HKSAR v. LEUNG KWOK HUNG

Press Summary (English)

Press Summary (Chinese)

DCCC 546/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 546 OF 2016

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REASONS FOR VERDICT

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INTRODUCTION

1.  The trial was conducted partly in English and partly in Chinese.  However, as the case involves a number of legal issues the submissions for which were made in English, the parties have agreed that this verdict should be given in English.

2.  The defendant stands trial before this court for one charge of misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221.  The particulars of offence read as follows:

“LEUNG Kwok-hung, being a public official, namely a member of the Legislative Council (“LegCo”) of the Hong Kong Special Administrative Region, between the 22^nd day of May 2012 and the 23^rd day of June 2016, both dates inclusive, in Hong Kong, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully and intentionally misconducted himself by failing to declare or disclose to, or by concealing from LegCo his acceptance of a payment of $250,000 Hong Kong currency from LAI Chee-ying through Mark Herman SIMON on the 22^nd day of May 2012.”

3.  At this juncture, it is important to note the way in which the charge is pleaded: -

(i) there is not only a conspicuous absence of any allegation of corruption in respect of the payment, but also an absence of any allegation that the payment was attached with conditions.  It is also not the prosecution case that the payment was intended to make the defendant feel obliged to be favourably disposed to either Mr Lai or his business.  In this regard, the present case is significantly different from the case of HKSAR v Hui Rafael Junior;[1]

(ii) the alleged misconduct was one of nonfeasance (rather than misfeasance), namely the defendant’s alleged non-disclosure of his receipt of the payment.  It is not the prosecution case that the defendant, as a LegCo Member, could not legally accept the money.  Barring any corruption, he could.  There were no rules against it, at least none has been suggested by the prosecution.  The relevant provision in the Rules of Procedure (“ROP”) of LegCo which forms the plank of the prosecution case, namely Rule 83, only required the defendant to register in a prescribed form financial sponsorships which he received as a Member, directly or indirectly, from any person or organization.  This, the prosecution says, the defendant had failed to do;

(iii) the nonfeasance is said to be “intentional” and the prosecution has nailed its colours to the mast by confirming in court that they do not rely on “recklessness” as a basis of conviction; and

(iv) the prosecution says that the alleged misconduct had deprived the public’s right to know about any actual, perceived or potential conflict of interest and had undermined the public confidence of the effective discharge of the office by LegCo Members and in this sense the alleged misconduct was a serious one.

4.  Having said that, there is no criticism, expressed or implied, from this court as to the way the prosecution has chosen to plead and conduct its case.  Far from it, this court has obtained great assistance from both prosecuting and defence counsel.  Furthermore, if I may say so, the prosecution team has conducted the trial and presented the available evidence with customary professionalism and fairness.  However, since this case has attracted some publicity, it is desirable for this court to highlight the aforesaid salient features at the outset so that there would not be any misunderstanding as to the exact nature and scope of the offence charged.

5.  There is another important point to note about the prosecution case.  As a matter of evidence, the prosecution relies on the defendant’s knowledge of and participation in the LegCo debate of a motion on 22 January 2014.  That motion was about editorial independence and autonomy in Hong Kong.  During the motion debate the name of Mr Lai and “Apple Daily” (a newspaper over which Mr Lai had control) were mentioned in passing by Members other than the defendant.[2] The motion was not proposed by the defendant and there is nothing to suggest that the defendant’s speech or vote on the motion was in any way influenced by the alleged payment from Mr Lai.   Moreover, the prosecution is at pains to emphasize that there is no challenge to the propriety or otherwise of the defendant’s speech or vote on that occasion. 

6.  On the other hand, the prosecution says that the motion must have at least reminded the defendant of the need to register with LegCo his payment of $250,000 from Mr Lai and the defendant’s failure to do just that even after the motion adds to the seriousness of the non-disclosure.  Other factors which the prosecution says also contribute to the seriousness of the alleged misconduct include the importance of the office of a LegCo Member and the responsibility of the officer-holder, the size of the alleged payment as well as the fact that the defendant had failed to make disclosure in spite of the numerous opportunities available for him to do so over the 4-year period between the date of payment (22 May 2012) and the date of his arrest (23 June 2016).

7.  As can be seen from the way the trial was conducted, the major factual issue for this court to decide is whether the $250,000 from Mr Lai was (a) a donation (as the prosecution says) to the defendant personally; or (b) a donation (as the defence says) to the League of Social Democrats (“LSD”) of which the defendant was the Chairman.  However, before I evaluate the evidence and deal with the factual issues, it is necessary for me to give reasons for my decision on two pre-trial issues raised by the defence which are fundamental to the trial.

PRE-TRIAL ISSUES

8.  Before the trial proper, on 23 May 2017 counsel for the defendant, Mr Martin Lee, SC (and with him Mr Hector Pun, SC, Mr Carter Chim and Mr Anson Wong) raised before this court two preliminary legal issues, namely: -

(i) whether this court has jurisdiction to try the Defendant in respect of the offence of MIPO as set out in the Charge (“the First Issue”); and

(ii) whether certain documents of the Legislative Council (“LegCo”) (to be produced through a number of LegCo officers) which the Prosecution intends to adduce at trial are admissible (“the Second Issue”).

9.  The defence submission as regards the First Issue was based on the Common Law doctrine of “parliamentary privilege” and there were two limbs to it, namely “freedom of speech” in and “exclusive cognisance” of LegCo.  As regards the Second Issue, it was submitted that the documents in dispute were covered by “parliamentary privilege” as well as ss 3 & 4 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“LCPPO”) so that they were not admissible as evidence in court.

RULING ON PRE-TRIAL ISSUES

10.  Having considered submissions from the prosecution and the defence, both written and oral, on 31 May 2017 this court ruled that: -

(i) as regards the First Issue, this court has jurisdiction to try the Defendant in respect of the charge of MIPO that he is facing, there being no infringement of any “parliamentary privilege” as submitted by the defence; and

(ii) as regards the Second Issue, the evidence of the five LegCo officers and the LegCo documents (which consist of enclosures (14) to (27) attached to the Prosecution’s Submission and List of Authorities on Preliminary Legal Issues) are admissible for the limited purpose of proving what was done and said in LegCo meetings or its proceedings as a matter of history.  They are not admissible for the purpose of proving that those words were improperly spoken or that they were spoken with an improper purpose.  This is without prejudice to any objections other than “parliamentary privilege” which the defence may raise against their admissibility during the course of the trial.  Moreover, if during the trial there is any dispute that the intended use of the said evidence or documents would in fact go beyond the terms of this ruling, or in any other way infringe the protection offered by ss 3 or 4 of LCPPO, the court would re-visit the issue and give further rulings or directions.

11.  I said that the reasons for the above ruling would be given in due course.  This, I now do.

REASONS FOR THE RULING ON PRE-TRIAL ISSUES

Freedom of speech and debate in LegCo

12.  The following articles of the Basic Law are pertinent to the pre-trial issues raised by the defence:

Article 75

“The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.”

Article 77

“Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.”

13.  Although Article 77 refers only to “meetings of the Council”, it was held by Andrew Cheung J (as he then was ) in Cheng Kar Shun and Anor v the Honourable Li Fung Ying & Ors[3] that, reading in its context, the article clearly intended to also cover meetings of its committees.  His lordship said,

“As a matter of language, ‘Legislative Council’ in art 73 is quite clearly capable of meaning the Legislative Council functioning as a full body or the Council functioning through committees, as the individual context may require, just as the term is capable of such interpretation under arts 62(6), 77 and 78.”

