HKSAR v. HA BUT YEE

CACC 104/2023, [2025] HKCA 517

On Appeal From [2023] HKCFI 1208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 104 OF 2023

(ON APPEAL FROM HCCC NOS 290 AND 319 OF 2016

(CONSOLIDATED))

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.  On 14 March 2025, the Court handed down its judgment in HKSAR v Ha But Yee (Unrep., [2025] HKCA 274), unanimously dismissing the applicant’s appeal against the confiscation order made against him. The applicant now seeks a Certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that three points of law of great and general importance are involved in the decision of this Court. The points of law are very elaborate and are as follows:

“1. In confiscation proceedings involving sentencing under the Criminal Procedures Ordinance, Cap 221 (‘CPO’), and confiscation under the Organized and Serious Crimes Ordinance, Cap 455 (‘OSCO’), how should these two legal regimes interact? In particular:

(a) To what extent, if any, should the Summary of Facts accepted for sentencing upon conviction of an offence under CPO, be binding on the subsequent OSCO proceedings for confiscation?

(b) In the event that the Summary of Facts accepted for sentencing for conviction under CPO, conflicts with the facts found pursuant to OSCO inquiries and determinations for confiscation, which statutory regime shall prevail?

2. In the context of an offence under section 9(2)(a) of the Prevention of Bribery Ordinance (offence of offering an advantage to an agent), how is the amount of the relevant proceeds, defined by OSCO as ‘any payments or other rewards received by him in connection with the commission of that offence,’ to be determined in the following scenarios:

(a) In respect of the ‘commission of [the] offence’ element, where the offeror’s proven corrupt purpose was to induce the agent to supply information which ‘may assist’ his trading with the principal, is the prosecution required to establish that the offeror intended that information to be unlawful in nature, in that it would be confidential and would injure the interests of the agent’s principal?

(b) In respect of the ‘in connection with’ element, where the agent has supplied ‘may assist’ information to the offeror,

(i) Is the prosecution required to establish that such ‘may assist’ information was unlawful in nature, in that it was confidential and would injure the interests of the agent’s principal?

(ii) Whether the prosecution must further prove that the ‘may assist’ information has actually assisted the offeror’s trading in the sense that: A) the offeror has made use of that information; B) such use has resulted in actual gains to the offeror; and C) such assisted gains are quantifiable (and quantified), to determine the amount of his proceeds?

(c) Where the prosecution alleges that the offeror’s corrupt purpose was to induce the agent to provide unparticularised ‘continuous assistance’ (i.e. ‘continuous assistance’ of an unknown nature) in his trading with the agent’s principal, whether the prosecution must still prove, mutatis mutandis, matters in paragraphs (a) and (b) above for determining the amount of his proceeds?

3. Where: A) the offeror pleaded guilty only on the basis of reputational damage to the principal, a basis which could not have generated any ‘payments’ to the offeror; and B) his corrupt purpose (i.e., to induce corrupt information or assistance from the agent) would have increased the trading turnover and enabled the principal to derive from the arrangement a substantial benefit, and therefore would have been congruous with its interests:

(a) Whether the principal’s lack of knowledge of the bribes could have precluded its tacit consent to the arrangement to have the legal effect of exonerating the offeror from the bribery charge, and permitting him to retain his gains?

(b) Save to the extent of the plea of guilty on the basis of reputational damage, whether the congruity of the offeror’s corrupt purpose with the principal’s interests would have exonerated the offeror from liability under the bribery charge?”

This application has been decided on the papers, having received written submissions from both parties.

2.  A great deal of time and energy has been expended on this appeal, yet its resolution was very simple. The applicant had pleaded guilty to an offence, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”). Section 9(2) of POBO is a specified offence under Schedule 2 of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”). It must have been obvious to the applicant and those advising him, not least given the sheer enormity of the sums involved in the offence to which he pleaded guilty, that a confiscation order would in due course “inevitably”[1] be made. Moreover, it would also have been obvious as to the basis of such an application.

3.  The applicant pleaded guilty to a charge with the benefit of advice from leading counsel, and formally agreed a Summary of Facts relating to that charge. Those facts were binding on the applicant and provide the basis of the plea to which the confiscation order relates.

4.  Accordingly, we do not see that Question 1 is remotely, let alone reasonably arguable, nor does it involve a point of great and general importance. The applicant was bound by his own admissions upon plea, which form the basis of the confiscation order.

5.  In respect of Question 2, the question conjures up issues, some theoretical and esoteric, which did not and do not, with respect, arise. As for the meaning of “proceeds”, the matter has been fully explained by the Court of Final Appeal in HKSAR v Li Kwok Cheung George (2014) 17 HKCFAR 319. Those proceeds and their extent were set out and admitted in the Summary of Facts agreed to by the applicant. The point does not arise and is not arguable.

6.  As for Question 3, these issues simply do not arise on the facts of the case or from the Court’s judgment. The applicant appears to be arguing that he should not even have been convicted of the charge, to which he pleaded guilty, in its accepted and properly understood sense.

7.  The Court declines to certify any of the three questions posed and the application is refused.