemnation and punishment.

60.The Judge also dealt with the argument on the same basis raised by counsel for the defendant before him. He said at p 25 of his Reasons for Verdict:

"It was also argued that the offence lacked sufficient certainty in its formulation in an extent such that it could offend article 12. I disagreed. Open Archbold and you can find the offence adequately defined. Anyone could be sure that the holders of a public office who dishonestly shows partiality to a government contractor commits the crime as such conduct is calculated to injure the public interest so as to call for condemnation and punishment. The fact that it is for a jury, or me, to decide whether the evidence revealed the necessary degree of culpability is no more amenable to attack than a jury deciding upon dishonesty. The fact that there is room for some debate as to whether dishonesty is a necessary ingredient of the offence is no different from the proposition in conspiracies to defraud and similar debates attached themselves to very many of our offences. Legal academics would be having a thin time of it if they did not."

61.In our judgment, the offence has been well defined, especially in the language of Dytham. Ground 1 in its general terms and in the various facets complaining about vagueness, uncertainty, ill-defined elements, has no merit and it fails.

Ground 2

62.Ground 2 complains that the Judge had misapplied the elements of the offence, if they were sufficiently certain, to the facts of the case. In the skeleton arguments of the defendant, it is alleged that "one of the problems which the Applicant says bedevilled the Reasons for Verdict is that nowhere did the learned trial judge set out the elements of the offence."

63.This allegation is wholly unfounded. At p 21 of the Reasons for Verdict, under the heading "The charges", the Judge discussed the elements of the offence, reviewed them and explained why and how he found each proved. He said:

"There was no issue but that the defendant held public office or that, if he did what the prosecution claimed, there was reasonable excuse or justification for it...

... I was sure that he failed to disclose the connection which he should have done and that he failed to abstain from the decision making process when he should have done.

... I was sure that in relation to the first three charges that Onclever was wrongly pre-qualified an award of the two contracts; that it was the defendant who caused the wrongful qualification; and that in relation to the fourth charge that the defendant gave the 'Chan instructions'.

Did the particularised matters in each case amount to the defendant doing a series of acts calculated to injure the public interest? I was sure that the answer to this question was yes. This was for the simple reason that the evidence proved in respect of each charge that the defendant had tilted what should have been a level playing field in favour of Onclever. Without his help Onclever would not have been recommended for either prequalification or the two contracts and it would not have been invited to quote for nearly all the short term contracts. In my judgment that damages the public interest and does so to an extent that calls for condemnation and punishment. It is obviously in the public interest that the playing field be level concerning such matters and that Government officials do not work to a private agenda that secretly favours their own.

Did the defendant act partially in each case? I found that he did...There remained clear evidence of the defendant helping Onclever in a way that the facts did not justify and this evidence went alongside his failure to disclose the connection to Onclever. The evidence drove me to the conclusion that the reason for the defendant's non-disclosure was his desire to help and favour Onclever. I was sure that in each case he was partial. In particular, in relation to the assessment panel I was sure that his moving of it to recommend Onclever for prequalification was due in significant part to his hidden connection to Onclever and not just due to a desire for new blood and greater competition."

64.The Judge continued to deal with the question of dishonesty. He applied the test in R v Ghosh and found that the defendant was dishonest as regards the qualification of Onclever and the opportunity of Onclever to tender for the government contracts of the GPA. Although in Dytham, dishonesty was not stated to be one of the elements required to prove the offence of misconduct in public office, in R v Llewellyn-Jones [1968] 1 QB 429, Lord Parker CJ assumed, for the purposes of that case, that an element of dishonesty was involved. The element of dishonesty was also a particular of the charge in R v Bowden [1995] 4 All ER 505, as in the instant case. Be that as it may, the Judge did deal with dishonesty and found that the defendant was dishonest under the Ghosh test. When we called upon Mr Bruce to say what elements of the offence had been omitted by the Judge, he was unable to specify any.

Ground 3

65.This ground alleges that there are inconsistent remarks in the Reasons for Verdict and the Reasons for Sentence. It was argued that the convictions were unsafe and unsatisfactory because in the Reasons for Sentence, the Judge remarked that the defendant might not have understood or might in fact have thought that he was furthering the public interest, whereas in his findings in the Reasons for Verdict, the Judge held that the defendant was engaged in a series of acts calculated to injure the public interest.

