HKSAR v. TSANG YAM KUEN, DONALD

CACC 55/2017

[2018] HKCA 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 55 OF 2017

(ON APPEAL FROM HCCC NO 484 OF 2015)

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J U D G M E N T

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

1.  The applicant seeks certification by this Court under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 of what are said to be three points of law of great and general importance arising out of the Court’s decision of 20 July 2018. The Court having indicated that it would deal with the application on paper, no issue is taken by the parties with that course.

2.  Although there are a number of separate questions articulated within the three points of law, the first point may be characterised as an issue as to the mens rea of the offence of Misconduct in public office; the second as an issue concerning the seriousness in the offence; and the third as an issue dealing with the effect of an apparent failure by counsel to correct an omission in the judge’s summing‑up.

3.  Before addressing these issues, we might observe that the law relating to Misconduct in public office has been well settled in this jurisdiction since the decision of Shum Kwok Sher v HKSAR[1] in 2002, and its subsequent reformulation in Sin Kam Wah & Another v HKSAR[2] in 2005.  Indeed, these two authorities have had a significant influence on the jurisprudence and approach of the courts to the corresponding offence in the United Kingdom, Canada and Australia.  The elements of the offence, which were set out in the judgment of this Court at paragraph 40, as they were by the trial judge, derive from paragraph 45 of the judgment in Sin Kam Wah.

4.  With regard to the issues identified by the applicant, it seems to us that they do not raise any new or novel points of law of great and general importance concerning the offence of Misconduct in public office as much as challenge the application of already well established principles of law to the facts of this particular case.

5.  Nonetheless, we shall deal with each point of law in turn beginning with the third point of law, since it is presumably linked with the second question posed under part (i) of the first point of law.

The third point of law

To what extent does a supposed failure by Defence Counsel justify the omission of a direction to a jury on the central fault element of an offence?

6.  The question is, with respect, a puzzling one, not least because of the averment of a supposed failure on the part of defence counsel to correct the judge’s directions.  If the question is intended to suggest that there was in fact no failure at all because there was a deliberate tactical decision not to correct the judge, but to take advantage of the point in the event of an appeal, then we would deprecate the tactic.  We shall assume that was not the meaning behind the question and, certainly, that was not the direction of the point argued upon appeal, nor was it ever canvassed in argument that leading counsel deliberately chose to stay silent in relation to what she perceived to be a lacuna in the judge’s directions.  Had that been the defence tactic, we would have had to look at the summing‑up as a whole to see whether the issues were otherwise fairly presented to the jury; and, in such circumstances, such a manoeuvre might well have engaged a consideration of the proviso.  Given the evidence in the present case, which we described as being “as formidable as it was compelling”, we do not think such a tactic would have advanced the applicant’s cause, since the summing‑up was as a whole extremely fair to the defence.

7.  If, on the other hand, the reference to a supposed failure is intended to convey the impression that this Court found there was some forensic failing on the part of defence counsel which counsel does not accept, we wish to make clear that this Court was not suggesting, nor did Ms Montgomery QC ever concede, that she negligently or otherwise wrongly failed to do what she ought to have done.

8.  It was the judgment of this Court that there was no omission at all on the part of the judge, because the direction now said to have been omitted added nothing in the context of the issues in the case; and all parties, including defence counsel, recognised as much: see paragraph 117 of this Court’s judgment.  It would, with respect, have been extraordinary if the defence team at trial, comprising three leading counsel (one having been appointed since the trial), had somehow failed to spot the alleged “omission” on the first day of the summing‑up, given the daily provision to all parties of a Live Note transcript, in a summing‑up that ultimately took three days to complete.  We further commented, and it was no more than a comment, that such a failure on her part, be it deliberate or negligent, would have been rather surprising given the comments of the Court of Appeal in respect of Ms Montgomery’s grounds and submissions in HKSAR v Hui Rafael Junior & Others[3], made almost exactly one year earlier.  The point we were seeking to make is that all parties to the trial knew that the direction now said to be so vital was in fact unnecessary in the circumstances of a summing‑up tailored to the issues at the trial.

9.  We reject the whole basis of the third point of law averred, since there was in this case no failure by defence counsel, whether supposed, deliberate or negligent, because there was no omission to correct.  Viewed as a whole, the summing‑up was extremely favourable to the applicant, it made clear to the jury in simple, uncomplicated and repeated terms what the mens rea of the offence was in the context of the present case and, with respect, once the jury were satisfied that someone in the applicant’s position had deliberately concealed what he must have known was a conflict of interest, his intention was laid bare.

10.  We turn to the first point of law averred and the series of questions formulated within it.

The first point of law

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

(i) 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’?

(ii) In circumstances where the misconduct in question is premised upon an allegation of failure to declare or disclose, or by 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?

11.  The judge directed the jury on the five elements of the offence set out in Sin Kam Wah, including the second element of wilfulness.  He directed the jury that “wilful” meant “deliberate” and gave the jury a clear and helpful exposition of what “deliberate” in this context meant. That was sufficient and the jury could have been in no doubt from the deliberate concealment of his dealings with Wong that the applicant, at the head of the Government after a lifetime of public service, not only must have known, but did know, that he had placed himself in a serious conflict of interest where his duties as a public official were hopelessly compromised: see paragraph 123 of the judgment of this Court.  In our view, part (i) of the first point of law is detached from the reality of the evidence and the jury’s obvious findings on that evidence, following the judge’s clear directions, and does not realistically arise in the circumstances of this case.