14.  Apart from the Basic Law, the following provisions in LCPPO are also pertinent:

“3.  Freedom of speech and debate

There shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court or place outside the Council.

4.      Immunity from legal proceedings

No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to, the Council or a committee, or by reason of any matter brought by him therein by petition, Bill, resolution, motion or otherwise.”

15.  There can be no doubt that the protection provided by ss 3 & 4 of LCPPO is, in part at least, inspired by Article 9 of the Bill of Rights 1688 of the UK[4] which says:

“That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.”

16.  In Pepper v Hart,[5] Lord Browne-Wilkinson commented on the object of article 9 of the Bill of Rights and said as follows:

“Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech) . . . In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed.”

17.  I am of the view that, based on the fact that ss 3 & 4 of LCPPO owe their origin to article 9 of the UK Bill of Rights as well as the similarities both in purpose and in terms between the aforesaid provisions in the Basic Law and LCPPO (collectively referred to as “the Hong Kong provisions”) on the one hand and article 9 of the Bill of Rights 1688 on the other, UK case authorities on article 9 could be of assistance in the interpretation of the Hong Kong provisions.

18.  On the other hand, it is important to note that the UK case authorities on article 9 of the Bill of Rights 1688 have to be adapted to the situation in Hong Kong with caution because of the following reasons: -

(a) the Hong Kong provisions and article 9 of the Bill of Rights, though similar, are not identical;

(b) although article 9 of the Bill of Rights and s 3 of LCPPO are similar and both of them refer to “proceedings”, the former is a constitutional document and the latter is not.  Therefore, a more flexible technique of interpretation which would be appropriate for the former may not be so appropriate for the latter. The approach that I am going to adopt for the interpretation of the relevant provisions in LCPPO is the “purposive approached” as pronounced by the Court of Final Appeal in HKSAR v Cheung Kwun Yin;[6]

(c) the context in which the word “proceedings” is used in s 3 of LCPPO is also different from that of article 9 of the Bill of Rights:

(i) in article 9, it says that “proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament” and this give rise to the jurisprudence of the absolute bar against any questioning of “proceedings” of Parliament and a series of cases on the meaning of the word “proceedings” in that article; and

(ii) what s 3 says, however, is just that “freedom of speech and debate in … proceedings … shall not be liable to be questioned in any court”.  Unlike article 9, there is no express bar against “impeaching” or “questioning” of proceedings in either s 3 or s 4.  Moreover, s3 is not dealing with just any proceedings of LegCo but specifically “proceedings before a committee”. 

19.  Therefore, in my humble view whilst ss 3 & 4 of LCPPO are modelled on article 9 of the Bill of Rights, the protection provided under the two provisions may not be the same as that provided under article 9 of the Bill of Rights in that the formers appears to be more restrictive in scope than their UK counterpart, with the result that UK case authorities on the absolute bar against any “questioning” of “parliamentary proceedings” may not be not directly applicable to Hong Kong: cf the judgement of Au J in Chief Executive of the HKSAR v President of the Legislative Council.[7]  Besides, in my view in determining the scope of the protection provided by the Hong Kong provisions, the courts should be guided by the non-intervention principle as pronounced by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 1) [8]and the test of “necessity” which was adopted in that case.[9]

20.  Bearing the above caveat in mind, I now turn to consider the meaning of “proceedings” in s 3 of LCPPO.  The first thing to note is that the word has not been defined in LCPPO or the Bill of Rights 1688.  However, the word is used in LCPPO in the following ways:

●  s 2 defines “Chamber (會議廳)” as “the Chamber in which the proceedings of the Council are conducted” and “journals (議事錄)” as “the minutes of the Council or the official record of the votes and proceedings thereof”;

●  s 3 refers to “freedom of speech and debate in the Council or proceedings before a committee …”;

●  s 7(1) refers to “any proceedings or examination held before the Council or committee”; 

●  in s 16, the word “proceedings” clearly refers to a hearing or inquiry before the Council or a committee, during which a person may be asked to give evidence or to produce documents; and

●  s 17 creates an offence for any person who “creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting”.

By a plain and naturally reading of the above, the word “proceedings” in LCPPO whenever it appears clearly refers to those occasions where Members meet to conduct the business of LegCo, whether in plenary sessions or in committees.

21.  Moreover, I find the following passage from Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament[10]instructive:

“The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of article IX. An individual Member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking.” (Emphasis supplied)

22.  According to the ways in which the word “proceedings” is used in LCPPO, applying the above passage from Erskine May’s insofar as it is relevant to Hong Kong and bearing in mind that it is the freedom of speech and debate in LegCo that ss 3 & 4 of LCPPO is intended to protect, I am of the view that the phrase “proceedings before a committee” in s 3 of LCPPO refers to some formal action, including meetings, decision-makings, hearings or inquiries, of LegCo (or its committees[11]) acting in a collective capacity during the process of which speaking and debating forms an intrinsic part. 

23.  I now turn to consider the scope of the protection collectively provided by the Hong Kong provisions.  In this regard, as aforesaid I am guided by the non-intervention principle and the test of “necessity”.  Besides, I have also derived some assistance from the judgment of the House of Lords in R v Chaytor[12] and the speech of Lord Phillips (who gave the leading judgment) in particular.  

24.  R v Chaytor was a case about charges of false accounting which were laid against certain members of Parliament basing on claims they had submitted for allowances and expenses.  A major issue in that case was whether those claims for allowances and expenses formed part of the “parliamentary proceedings” and therefore were subject to the absolute privilege provided by article 9.  Lord Phillips, after a critical review of the relevant case authorities,[13] had the following to say about article 9:

“47 The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.”

25.  After a most detailed discussion, his lordship came to the conclusion that precedent,[14] the views of Parliament[15] and policy[16] all pointed in the same direction that submitting claims for allowances and expenses does not form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making.  It was further held that the submission of claims was an activity which was an incident of the administration of Parliament; it was not part of the proceedings in Parliament. 

26.  In my humble view the following principles, which I have derived from R v Chaytor, are also applicable to the Hong Kong provisions: -

(i) in determining the scope of the protection offered by the Hong Kong provisions, regard has to be given to their aim, namely the protection of freedom of speech and debate in LegCo and its committees;

(ii) the aforesaid protection is capable of being extended to cover actions outside the “proceedings” of LegCo, if those actions can be regarded as part of the “proceedings” because of their connection to them; and

(iii) whether or not the actions in question are so covered by the protection would depend on the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the freedom of speech or debate in LegCo which is its core or essential business and which the Hong Kong provisions are intended to protect. 

27.  It is well-established that the protection of article 9 is absolute and cannot be waived by Parliament: see R v Chaytor.[17]  In this regard, in view of the mandatory terms in which ss3 & 4 of LCPPO are expressed, it would appear that the protection provided by them is also absolute in the sense that the protection cannot be waived even by LegCo.  However, there are no direct case authorities on this point.     For the purpose of the present case, it is not necessary for me to decide on this issue.  I am prepared to work on the basis that the protection provided by ss 3 & 4 of LCPPO is absolute in that it cannot be waived.  However, as can be seen from the discussion below, nothing really turns on this.