66.However, this ground takes the Judge's Reasons for Verdict and those for sentence out of context and we were surprised that Mr Bruce sought, in our view most unfairly, to compare them to found the complaint. The relevant passage in the Reasons for Verdict has already been cited above where the Judge discussed the element of the offence whether the defendant's acts were "calculated to injure the public interest". It is repeated here for easy reference. He said:

"Did the particularised matters in each case amount to the defendant doing a series of acts calculated to injure the public interest? I was sure that the answer was yes. This was for the simple reason that the evidence proved in respect of each charge that the defendant had tilted what should have been a level playing field in favour of Onclever. Without his help Onclever would not have been recommended for either prequalification or the two contracts and it would have been invited to quote for nearly all the short term contracts. In my judgment that damages the public interest and does so to an extent that calls for condemnation and punishment. It is obviously in the public interest that the playing field be level concerning such matters and that Government officials do not work to a private agenda that secretly favours their own."

67.In his Reasons for Sentence, the Judge returned to this theme:

"Governments spend enormous amounts of our money. There is an obvious public interest in ensuring that those with whom they contract compete evenly and are treated evenly. You have damaged that public interest."

68.On the other hand, the passage relied on by the defendant to say that the Judge had expressed inconsistent views was where the judge discussed mitigating factors. The Judge said:

"I judge there to be substantial mitigation on the facts in this case which make me keep your sentence shorter than it may otherwise have been.

It is the case that when the company was awarded work it did it satisfactorily and it did it cheaply. The Government had suffered neither in its pocket nor in the performance of the contracts. You could well have believed that the criteria set for the work that had to be done was too high. I did not think that you would have favoured the company in the way you did if you had thought it incapable of the work. I can see how it was tempting to put aside your proper judgment and to justify yourself on the basis of there being no harm done and, indeed, that the Government would end up better off."

69.It is plain that the Judge was discussing two different things. They are not inconsistent as alleged by the defendant. This ground fails.

Ground 5

70.Ground 5 alleges that there was a material irregularity in the trial in that the Judge admitted irrelevant evidence in the form of the government circular on conflicts of interest on the basis that

(a) there being no proof at all (or alternatively to the criminal standard) that the defendant was aware of the circular and

(b) that the Judge wrongly took it into account in setting the standard of conduct which would attract criminal liability on the part of a person in the position of the defendant.

71.Apart from the fact that the said Civil Service Branch Circular was produced at the trial as exhibit 8, material parts of it were set out in the admitted facts referred to above. It has to be noted that the Judge took the circular into account since it was a particular of each of the 4 charges against the defendant. The Judge, however, acted very fairly regarding the defendant's knowledge of this circular. He was satisfied that the defendant, while knowing his obligation to disclose conflicts, failed to do so. The Judge said:

"There existed a government circular about conflict of interest. It was exhibit 8. There was evidence that that it was circulated to all officers and there was cross-examination to the effect that there was no proof that the defendant knew the contents. I doubt very much whether anybody reads such circulars in full and people would certainly not retain all the information there set out. On the other hand, the idea of a conflict of interest is not a difficult one to comprehend and I judge that a man in the senior position of the defendant, with those attributes and that experience that make him fit to hold such a post, could not have been ignorant of the duty to disclose conflicts and to abstain from the decision making process where there was a risk of conflict."

72.There was no irregularity as complained of or at all. Ground 5 has no merit.

Ground 6

73.Ground 6 alleges that there was a material irregularity in the trial in that the Judge erred in finding as a fact that the defendant knew his duty to disclose and the scope of it,

(a) simply because the defendant held the position that he did; and

(b) holding that a person "could not have been ignorant" of such a duty and the scope of it is not a sufficient substitute in law for proof to the criminal standard of knowledge.

It was further alleged that the Judge had never made a proper finding on this issue.

74.Mr Blanchflower drew our attention to several authorities, some very old, where operation by a public officer in a conflict of interests situation amounted to the offence of misconduct in public office.

75.Taking some of the more recent authorities, in Steinberg (referred to in para 55 above), a former Chairman of the board of the city housing authority, was convicted of misbehaviour in office by showing favouritism to his brother's construction firm in the allocation of repair and maintenance work and in the allocation of properties to be rehabilitated, and of conspiracy and of misbehaviour in office by causing the deposit of authority funds in a bank account in which he had an interest. In dismissing his appeal, Jacobs J said at p 387:

"In the present case, the appellant's use of his official influence to benefit a family member when his duty was to advance the city's best interests was corrupt."

