SECRETARY FOR JUSTICE v. CHAN CHI WAN STEPHEN AND ANOTHER

CACC 103/2012 and
CACC 183/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 103 OF 2012

(ON APPEAL FROM DCCC NO. 1214 OF 2010)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 183 OF 2014

(ON APPEAL FROM DCCC NO. 1214 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  The applicants (Chan and Tseng) appeared before the trial judge on one charge of conspiracy to accept an advantage and two further charges of offering and accepting an advantage as alternatives to the conspiracy charge.

2.  On 2 September 2011, the applicants were acquitted of all charges on the basis that what Chan did which constituted the subject matter of the charges was not “in relation to the principal’s affairs or business” (the 1^st Decision).

3.  The prosecution appealed, by way of Case Stated, against the 1^st Decision. On 21 November 2012, the Court of Appeal (Yeung VP, Cheung and Yuen JJA) quashed the 1^st Decision, ruling that the trial judge had wrongly concluded that what Chan did was not “in relation to the principal’s affairs” (the First Judgment).  The Court of Appeal further ruled that on the evidence, what Chan did was “in relation to the principal’s affairs” and directed that the trial be resumed before the trial judge to further consider the issue of whether the applicants could rely on the defence of “reasonable excuse”.

4.  On 7 March 2013, at the conclusion of the resumed trial, the trial judge handed down his decision and again acquitted the applicants on the basis that their defence of “reasonable excuse” had been established (the 2^nd Decision).

5.  The prosecution further appealed, by way of Case Stated, against the 2^nd Decision.  On 26 October 2015, the Court of Appeal (Yeung VP, Yuen and Pang JJA) quashed the 2^nd Decision and remitted the case back to the trial judge to enter convictions against the applicants because they had failed to establish the defence of “reasonable excuse” (the Second Judgment).

6.  On 11 November 2015, Chan filed a Notice of Motion applying for a certificate under Section 32(2) of the Hong Kong Court of Final Appeal Ordinance that the following points of law of great and general importance are involved in the First and Second Judgments, namely:

i. In the context of a section 9 offence under the Prevention of Bribery Ordinance, Cap 201, Laws of Hong Kong, how should the element “in relation to the principal’s affairs or business” be interpreted having regard to the determination of the Privy Council in The Commissioner of ICAC v Ch’ng Poh [1997] 1 HKLRD 652? (The 1^st Question)

ii. In the context of a section 9 offence under the Prevention of Bribery Ordinance, Cap 201, Laws of Hong Kong, what is the proper approach the Court should adopt in considering the defence of reasonable excuse? (The 2^nd Question)

7.  On 12 November 2015, Tseng filed a Notice of Motion making a similar application.  Apart from the 1^st and 2^nd Questions, Tseng raised a further question, namely:

On a charge of conspiracy to commit a section 9(1) or (2) offence under the POBO, does the prosecution have the persuasive burden of proving an agreement to offer or accept an advantage “without reasonable excuse”? (The 3^rd Question)

8.  The 1^st Question was directed at the First Judgment which was handed down on 21 November 2012 and the application concerning the 1^st Question was seriously out of time.  The 2^nd and 3^rd Questions were directed at the Second Judgment which was handed down on 26 October 2015 and the application concerning the 2^nd and 3 questions was out of time by three to four days.

9.  Neither Chan nor Tseng had filed any evidence to explain the delay, but in the Reply to Respondent’s Submissions, Mr Joseph Tse SC, on behalf of Chan, suggested that there were special circumstances justifying the delay.

10.  We have considered the facts of the case and the parties’ submissions carefully.  Quite apart from the delay, we are not persuaded that we should grant the certificates as sought.  The principles of law relating to the three questions are well established.  Questions 1 and 2 are fact-sensitive and Question 3 is not reasonably arguable. We are not satisfied that those questions should be certified as points of great and general importance.

11.  The applications for a certificate under Section 32(2) of the Hong Kong Court of Final Appeal Ordinance by the applicants are dismissed.  We further order that the applicants pay the respondent’s costs of the applications to be taxed if not agreed.