Parliamentary privilege

28.  “Parliamentary privilege” is a Common Law principle which predates and is wider in scope than the Bill of Rights 1688.  Thus, in Prebble v Television New Zealand Ltd[18] at 413, [1995] 1 AC 321 at 332, Lord Browne-Wilkinson, giving the advice of the Judicial Committee of the Privy Council, said:[19]

“ In addition to art 9, there is a long line of authority which supports a wider principle, of which art 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbott (1811) 14 East 1, 104 ER 501, Stockdale v Hansard (1839) 9 Ad & El 1, 112 ER 1112, Bradlaugh v Gossett (1884) 12 QBD 271, British Railways Board v Pickin [1974] 1 All ER 609, [1974] AC 765, Pepper v Hart [1993] 1 All ER 42, [1993] AC 593.”

29.  In Hamilton v Al Fayed,[20] Lord Browne-Wilkinson, this time giving the judgment of the House of Lords, said,[21]

“The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee.”

30.  The UK Government has given a succinct explanation of “parliamentary privilege”, in the Green Paper: Parliamentary Privilege (“the Green Paper”), [22]as follows:

“15. Parliamentary privilege is a protection for the proceedings of Parliament – debates, committee hearings, votes and so forth – and only indirectly for the individuals who participate in them. It is a safeguard to ensure that parliamentarians, including the public’s elected representatives, are able to carry out their duties to the best of their ability, and that all of Parliament’s vital constitutional functions can be carried out to the highest possible standards. It is in short a necessity, just as legal professional privilege (confidentiality of discussions with clients) is a necessity, if people are to feel able to speak honestly with their lawyers.”

31.  The origin/justification for parliamentary privilege has been variously stated, including historical development, functional necessity, the constitutional doctrine of separation of powers and (in the United Kingdom) the sovereignty of Parliament.  However, in Leung Kwok Hung v President of the Legislative Council (No 1), supra, it is authoritatively held by the Court of Final Appeal, insofar as Hong Kong is concerned, that:[23]

“it is preferable now to regard the relationship between a legislature and the courts as an outcome of the application of the doctrine of the separation of powers. This doctrine is a common law doctrine which, in the case of Hong Kong, is reinforced by the constitutional separation of powers provided for by the [Basic Law].

In other words, the principle of non-intervention is only a self-restraint imposed by the courts in the exercise of jurisdiction rather than a matter which goes to jurisdiction: see Chief Executive of HKSAR v President of the Legislative Council (CA).[24]

32.  The Court of Final Appeal went on to say:[25]

“28. In construing and applying the provisions of the Basic Law, it is necessary not only to apply common law principles of interpretation but also principles, doctrines, concepts and understandings which are embedded in the common law. They include the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts. This relationship includes the principle that the courts will recognise the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes. The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind (the non-intervention principle).”

33.  The Court of Final Appeal also stressed that the principle of non-intervention is necessarily subject to constitutional requirements.[26] Thus, it was held that the courts would exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo or its President.  The test is one of necessity, namely the privilege claimed is one without which the dignity and efficiency of the legislature cannot be upheld.[27]  The courts would not, however, exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities.[28]

34.  Speaking in the same vein, Cheung CJHC, affirming the decision of Au J in Chief Executive of HKSAR v President of the Legislative Council (CA),[29] highlighted the difference between the UK position and the Hong Kong position as follows:

“24. However, in a jurisdiction like Hong Kong where a written constitution (that is, the Basic Law), rather than the legislature, is supreme, where the rule of law reigns and where the courts are given under the constitution the independent power of adjudication, this principle of non-intervention has its own inherent limit.

25. First and foremost, the supremacy of the Basic Law means that no one – the legislature included – is above the Basic Law. In other words, where a constitutional requirement under the Basic Law is in issue, even the legislature cannot act contrary to that requirement under the Basic Law. Secondly, given that the courts are given under the constitution the independent power of adjudication of the Special Administrative Region, the question of whether that constitutional requirement has been complied with or breached is a matter which it is both the power and responsibility of the courts to decide. As the Court of Final Appeal importantly pointed out in Leung Kwok Hung, paragraph 32:

‘In this respect it is important to recognise that the principle of non-intervention is necessarily subject to constitutional requirements.’”

35.  Ms Lai, SC (and with her, Mr Johnathan Lin) for the prosecution submits that “parliamentary privilege” enjoyed by LegCo and its Members are “fully set out” in the Basic Law and LCPPO.  If by this she means that the “wider principle” of Common Law referred to by Lord Phillips in R v Chaytor has been wholly replaced and therefore no longer applicable to Hong Kong, then with respect I am unable to agree.  First, even on the basis that LCPPO is a codifying statute[30] so that the starting point must be the language of its provisions, it does not automatically follow that the common law is no longer relevant: cf Sky Heart Ltd v Lee Hysan Co Ltd.[31]   Secondly, neither Leung Kwok Hung v President of the Legislative Council (No 1) nor the subsequent local case authorities following it has the effect that Ms Lai seems to be contending for.  To the contrary, it is expressly recognized by the Court of Appeal in Chief Executive of HKSAR v President of the Legislative Council (CA) that the principle of non-intervention “is an established principle of common law which is of seminal importance and high constitutional significance.”[32]

36.  Bearing in mind the aforesaid, for the present purpose I consider that the following which was said in R v Chaytor is also pertinent to the common law principle of “parliamentary privilege” as applicable in Hong Kong based on the non-intervention principle: -

(i) in determining whether the matter under consideration pertains to the internal processes of LegCo in the conduct of its business and thus falls within the sphere of “parliamentary privilege”, the court will pay due regard to any views expressed by LegCo or by bodies or individuals in a position to speak on the matter with authority; 

(ii) the common law privilege, if exists, belongs to LegCo and not to individual Members and thus only LegCo has the right to waive or relinquish it;[33]

(iii) as an analytical tool, a distinction may be drawn between an “ordinary crime” (such as theft) and a crime (such as sedition) which a Member committed by saying something in the exercise of his freedom of speech and debate in LegCo.  In relation to the latter, it would be necessary for LegCo to have exclusive authority so that LegCo’s dignity and efficiency of the legislature can be upheld.  However, in relation to the former it would not be so necessary even if the offence is alleged to have been committed entirely within the precincts of LegCo; [34] and

(iv) there are, however, criminal conducts over which LegCo and the courts have different and overlapping jurisdictions, such that LegCo may take disciplinary proceedings for contempt and the court may try the offender for the crime.[35]

37.  The above principles, I trust, are in harmony with the reservations expressed in the local case authorities as to the applicability of UK case law on “exclusive cognizance” in Hong Kong.

The First Issue

38.  Mr Lee submits that: -

(a) the Register of the LegCo Members” interests[36] (“the Register”) fall within the definition of “proceedings” in LegCo.  As such, the LegCo’s jurisdiction “to investigate and adjudicate upon an alleged wrongful failure to register” is absolute and exclusive.  In other words, it falls within the exclusive cognisance of LegCo; and

(b) the prosecution and trial of the defendant on the charge would create a “chilling effect” which parliamentary privilege is meant to eliminate.  For it threatens not only the freedom of speech of the defendant, but also that of all the other Members of LegCo, in contravention of the Hong Kong provisions.

