B v. The Commissioner of the Independent Commission Against Corruption

FAMC No. 29 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCCM NO. 8 OF 2009)

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Between:

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

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Mr Justice Bokhary PJ :

We certify the points of law raised by the three questions handed up by counsel for the applicant, which questions will be scheduled to this determination when it is transcribed.  Considering those points reasonably arguable, we grant the applicant leave to appeal to the Court of Final Appeal under point of law limb of s.32(2) of the Court’s statute for those points to be pursued on the applicant’s behalf.

Schedule

(1) Does an offer, in Hong Kong, of “advantages” to a foreign public official of a place outside of the Hong Kong Special Administrative Region (“the place”), as an inducement to or reward for or otherwise on account of his : (a) doing or forbearing to do, or having done or forborne to do, any act in relation to his public duties in the place; or (b) showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his public duties in the place, constitute an offence contrary to section 9(2) of the Prevention of Bribery Ordinance (Cap.201) (“POBO”) triable by the courts of the HKSAR? (and where the “advantages” come within the meaning of “advantages” in s.2(1) of the POBO).

(2) If a person agrees with another person or persons to offer, in Hong Kong, “advantages” in the circumstances described in Question 1, would that constitute an offence contrary to s.159A of the Crimes Ordinance (Cap.200) triable by the courts of Hong Kong?

(3) If the answers to Questions 1 and/or 2 are “no”, would the Court of First Instance have jurisdiction to issue an order pursuant to s.14(1)(d) of the POBO in respect of an investigation of the circumstances described in those Questions?

Mr Michael Thomas SC, Mr Michael Blanchflower SC and Ms Maggie Wong (instructed by Messrs David Lo & Partners) for the applicant

Mr Alex Lee (of the Department of Justice) for the respondent