76.In Llewellyn-Jones (referred to in para 64 above), it was argued that the offence of misbehaviour of public office was unknown to the law. Lord Parker CJ said at p 435:

"He [counsel for the appellant] would, I think, concede that if it were said that the misbehaviour amounted to oppression, using the powers of his office to compel someone to act in a particular way, or to extortion, causing somebody to pay him money, to corruption in the sense of bribery, to partiality, or indeed to acting fraudulently ... he really could not argue that they did not describe criminal offences known to the common law... "

77.In Bowden (also referred to in para 64 above), the appellant was convicted of misconduct in public office. He was a maintenance manager of the City Works Department employed by the Stoke City Council. The offence alleged that he had Council employees carry out works on his friend's house, when the work was not required to be carried out under the repairing policy of the Stoke City Council. He was convicted of the offence and his appeal was dismissed.

78.It is clear from the above authorities that a person holding a public office would be guilty of a misconduct in a public office if he were not to disclose the particular interests which he served which would conflict with his duty as such an office holder but continue purportedly to discharge his duty. This is so despite the fact that he did not make any gain or undue gain, insofar as he operated partially in pursuit of the interests of his own including those of his relatives or friends that conflicted with his official duty or with the interests of the government or the public which he served, and that his conduct was so serious as to call for condemnation and punishment.

79.In our judgment, there was no irregularity as alleged or at all. The Judge's saying that "a man in the senior position of the defendant, with those attributes and that experience that made him fit to hold such a position, could not have been ignorant of the duty to disclose conflicts and to abstain from the decision making process where there was a risk of conflict" in the passage cited above was well justified in view of the defendant's position as disclosed in the evidence that he could influence the pre-qualification of tenderers for contracts worth tens of million dollars, and he had control in awarding contracts of $500,000 or less. The defendant's own evidence mentioned his consideration whether he should disclose the relationship and he revisited his decision later. These were all supportive of the Judge's finding that the defendant knew of his duty to disclose the relationship, and he recognised the conflict of interests so that either he disclosed the relationship or he should have abstained from the decision making process that would have been implicated by the conflict. Ground 6 is without substance and fails.

Ground 7

80.In ground 7, complaint is made that the Judge considered irrelevant matters and that this constituted a material irregularity. Three remarks made by the Judge were the subject matter of this ground.

81.The first is the observation made at p. 49 of the appeal bundle that the defendant could not have been "unaware of the real risk that an outsider could reasonably cry foul".

82.It is necessary to consider this observation in the context in which it was made. The Judge was weighing and considering the defendant's credibility.

83.The Judge said this:

"What reason or reasons could the defendant give for not disclosing the relationship once he knew of it? In his evidence he said that it was because he did not sense any conflict in the position, that he was honestly doing his best by the Government and that he had no interest in Onclever and no social contact with the Hui brothers. He added the fact that he was about to be transferred from the GPA and that Paul Hui had only 25% of the shareholding were also minor factors affecting his decision.

I judged these reasons to be quite inadequate. As an intelligent man with thirty years in public service he cannot have been unaware of the real risk that an outsider could reasonably cry foul. The evidence of Patrick Hui, DW5, was that he was close to his brother-in-law Eric and saw him regularly. The defendant did not claim any unusual distance from his younger brother. Millions of dollars of public money was involved. Why not disclose? What was the harm in doing so? The defendant could point to no harm. He said he made a judgment and yet there was nothing in the scales against disclosure. If the prosecution was right there was something in the scales: an end to his helping hand."

84.It can be seen from this passage as a whole that the Judge was considering whether it was possible that a person with the intelligence and background of the defendant was likely to have justified, in the way he did, his decision not disclose his relationship with the Hui brothers. Inevitably one of the factors which would have been considered by the defendant would have been the public's perception of the matter which of course was one of the main factors underlying the guidelines given to civil servants.

85.This was a perfectly legitimate matter for the Judge to weigh in the balance in determining the defendant's credibility.

86.The second matter complained of also arises out of an observation made in this passage. This is the reference to there being no harm in making the disclosure of the relationship.

87.Again this was an entirely proper matter for the Judge to consider. As implied in the passage as a whole, if the defendant was innocent of any impropriety there was no reason whatever why he should not disclose the relationship. This constituted a further reason for rejecting the defendant's explanation and thus for calling in question his overall credibility.