As regards (a): exclusive authority of LegCo

39.  Mr Lee places heavy reliance on the views of the Joint Committee on Parliamentary Privilege of the House of Lords and the House of Commons (“the Joint Committee”) expressed in its 2013-2014 Report. The Joint Committee opines, somewhat categorically, that the investigation and adjudication upon an alleged wrongful failure to register an interest by a member of Parliament ought to be a matter for Parliament alone.  Thus, the Joint Committee recommends that:

“if legislation on parliamentary privilege is contemplated, it should clarify that the registers of members’ interests, and other Registers prescribed by resolution of either House, are proceedings in Parliament for the purposes of Article 9 of the Bill of Rights.”[37]

40.  It is pertinent to note that the above opinion of the Joint Committee is a response to the first instance decision of Popplewell J in Rost v Edward^[38] that the Register of Members’ Interests was not a proceeding in Parliament.  That was a case of defamation in which both the plaintiff (a member of Parliament) and the defendants (the journalist, the editor and the publisher of an article) wanted to use the Register of Members” Interests for their respective case in court.[39]  Popplewell J’s approach to the issue was that the Register of Members’ Interest fell within a “grey area” as to whether it was Parliament or the courts which should have exclusive jurisdiction.  His lordship said that in such a case:

“a court, while giving full attention to the necessity for comity between the courts and Parliament, should not be astute to find a reason for ousting the jurisdiction of the court and for limiting or even defeating a proper claim by a party to litigation before it.”

The learned judge concluded, in the absence of clear case authorities or provisions covering the matter, that the Register of Members’ Interest did not fall within the definition of “proceedings in Parliament”.  Accordingly, his lordship ruled that it was open to the plaintiff to give the evidence that he sought to do in relation to the registration of members’ interest and it was open to the defendants to challenge that evidence.^[40]

41.  Rost v Edward has been subject to serious criticism.  However, since the action was subsequently settled between the parties, there was no appeal from that judgment.  Nevertheless, the Joint Committee notes that the correctness of Rost v Edwards was doubted by the Privy Council in Prebble v Television New Zealand Ltd[41] in 1995.  The Joint Committee also notes that in the following year the effect of Rost v Edwards was reversed by the passing of the Defamation Act 1996 which specifically lists any communication with “any person having functions in connection with the registration of members’ interests’ as a proceeding in Parliament. 

42.  As regards Mr Lee’s reliance on the opinion of the Joint Committee, I have the following observations:

(a) whilst due weight should be given to the aforesaid view of the Joint Committee as to what should fall within the sphere of “internal processes” of the legislature in conducting its own business, it is the view of our LegCo, its practice and convention which have a heavier bearing on the issue that this court is asked to decide.  However, LegCo, by giving special leave for its officers to give evidence and to produce documents at this trial, obviously has not claimed exclusive jurisdiction over the issue. To the contrary, LegCo is facilitating the trial;

(b) regarding Mr Lee’s reliance on the very broad proposition made in Bradlaugh v Gosset,[42] that case has now to be viewed in the light of the qualification noted in R v Chaytor[43] and also in Chief Executive of the HKSAR v President of the Legislative Council (CA);[44]

(c) the opinion and the recommendation of the Joint Committee has to be viewed against the backdrop of article 9 of the Bill of Rights 1688 which presents an absolute bar against any impeaching or questioning of “proceedings” in Parliament in any court out of Parliament. There is, however, no such absolute bar in Hong Kong;

(d) although it is true that Rost v Edwards was criticised in Prebble v Television New Zealand Ltd, what was said by the Privy Council about that case is as follows:

“A number of the authorities on the scope of article 9 betray some confusion between the right to prove the occurrence of Parliamentary events and the embargo on questioning their propriety. In particular, it is questionable whether Rost v Edwards [1990] 2 QB 460 was rightly decided.”[45]

Therefore, the criticism of the Privy Council aimed at a different aspect of Rost v Edwards.  Furthermore, as can be seen in the discussion below, the distinction in purpose made by the Privy Council between “proving occurrence” and “questioning propriety” is in fact against Mr Lee’s submission regarding the admissibility of the LegCo documents; and

(e) it is not clear when Popplewell J ruled that the claims for privilege in respect of the Register of members’ Interests did not fall within the definition of “proceedings in Parliament,” his lordship was referring to article 9 of the Bill of Rights 1688.  If so, then his ruling would not, in my view, be pertinent to the Hong Kong provisions.  Ms Lai has disavowed any reliance on Rost v Edwards.  As such, Mr Lee’s submission on Rost v Edwards seems to involve a “straw man fallacy” in that even if the case were wrongly decided, it would not affect the prosecution’s argument in this case.  In any event, the case is not binding on this court.  For avoidance of doubt, I do not rely on Rost v Edwards either and therefore it would not be necessary for me to decide on its correctness. 

43.  Mr Lee further relies on the fact that LegCo has its own Rules of Procedure (“ROP”),[46] made pursuant to article 75(2) of the Basic Law, to regulate matters about disclosure of interests by its members and has set up a standing committee, the Committee on Members’ Interests (“CMI”), to oversee those matters.  This, Mr Lee, submits, shows that declaration of interests is an internal matter of LegCo which is “absolute and exclusive” and “cannot be questioned in law”. 

44.  With respect, I am unable to accept the above submission of Mr Lee.  First, the fact that LegCo has its own internal rules to regulate disclosure of interests by its members does not necessarily lead to the conclusion that the matter is “absolutely and exclusively” within the province of LegCo.  For example, s 45(2) of the ROP says:

“(2) The President, the Chairman of a committee of the whole Council or the chairman of any committee shall order a Member whose conduct is grossly disorderly to withdraw immediately from the Council or the committee for the remainder of that meeting; and the Clerk or clerk of any committee shall action order received by him from the Chair to ensure compliance with this order.”

At s 87 of the ROP, it says:

“The President, Chairman of a committee of the whole Council or chairman of a committee or subcommittee may order the removal from a meeting of any member of the press or of the public who behaves, or who appears likely to behave, in a disorderly manner.”

I do not considered that the above provisions mean that the courts could not deal with a person or a Member who is accused of disorderly conduct committed within LegCo’s precincts: see for example, HKSAR v Leung Hiu Yeung & Ors (transliteration).[47]  As noted above, there are matters which LegCo and the courts can have different and overlapping jurisdictions.

45.  Secondly, I am unable to agree with the broad proposition that a misconduct by a Member relating to disclosure of interest, whether trifle or serious, would inevitably be an internal matter of LegCo so that the court must abstain from dealing with it.  In this regard, I note that the charge of misconduct in public office would not be made out unless the misconduct in question was “wilful”, “without reasonable excuse or justification” and “serious”: see Sin Kin Wah v HKSAR.[48]  Applying to the present case, the common law offence would bite only those cases of non-disclosure of interest by members which are so serious as to warrant criminal sanction.  The seriousness of an alleged misconduct would very often depend on its legal and factual context: see the recent comments of the Court of Final Appeal in Chan Tak Ming v HKSAR.[49]  

46.  Thirdly, there are strong policy reasons as to why LegCo should not be dealing with cases of serious criminal conduct:

(i) LegCo has no judicial authority[50] and all it can do, in case of a breach of ROP, is to admonish, reprimand or suspend the Member concerned;[51]

(ii) there is doubt as to whether LegCo is sufficiently equipped to satisfy all the due process requirements before imposing penal sanctions: cf Demicoli v Malta;[52] and

(iii) the inability of LegCo to impose penalty on its Members of a sufficient severity commensurate with the seriousness of the criminal conduct alleged to have been committed in the course of or in relation to their public office would tend to weaken, rather than strengthen, the public confidence reposed in LegCo in the discharge of its important constitutional duty. 