12.  In respect of part (ii) of the first point of law, the jury were given a full recital of the relevant evidence which bore on the applicant’s duty to disclose.  Yet the question is, again with respect, wholly unrealistic and divorced from the evidence and findings in the case.  The applicant’s case, as put forward not in live evidence but by adoption of what he had said in the Beautiful Sunday broadcast of 26 February 2012, was that he did not think he had any duty to disclose his dealings with Wong.  For reasons we explained in our judgment, this assertion must have been rejected by the jury, as we understood Ms Montgomery was minded to concede to this Court[4].  We do not see, therefore, how this question arises in the circumstances of this case.

The second point of law

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?

13.  The second point of law, concerning the seriousness of the offence, is posited by two questions, the relationship between which is not obvious.  However, we shall deal with each in turn.

14.  In respect of the first question, we were at pains in our judgment to make clear, as have other courts including the Court of Final Appeal in HKSAR v Hui Rafael Junior[5], that the context in which the element of seriousness is to be assessed in cases of Misconduct in public office is critical.  Ms Montgomery sought to suggest in argument that the courts of England and Wales, notably in R v Chapman[6] and R v France[7], have required more elaborate directions and assistance to the jury in certain cases.  That may be so where there are competing public interests at play.  In this case, however, the applicant did not suggest there was any competing public interest in deliberately concealing, or failing to disclose, his dealings with the man who was the beneficiary of his decision.  Moreover, he elected not to give any evidence to explain why he might have done what he did.  As we said in our judgment, we could not conceive of any public interest that might have been enhanced by the concealment of the applicant’s relationship with Wong, and none was put forward in evidence by the applicant: see paragraph 143 of the judgment of this Court.  This question simply does not arise in the circumstances of this case.

15.  As for the second question posed under the issue of seriousness, neither the question nor the argument in support indicates with any specificity or elaboration what conclusions this Court drew which it should not have drawn, applying its very limited test in the circumstances of the failure of the jury to agree upon its verdict on Count 1[8].  Indeed, the applicant’s written argument is completely silent on the second question posed.

16.  We find this second question rather abstract and wholly unrealistic in the context of the evidence in the case.  The defence relied upon lease agreements, which on even the most benign interpretation of the law of hearsay in criminal evidence, were inadmissible save for the limited purposes to which we referred in our judgment.  As for the assertions made in the Beautiful Sunday broadcast, they were clearly rejected by the jury following a very favourable direction from the judge that if they thought what the applicant had said might be true, then they should acquit.

17.  It has not been suggested how this Court was wrong in its approach to the evidence, and we cannot see how this question arises for consideration in the circumstances of this case.

Conclusion

18.  For the above reasons, we decline to certify any of the points of law, and the questions posed thereunder, which are said to be of great and general importance.  In our judgment, they simply do not arise in this case, for reasons we explained at some length in the judgment of the Court at the appeal.  Nor do we regard them as points of law of great and general importance.

Costs

19.  The respondent seeks an order for the costs of the appeal, pursuant to section 13 of the Costs in Criminal Cases Ordinance (“the Ordinance”), Cap 492 and, in the event that this application for a certificate is refused, an order for costs under section 13B of the Ordinance, together with a certificate for three counsel[9].

20.  The applicant was refused leave to appeal on all of his grounds of appeal against conviction and the appeal dismissed.  However, he was granted leave to appeal in respect of sentence and his appeal allowed to the extent that his sentence of imprisonment was reduced from 20 months to 12 months.  His appeal against the Costs Order made by the trial judge was also allowed to the extent that the Costs Order was upheld but reduced.  The Court’s decision in respect of the appeal against the Costs Order runs to some 20 pages.

21.  We think there would be some justification for an order for costs, given that this Court found no merit and refused leave to appeal in respect of all grounds of appeal against conviction, following a Costs Order which had been made in the circumstances we described in our judgment.  However, we must also acknowledge that leave was granted on the appeal against sentence and the Costs Order reduced, so to that extent the appeal was successful.

22.  In all the circumstances, we consider that we should make no order as to costs in respect of the appeal hearing.

23.  However, we see no reason why there should not be an order for costs in respect of this application for a certificate, which in our view was not only without merit but, given the plethora of disparate questions posed under each point of law, was also without the distillation and focus that is expected of such applications.  Accordingly, there shall be an order under section 13B of the Ordinance for the costs of the respondent to be taxed if not agreed, together with a certificate for two counsel.

[1] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381.

[2] Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192.

[3] HKSAR v Hui Rafael Junior & Others (unrep., CACC 444/2014, 16 February 2016), at paragraph 230.

[4] At paragraph 88 of the judgment of this Court.

[5] HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264, at paragraph 87.

[6] R v Chapman [2015] QB 883.

[7] R v France [2016] 4 WLR 175.

[8] At paragraph 78 of the judgment of this Court.

[9] The respondent was represented by three counsel on the application for leave to appeal but two counsel on this application for a certificate.