88.The third observation complained of occurs on the next page of the Reasons for Verdict where the Judge was considering the defendant's evidence that he had "tried everything" to ascertain whether he should make disclosure. The Judge observed that all that was necessary was for the defendant to seek directions from his superior officer. Then he would be "safe and beyond criticism". It is these last words which are the subject of the complaint. We consider that all the Judge was doing was stating the obvious. No reason was given by the defendant for not taking this very simple precaution which realistically constitutes a further reason to doubt his credibility.

89.This ground inevitably fails.

Ground 9

90.In ground 9 it is contended that there was a material irregularity in that the Judge gave the appearance of being biased against the defendant's trial counsel, Mr Chandler. The passage about which complaint is made appears at p 69 of the appeal bundle.

"Abuse of the process

No case with Mr. Chandler in it would be complete without an application for a permanent stay on the basis that to continue the proceedings would abuse the process. We started without one, but on the second day of the trial Mr. Chandler told me that an ICAC officer had, to use his words, "uplifted his instructions from the Bar table" and was about to walk out of court with them.

The officer was called to explain that he had picked up the papers inadvertently thinking they belonged to the prosecution; that at the material time members of the defence team were present in court; that he held the papers for but a short time and that he had no opportunity to read them and that he did not read them. Before walking into court the officer had been in conference with counsel for the prosecution and other officers. I was sure that there had not been time to read the instructions, even if he had been minded to do so. It was never suggested to the officer that he had in fact read them. No matter what the officer's intention was my finding put an end to the point as no harm had been done.

Mr. Chandler did not give up. He put his application on the basis that, even if the instructions had not been read, there had been an unlawful seizure of privileged material and that fact alone breached his client's right to a fair trial. Tempting though it is to resort to adjectives, I will limit myself to a simple verb and say that I rejected this argument. I did so as I was sure that the defendant could still have a fair trial.

Whilst I was prepared to deal with the application on the hypothetical basis that the officer may have had a mischievous intention, I wish to say that I did so only in order to limit the argument and evidence to what mattered. From all that I heard of the incident I was sure that the act of picking up the instructions was innocent and inadvertent."

91.All of this short section has been included so as to illustrate two points.

92.The first is the frivolous nature of the complaint which Mr Chandler had made. The mere fact that an ICAC officer had mistakenly picked up some of the defendant's papers could not possibly justify an application for a permanent stay of the proceedings. It is perhaps understandable that the Judge was vexed by the application and expressed himself in the way he did.

93.However, notwithstanding this it can also be seen from this passage that although the Judge may have exhibited his irritation with Mr Chandler, ultimately he weighed and considered the application, and adjudicated upon it, in an impeccable manner. There is no merit whatever in this ground.

Ground 10

94.Ground 10 is in these terms:

"There was a material irregularity in the trial in that the learned trial judge while adverting to the fact that 'the work generally required of Onclever was fairly basic; that it was not unreasonable to think they would be able to do it satisfactorily; that the company did in fact perform satisfactorily; they did so by having won the tenders by being the lowest bidder; there was no evidence of the [Applicant] receiving any consequential advantage.' failed to take proper account of those matters in determining the reasonableness of the conduct of the Applicant and in determining the impact of his conduct on the public interest."

95.In his written submissions Mr Bruce makes the point that there was no evidence of any benefit accruing to the defendant. Nor was there any question of corruption.

96.In our view, this altogether misses the gravamen of these offences. The Government is concerned with having a fair and transparent scheme for tendering for work on public contracts. It is a matter calling for "condemnation and punishment", to adopt the words in Dytham, when the actions of a senior Government officer, who is placed in an influential position of trust, abuses that trust and acts in such a way as to give an advantage to an individual tenderer or potential tenderer which must by its very nature redound to the disadvantage of its competitors.

97.We further consider that such conduct does amount to corruption. The receipt of a bribe or an advantage is not an essential ingredient of corruption in its broad and general sense. A deviation from fidelity in the discharge of a person's duty can amount to corruption.

98.It has to be added that the Judge was correct in stating that the fact that the Government may have suffered no loss was irrelevant to the offence. The gravamen of the offence was that the defendant had been instrumental in bringing about a situation whereby there was not a level playing field for all the parties who wished to tender for these contracts.