47.  Fourthly, the corollary of (iii) above is that giving LegCo the exclusive authority to deal with the misconduct of a Member so serious as to warrant the common law offence would not be necessary for upholding its dignity and efficiency.  Thus, the necessity test adopted in Leung Kwok Hung v President of the Legislative Council (No 1) would not be met.

48.  Fifthly, even assuming that non-disclosure in question falls within the common law parliamentary privilege of LegCo, there is evidence before me and I am so satisfied that LegCo has waived that privilege in the present case.  This is the inference I draw from the special leave given by LegCo for its officers not only to give evidence at the trial and but also to produce the Register and the other documents in court.  See the note dated 28 November 2016 issued by Clerk to Legislative Council to its Members for “Council Meeting on 30 November 2016” and the reply letter dated by 2 December 2016 by the Secretary General of the Legislative Council Secretariat to the Prosecution.  If LegCo had intended to assert exclusive authority on the subject matter of the charge, it would not have granted the special leave.

As regards (b): Chilling effect

49.  Mr Lee places reliance on a paper presented by the UK Government to Parliament on “Parliamentary Privilege” in April 2012 (“the Green Paper”) where it says:

“If the approach of disapplying the protection of privilege were to be followed, the principal consequence of this proposal that would need to be mitigated is the creation of a ‘chilling effect’ to free speech by the possibility of criminal liability from that speech. A ‘chilling effect’ would take place if any participant in proceedings were prevented from making whatever contribution to proceedings the participant felt was appropriate, by a concern that their words would end up being examined in court. In the view of Sir William McKay, a former Clerk of the House of Commons, when talking about the possible disapplication of the protection of privilege when there were allegations of bribery, any chilling effect would be ‘too high a price to pay for the remedying of a very, very serious but very rare mischief’.”

50.  However, it needs to be pointed out that it is not the view stated in the Green Paper that there should be blanket protection given to parliamentarians for what they would say in the proceedings of Parliament.  Rather, the Green Paper proposes that, in spite of any possible “chilling effect”, parliamentary privilege should be disapplied in respect of certain criminal offences.  For example, the Green Paper notes, in respect of bribery and corruption:

“The previous Government and the Joint Committee on Parliamentary Privilege saw the need for legislation here as greater than the danger of the potential chilling effect.”[53]

In respect the offences of making a false or misleading statement, conspiracy to defraud and blackmail, the Green Paper says,

“It is difficult, if not impossible to think of circumstances in which it would be appropriate for anyone to commit any of these offences in proceedings. This being the case, the chilling effect in allowing prosecutions for these offences to use parliamentary material would be limited: participants participating in good faith in proceedings would have no reason to be nervous owing to a fear of being prosecuted for any of these offences. There could though, remain the fear that participants could be called to court as witnesses and end up having to justify what they said.”[54]

51.  For the sake of completeness, I need to point out that the Green Papers advises not to disapply parliamentary privilege in respect of the offence of misconduct in public office.  However, that is because of the perceived wide and uncertain scope of the offence.  The Green Papers advises that the offence could be reconsidered after it is codified.

52.  In the present case, I do not agree that the prosecution of a LegCo Member for “wilful” and “serious” non-disclosure of interest which is “without reasonable excuse or justification” as alleged in the present case would have the chilling effect as Mr Lee suggests.  As discussed above, the common law offence does not bite cases of misconduct which might have been inadvertently or negligently committed.  For the purpose of the common law offence, “mere inadvertence is not enough”: see Shum Kwok Sher v HKSAR.[55]  Moreover, the basis of the prosecution in the present case is not about what the defendant had said in the meetings of LegCo.  It is about the allegation that the defendant had intentionally failed to make disclosure when he was fully aware of his duty to do so.  Therefore, members who have just been careless should have no reason to be anxious of the possibility of being prosecuted for the common law offence. 

53.  Based on the above, in my view the present prosecution would not have a “chilling effect” as contended on a Member’s freedom of speech and debate in LegCo.  

54.  As regards Mr Lee’s reliance on HKSAR v Chow Nok Hang[56] and his submission that freedom of speech, “like all fundamental rights and freedoms, must be given a generous interpretation … Any law which purports to restrict such right must be narrowly interpreted.”  With respect, this submission loses sight of the proper balance which needs to be struck between the protection of freedom of speech and debate in the legislature on the one hand and the equality before the law[57] on the other.  I note also that HKSAR v Chow Nok Hang is not a case on parliamentary privilege but on freedom of demonstration.  Moreover, what Chan PJ said in that case was that:

“The right to freedom of expression, like all fundamental rights and freedoms, must be given a generous interpretation. (See Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4.) But this right is not absolute and may be subject to restrictions as prescribed by law in the interest of public order and for the protection of the rights and freedoms of others.”

Therefore, the passage quoted above is in fact in harmony with what was said in Leung Kwok Hung v President of the Legislative Council (No 1) that the non-intervention principle is subject to constitutional constraint.

Conclusion on the First Issue

55.  For the reasons given above, I reject the defence argument on the First Issue.  I rule that the present case is not covered by parliamentary privilege and does not contravene any of the protection provided by the Hong Kong provisions.  I rule that this court has jurisdiction to try this case.

The Second Issue

56.  What is in dispute under this head is the admissibility of:

(a) the Register;

(b) the evidence of five LegCo officers, namely, Mr Leung Siu Kei (PW1), Mr Wong Kin Man (PW4), Mr Chan Che Fai Bosco, Ms Szeto Siu Wa (PW5) and Ms Sit Fung Ming Anita (PW6); and

(c) some of the documents of the LegCo (collectively “the Disputed Evidence”).

57.  As noted above, special leave has been given by LegCo under s7 of LCPPO for its officers to give evidence at this trial and to produce the documents in question.  However, Mr Lee submits that the fact that special leave has been given does not mean that the evidence is therefore admissible.  This, Mr Lee submits, is because:

(i) the documents are “proceedings” of LegCo and therefore are inadmissible under s 3 of LCPPO; and

(ii) the leave of LegCo was expressly given without prejudice to the privileges provided in ss 3 & 4 of LCPPO.

As regards (i): Proceedings

58.  With respect I am unable to accept that the Register in question forms part of the “proceedings” of LegCo.  As discussed above, “proceedings” refer to the formal action of LegCo in its collective capacity whether in its plenary sessions or its committees.  The filing of a declaration by a Member, however, is his or her individual act.  That the filing of a declaration is a “time-saving” device is, in my view, besides the point[58] and not in itself sufficient to turn a Member individual act into a part of the proceedings of LegCo.  Therefore, it follows that the Register, which is just a compilation of all the declarations filed by Members, also does not form part of the proceedings of LegCo. 

59.  As aforesaid, I am of the view that the protection of “freedom of speech and debate” is capable of being extended to cover actions outside LegCo meetings and its committees, if those acts bear a sufficiently close connection with the core and essential business of LegCo so that if they are not covered there would be an adverse impact on the freedom of speech and debated protected by the Hong Kong provisions.  However, in the present case I do not consider that the Register has such a close connection.  Besides, I do not think that there would be any adverse effect on the freedom of speech or debate in LegCo if the Register is not precluded from being produced in court as evidence. 

60.  I draw some comfort by the fact that my aforesaid conclusion about the nature of the Register is also supported by the correspondence between the Prosecution and LegCo.  In the letter from LegCo to the Prosecution dated 29 September 2016, it was said:

“ I refer to your letter dated 14 September 2016 in which the Department of Justice sought the special leave of the Council for seven officers of the Council to give evidence and to produce documents as set out in the Appendix to the letter (“specified documents”. 

 To facilitate the Council’s consideration of the application, I should be grateful if you would provide the supporting reasons as required under Rule 90(1) of the Rules of the Procedure of the Legislative Council (“LegCo”), including how and why evidence of the respective specified documents is necessary for the above criminal proceedings. 

 Under section 7 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), no member or officer of the Council shall give evidence elsewhere in respect of the contents of any document laid before the Council or committee, or in respect of any proceedings before the Council or committee, without the special leave of the Council.  In this regard, please consider whether evidence of some of the specified documents fall under section 7 of Cap. 382, Examples of such documents are copies of Registration Forms on Members” interests furnished by some LegCo Members, documents relating to Orientation Seminars for Members … and those relating to claims for reimbursement of office operation expenses, etc.

   Insofar as the specified documents relate to the official records of proceedings of the Council, video recordings of Council meetings and minutes of certain committee meetings … , since the relevant records contain speeches of or words spoken by Hon LEUNG Kwok-hung before the Council and its committees, depending on the purpose for which the relevant records will be used in court, sections 3 and 4 of Cap. 382 may be application. … ”

61.  It can be seen, therefore, that LegCo was making a distinction between two categories of documents:

(a) Registration Forms on Members” interests furnished by some LegCo Members, documents relating to Orientation Seminars for Members and those relating to claims for reimbursement of office operation expenses, etc; and

(b) documents relating to the official records of proceedings of the Council, video recordings of Council meetings and minutes of certain committee meetings.

62.  Subsequent to the letter from LegCo, on 24 November 2016 the Prosecution wrote to LegCo giving reasons for their application for special leave in respect of just category (b) only.  The Prosecution did not continue to seek special leave for category (a).  In the event, special leave was granted by LegCo in respect of category (b).

63.  The only reasonable inference which I draw from the above is that LegCo was and is of the view that special leave is not necessary in respect of category (a). This view of LegCo is one which I am entitled to take into account.  However, for avoidance of doubt I should say that even without the support of the aforesaid inference, by basing on the authorities I have quoted above my conclusion would have been the same.

64.  Furthermore, even if I were wrong in my conclusion that the Register does not form part of the “proceedings” of LegCo, it is clearly not the law that “parliamentary proceedings” cannot be adduced as evidence in court proceedings no matter what the intended purpose is.  This lead me to the following issue which relates to both the Register and the other “Disputed Evidence”.

As regards (ii): ss3 & 4, LCPPO

65.  The prosecution in its letter dated 24 November 2016 to LegCo seeking special leave stated its position as follows:

“It is appreciated that the specified documents may only be used in court in a manner consistent with the statutory provisions in light of the principles developed in decided cases governing parliamentary privilege. We consider that sections 3 and 4 are not infringed as far as the intended use of the specified documents is concerned. The specified documents will be used to prove that the relevant parliamentary proceedings took place and that the Defendant participated in the proceedings. The Prosecution is not seeking to question or challenge the veracity or propriety of anything said by the Defendant as recorded in the relevant records of proceedings or reports. Rather, the Prosecution is seeking to adduce the documents as evidence of the fact that such statements were made by the Defendant. The allegation of impropriety relates to his failure to declare or disclose, or concealment of the receipt in question. The words said by the Defendant are not the cause of prosecution action or the foundation of criminality liability, and he is not exposed to any criminal liability in respect of what he said in LegCo proceedings. As such, the use of the material is consistent with parliamentary privilege. There is nothing in the allegations against the Defendant which relates to the legislative or deliberative processes of LegCo or its Members.”

66.  From the above, what the Prosecution says that it is seeking to do is to use the evidence in question just to establish what had or had not taken place as a historical fact, ie, what was in fact said or not said in LegCo, by a particular person and on a particular day.  That, in my view, does not involve any “questioning” of the propriety or otherwise of the proceedings or what the defendant had said in those proceedings, even if one were to interpret “questioning” in a broad sense.  It is clear to me that LegCo was and is of the view that the prosecution’s intended usage of the evidence as stated in the aforesaid letter would be consistent with the principle of parliamentary privilege.[59] Furthermore, what the defendant had said in LegCo is not the subject matter of the charge and is not relied upon by the Prosecution as the foundation of its case.  Therefore, in my view the protection provided by article 77 of the Basic Law and s 4 of LCPPO is simply not engaged.   I note also that similar usage of records of parliamentary proceedings would be permissible even in jurisdictions where there is in existence the more extensive protection provided by article 9 of the Bill of Rights.  Thus, in Prebble v Television New Zealand Lord Browne-Wilkinson said:

“… A number of the authorities on the scope of article 9 betray some confusion between the right to prove the occurrence of Parliamentary events and the embargo on questioning their propriety. In particular, it is questionable whether Rost v Edwards [1990] 2 QB 460 was rightly decided.

… Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House … or that the State-Owned Enterprises Act 1986 was passed … It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.”[60]

See also Church of Scientology v Johnson-Smith;[61]and Toussaint v Attorney General of St Vincent and the Grenadines.[62]

67.  Similarly, I do not accept that the prosecution’s stated intended usage of the evidence in question would have any adverse impact on a Member’s freedom of speech and debate protected by the Hong Kong provisions. 

Conclusion on the Second Issue

68.  Based on the above, I reject the defence submissions on the Second Issue.  I rule that the Register, the evidence that the five LegCo officers are expected to give and the Disputed Evidence are admissible for the limited purpose of proving what was done and said in LegCo meetings or its proceedings as a matter of history.  As enjoined by Lord Browne-Wilkinson in Prebble v Television New Zealand, it is for me as the trial judge to ensure that the proof of the historical facts is not used to suggest that the defendant’s words were improperly spoken or were to achieve an improper purpose.

69.  Based on all the above, I reject the defence submissions on the Pre-trial Issues and I rule in favour of the prosecution.

RELEVANT LEGAL PRINCIPLES

General

70.  I bear in mind that the burden is on the prosecution to prove the charge beyond reasonable doubt.  The defendant is not required to prove anything.  In the present case, the defendant chose to give evidence.  This is his right and no adverse inference would be drawn from this against him: Lee Fuk Hing v HKSAR.[63]

71.  Insofar as the prosecution relies on any inferences to support the charge, such inferences are not to be drawn unless they are the only reasonable interferences from the direct facts proved: Kwan Ping Bong & Another v R.[64]

Misconduct in public office

72.  The elements of the common law office of misconduct in public office are stated by Sir Anthony Mason NPJ in Sin Kam Wah & Another v HKSAR,[65] namely the offence is committed when:-

(1) a public official;

(2) in the course of or in relation to his public office;

(3) willfully misconducts himself, by act or omission, for example by willfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5) where such misconduct is serious, not trivial.

The above elements are re-affirmed in the recent case of HKSAR v Hui Rafael Junior, supra.