99.Mr Bruce made the further point that the wording of the said Civil Service Branch Circular on the subject of conflicts of interest, which was exhibit 8 in the proceedings, was misleading. It referred to the fact that if the guidelines were not adhered to this might lead to disciplinary proceedings being instituted. There was nothing in the circular to suggest that in addition to this, criminal proceedings may be commenced.

100.Leading on from this Mr Bruce submitted that what the Judge had failed to do was to consider whether the essential requirement of being satisfied that the conduct in question should be condemned and punished had not been specifically addressed by the Judge.

101.There is nothing in this point. It was very obvious from the facts as found by the Judge that the defendant's conduct was such as to squarely bring it within the charges as framed. The fact that no reference is made in the circular to possible criminal sanctions is of no significance.

Ground 11

102.Ground 11 deals with the observations made by the Judge in relation to the defendant's good character and the extent of his propensity to commit the crimes alleged. In particular, exception is taken to a passage at p 67 of the appeal bundle.

"Let me just add that factors about Onclever being up to the work and cheap and there being no financial loss and some gain to the Government and the like miss the point. The dishonesty attached to qualification and the opportunity to quote and not to the consequences of those matters. Such considerations in fact make it the more likely that a man of good character would commit such crimes, as such a man may the more readily fall to the temptation to help his own when he knows that he harms no other. He may choose to justify his conduct to himself thereby, but what he is justifying is what he must know to have been dishonest." (Emphasis added.)

103.What the Judge appears to be saying in the passage is that when a man is of good character he may wish to justify to himself the fact that he is assisting his relatives when it appears to him that his action both helps his relatives and is at the same time beneficial to his employer, the Government.

104.It may be said that this reasoning is somewhat convoluted and that it may even have given rise to a wrong impression that he had reversed the rule on propensity. However, the issue which has to be addressed is whether the Judge's reasoning on the subject illustrated a misunderstanding of the facts or the law such as to indicate that his overall assessment of the position was in any way flawed.

105.We do not consider that to be the case. Overall the Judge has fully understood the basic issues and has approached the defendant's evidence on the basis that he was of hitherto excellent character and has supplied compelling reasons for the conclusions he reached.

106.It is plain that the Judge was reasoning with the argument why the defendant, a man of good character, would have dishonestly favoured his relatives. A person of bad character might not seek to justify his actions but a person of good character may be more inclined to justify what he does. In the event, the defendant did justify to himself what he was doing.

107.In particular, it is transparently clear from reading the Reasons for Verdict as a whole that the Judge was fully mindful of the fact that up to the date of the commission of these offences the defendant was a man of exemplary character and that he understood and faithfully applied the proper test regarding both credibility and propensity in his evaluation of the evidence and the defence case. Indeed a large portion of the earlier part of the Reasons is devoted to the question whether in all the circumstances the defendant could honestly have believed that he was justified in not disclosing to his superiors his connection with the Hui brothers. The Judge said at respectively p 59 and p 67 of the bundle as follows:

"Of course I did not forget the defendant's good character when dealing with his credibility, nor when considering the likelihood of his committing such crimes. I well remembered the terms in which his character witnesses spoke of him. The picture was of a man of real probity with the highest moral standards. I put this in the scales but such was the weight of the matters I have discussed, it could not save him from an adverse finding on his credibility. It was to be noted in this regard that it was reasonable to expect a man of this character to be scrupulous in the matter of disclosure of a conflict of interest in his professional life. It made his failure to disclose the more colourable."

"The defendant enjoyed a high moral reputation and character. There can be no real question of his not realising that what he did was dishonest and I find that he must have so realised."

108.These directions are not open to criticism and they put into proper perspective the passage about which complaint was made. Ground 11 fails.

Ground 13

109.Mr Bruce accepted that the matters referred to in ground 13 over and above the contention that the convictions were unsafe and unsatisfactory were sufficiently canvassed in ground 10 which has already been dealt with.

Conclusions

110.For the above reasons, both the appeal and the application were dismissed.

Representation:

Mr M C Blanchflower SC, SADPP & Mr Gavin Shiu SGC, of the Department of Justice, for the respondent.

Mr Andrew Bruce SC & Mr Raymond Pierce, instructed by Messrs P C Woo & Co, for the defendant.

Remarks:
Appeal by the Defendant to the Court of Final Appeal. Appeal dismissed. Please refer to the Appeal Judgment FACC000001/2002.