73.  The essence of the offence is an abuse of office. So in determining whether or not the person was a “public officer”, the correct approach was to examine what, if any, powers, discretions or duties had been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involved an abuse of those powers, such abuse ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, to oppression: see HKSAR v Wong Lin Kay.[66]

74.  As regards the element of “seriousness”, it is explained by Sir Anthony Mason NPJ in Shum Kwok Sher v HKSAR[67] that the seriousness of the misconduct is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they served and the nature and extent of the departure from those responsibilities.  There is no doubt a borderland in which the common law offence and disciplinary offences overlap.  The offence may be committed for no discernible or provable motive: Chan Tak Ming v HKSAR, supra.  However, it is necessary to note that the factors mentioned in Shum Kwok Sher are not meant to be exhaustive.  As pointed out by Chan ACJ in HKSAR v Ho Hung Kwan Michael,[68] the consequences of the misconduct are also relevant when considering whether the misconduct is serious enough to merit criminal sanction.  It would be wrong simply to conclude that if the misconduct in question was not trivial, then it must be serious enough to merit criminal sanction.  The possible damage to the integrity of the system and the effect on public confidence in the system are clearly relevant matters for consideration in deciding whether the conduct of a public officer is so serious as to amount to the common law offence.  Those matters must be considered in context and together with other relevant factors.  His lordship also quoted Re A-G’s Reference (No 3 of 2003)[69] with approval where it was said that the motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct.  Similarly, Yeung JA (as he then was) in HKSAR v Wong Kwong Shun Paul said, [70]

“40. In order that Hong Kong can continue to be a corruption-free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute. Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed. In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any conduct of a public officer which contravenes the above principles is serious misconduct.”

PROSECUTION EVIDENCE

75.  The bulk of the prosecution evidence is adduced by way of admitted facts.[71] As a result, there were just a few witnesses who had given live evidence in this case, including the following officers from LegCo Secretariat:-

Mr Leung Siu Kei (PW1)	Chief Council Secretary
Goppi Cheng (PW2)	Senior Deputy Accountant

I note that there was no challenge by the defence to the credibility of the above witnesses.  On the other hand, the defence sought to establish their own case by questions put in cross-examination to PW1 who, Mr Lee said, was the important witness in this case because of his experience in matters relating to ROP and declaration of interests by Members.  

76.  The statements of the following prosecution witnesses are read into the evidence by agreement under s65B of the Criminal Procedure Ordinance, Cap 221:

Chan Yuk Fung (PW3)[72]	Chief Council Secretary, LegCo Secretariat
Wong Kin Man (PW4)[73]	Head (Translation & Interpretation)
Szeto Siu Wa (PW5)[74]	Chief Council Secretary, LegCo Secretariat
Sit Fung Ming Anita (PW6)[75]	Assistant Secretary General, LegCo Secretariat
Lam Man Yan (PW7)[76]	Electoral Officer, Registration an Electoral Office
Chan Tsz Lan (PW8)[77]	Bank Staff, HSBC
Yam Him Ming (PW9)[78]	Bank Staff, HSBC
Wong Kwong Hoi (PW10)[79]	News Production Manager, TVB
Chan Yin Ping (PW11)[80]	Executive Producer, RTHK
Yip Koon Lam (PW12)[81]	Senior Programme Officer, RTHK
Wan Wing Hung (PW13)[82]	Investigator, ICAC

Apart from PW1, the role of the other prosecution witnesses from LegCo is mainly to produce documents.  The evidence of the two bank officers from HSBC is about an incident in which the defendant had tried to pay a cashier order (issued in his favour) into the bank account of LSD.

Basic facts

77.  Based on the admitted or unchallenged evidence before the court, the following facts are in not dispute: -

(1) The defendant was a founding member of LSD.  He was also its Chairman between 12 February 2012 and 21 February 2016, succeeding Mr To Kwan-hang.

(2) The defendant had been a LegCo Member since 2004.

(3) The nomination period for the LegCo Election 2012 was between 18 and 31 July 2012. The defendant formally announced that he would run for that election on 23 July 2012 and was elected as a Member on 9 September 2012. 

(4) Since 2004, every time the defendant was elected as a Member, he would be reminded by the LegCo Secretariat through letters, notices and handbooks of his duty to register his “registrable interests”.[83]  For the present purpose, “registrable interests” include all donations received by a Member as a candidate in the Legislative Council election in which he or she was elected and also financial sponsorships by any person or organization received by a Member.[84]

(5) Particulars of “registrable interests” of all LegCo Members are recorded in the Register of Members’ Interests which is available for public inspection and scrutiny at the LegCo office, the purpose of which is to show whether the interests received by a LegCo member might reasonably be thought by others to influence his or her actions, speeches or votes in the LegCo, or actions taken in his or her capacity as a LegCo member.  The records are also uploaded to the website of LegCo such that the public can inspect the Database on Members’ Interests on the internet at any time. 

(6) Mr Lai had been the Chairman, Executive Director and major shareholder of Next Media Limited of which Apple Daily Limited was a subsidiary.  On 12 December 2014, Mr Lai resigned as the Chairman and Executive Director of Next Media Limited and a Director of Apple Daily. However, he remained as a major shareholder of Next Media Limited.

(7) In mid-April 2012, a person called Mark Herman Simon (Simon) paid a total of HK$9.5 million to four political parties in Hong Kong, respectively Democratic Party (DP), Civic Party (CP), Labour Party (LP) and LSD, by way of four cashier orders with the political parties named as the respective payee.  The cashier order in favour of LSD was in the amount of HK$1 million.  The bank records show (and there is no dispute) that all of the cashier orders were in fact funded by Mr Lai.

(8) On 3 May 2012, the aforesaid cashier order in favour of LSD was redeemed by Simon who later on the same day caused three new cashier orders to be issued, one for Mr To Kwan Hang (HK$250,000), one for the defendant (HK$250,000) and the last one for LSD (HK$500,000).

(9) On 22 May 2012, the casher order in the defendant’s favour was deposited into his personal current account held with HSBC.  (“The 1^st Payment”)

(10) Between 24 May and 31 May 2012, a total of HK$400,000, which consisted of the proceeds of the defendant’s aforesaid cashier order and a sum which came mainly from the LegCo Secretariat, was transferred from the defendant’s HSBC current account to an account of a Ms Tong.  Ms Tong had never been a signatory of the HSBC bank account of LSD.

(11) Apart from the 1^st Payment, the bank records show that there were other payments from Simon to the defendant.  Again, there is no dispute that all those other payments were in fact funded by Mr Lai:

(a) A cheque in the amount of HK$50,000 issued by Simon dated 22 November 2012 was deposited into the defendant’s HSBC savings account.  The same amount was withdrawn on 26 November 2012 and deposited into the HSBC savings account of LSD on the following day.  (“The 2^nd Payment”)

(b) On 18 October 2013, Simon caused two cashier orders to be issued, one in favour of the defendant and the other Mr Lee Cheuk-yan (a LegCo Member), each for HK$500,000.  On 22 November 2013, the cashier order in favour of the defendant was paid into his HSBC savings account. (“The 3^rd Payment”)  On 26 November 2013, the defendant withdrew the 3^rd Payment and deposited the money into two bank accounts of a Mr Wong who was a practicing solicitor.  There is some evidence that Mr Wong was at the time representing LSD members in lawsuits and that the payments to Mr Wong were legal fees.

(c) On 27 June 2014, Simon caused a cashier order (HK$500,000) to be issued in favour of the defendant. (“The 4^th payment”)  At the time, the defendant was serving a prison sentence for which he was only released on 5 July 2014.  In mid-October 2014, the defendant went to the main branch of HSBC and attempted to deposit the cashier order into the bank account of LSD.  The bank officer at the counter (PW8) suggested that the defendant pay the cashier order into his own bank account first and then transfer the money to LSD’s bank account.  The defendant appeared to be reluctant to do so.  PW8 then said she needed to take instruction about the defendant’s request.  The defendant left. Subsequently, PW8 was instructed that the defendant’s request could be acceded to and therefore she left a voice message with the defendant to that effect. However, the defendant did not come back to her.  In about November/ December 2014, when PW8 saw the defendant again in the bank, he told her that because of the late reply from the bank, he had already returned the cashier order to someone.  According to bank records, on 12 December 2014 the cashier order was redeemed and the proceeds were deposited back into the bank account of Simon.

(d) On 28 October 2014, another cashier order (HK$500,000) was issued in favour of LSD using the funds in Simon’s bank account.  On 5 November 2014, that cashier order was deposited into LSD’s bank account.

(12) In the meantime, between July and August 2014 there was wide media coverage about the defendant and other LegCo Members accepting payments from Mr Lai.[85] As regards the defendant, however, the media coverage was only about the 3^rd Payment and the 4^th Payment.  Between 30 July 2014 and 15 November 2015, the CMI of LegCo had held a number of close-door meetings to investigate the matters about the defendant and Mr Lee Cheuk-yan for their alleged breaches of Rule 83(3) of ROP.  According to the Report of the CMI,[86] as regards the defendant the investigation was only the 3^rd Payment and the 4^th Payment and the defendant had not disclosed to the CMI anything about the 1^st Payment or the 2^nd Payment.  Eventually, because of the divisive views among its members, the CMI was unable to come up with any conclusions about the allegations against either Mr Lee Cheuk Yan or the defendant.

“Accepting on behalf” (代收)

78.  There is one proposition raised by the evidence of PW1 which appears to be common ground, that is to say that if a Member received a donation which was in fact intended for someone else rather than the Member personally, in other words if the Member only received the donation on behalf of a third person (“代收”), then Rule 83 of ROP would not be engaged and there would be not a duty to make disclosure of that donation pursuant to that rule.  PW1 in his evidence cited a precedent concerning LegCo Member Alan Leong to that effect.  In that incident, it was accepted that Mr Leong had received a donation on behalf of Alliance for True Democracy and he had not made any disclosure of that donation as a Member.  The CMI looked into the matter and resolved that the non-disclosure was not a breach.  I say that the proposition appears to be common ground firstly because the prosecution has not asked the court to reject the proposition whilst the defence relies on the proposition in the defendant’s defence.  The prosecution’s attack on that defence is on the factual level, submitting that the defence evidence in this aspect should be rejected.  Secondly, I note that the prosecution has laid no charge and raised no question in respect of the 2^nd Payment (HK$50,000) from Mr Lai through Simon, even though the defendant was named as the payee on the payment cheque,[87] there being evidence that the defendant had subsequently withdrawn the money and paid it into the bank account of LSD.   Thirdly, apart from PW1’s evidence, I also take into account the common stance of the parties.  Lastly, as a matter of construction of the relevant rules of the ROP, I agree that if a Member receives a donation on someone else’s behalf, then he is not accepting the donation “as a Member” and in those circumstances Rule 83 would not be applicable.  I note that there may an interesting legal issue which has not been addressed by counsel, namely “who is to decide whether an interest was required to be disclosed pursuant to Rule 83 of ROP, is it a matter for the court or is it within the exclusive cognizance of LegCo?”   However, since my view on the proposition is the same as that of CMI, the point does not need to be resolved for the purpose of this trial.

Admissibility of LegCo documents and Media Reports

79.  At the end of the prosecution case, Mr Lee invited the court to re-consider the admissibility of the following provisional exhibits:

PP41-42:  The record of the motion and the debate in LegCo on 22 January 2014.  The prosecution relies on these documents to show that: (1) the defendant was present at the meeting; (2) he spoke at that meeting; (3) he voted in the motion debate; (4) he did not declare or disclose his interest at the LegCo proceedings; and (5) other legislators mentioned “Mr Lai”, “Boss Lai”, “Next Media” and “Apple Daily” during the motion debate.

PP27-29:     The defendant’s entry in the LegCo’s Register of Members’ Interest pursuant to Rule 83 of ROP for the 3^th to the 5^th LegCo.  The purpose of the prosecution is to show that the defendant had never registered his receipt of the HK$250,000 from Mr Lai even up to 23 June 2016.

PP22-26:  LegCo’s records of the defendant’s declaration of interest in accordance with Rule 83A of ROP in relation to other matters not relating to Mr Lai or his business.  The purpose of the prosecution is to show that the defendant was well-aware of his duty of disclosure in case of conflict and he knew how to do it.  Therefore, his non-disclosure of the HK$250,000 was not inadvertent or a mistake

PP30-35:  Media reports in respect of the 3^rd Payment and the 4^th Payment.  The purpose of the prosecution is to show that the defendant had failed to register the HK$250,000 even after the extensive media coverage about his other payments from Mr Lai.

80.  Having considered counsel submissions, I ruled against the defence contention that the purposes of the prosecution in adducing the aforesaid documents went beyond the terms of this court’s ruling given at the pre-trial stage.  In particular:

(i) as regards PP41-42, as to Mr Lee’s complaint that PP41-42 cannot be used to show that the defendant had deliberately not disclosing his interests which the prosecution says should have been disclosed, with respect the defendant’s state of mind is a matter of inference to be determined after taking into account all the evidence.  I can see no valid objection to the admissibility of PP41-42; 

(ii) as regards PP27-29, the prosecution is not questioning the truthfulness or propriety of what has been recorded in those documents.  In my view, the prosecution is entitled to use these documents to show what the defendant had not disclosed the relevant interest.  Whether the non-disclosure was deliberate or not is a separate question to be decided only after taking into account all the evidence.  I am unable to see any valid objection to the admissibility of PP28-29; 

(iii) as regards PP22-26, in my view the prosecution is entitled to use the documents for the aforesaid purpose which is not inconsistent with the Ruling.  Again, whether the failure to declare and the non-registration was deliberate or not is a separate question to be decided after taking into account all the evidence; and

(iv) as regards PP30-35 the authenticity of which is not in dispute, the prosecution is not relying on the media reports to show the truth of their contents.  The prosecution is relying on them to show that the defendant must have been aware, as late as July 2014, that there was media concern over the non-disclosure of his other donations from Mr Lai and yet the defendant still did not make any disclosure of his first payment (the subject matter of the charge) even up to the time of his arrest.  That, the prosecution says, goes to the wilfulness and seriousness of the non-disclosure which are elements of the offence.  I am of the view that the media reports are relevant to the issues as contended by the prosecution.  Of course, the wilfulness and seriousness of the alleged non-disclosure are to be decided after taking into account all the evidence. 

81.  In the event, it is my ruling that all the provisional exhibits objected to by the defence are relevant and that their intended usage by the prosecution does not go beyond the terms of this court’s ruling on the Pre-trial Issues.  Besides, I can see no valid reasons for them to be excluded.  Therefore, I admit all of them as exhibits. 

NO CASE SUBMISSIONS

The submissions

82.  Mr Lee made a half-way submission after the prosecution had closed its case.  The sole ground of the submission was that even assuming that the prosecution would be able to show that the defendant had not registered the 1^st Payment pursuant to Rule 83 of ROP, he could have done it orally at any of the LegCo meetings under Rule 83A of ROP during the charge period and there is no evidence that he had failed to just do that, the prosecution having failed to adduce records of all of the LegCo meetings during that period.

83.  In reply, Ms Lai for the prosecution submitted that Rule 83 and Rule 83A imposed different and separate duties.  Furthermore, the defendant should have known by reading the paper for the motion debate on 22 January 2014 that the matter about Next Media was to be raised.  That should have alerted him to register his interest pursuant to Rule 83 and also to make an oral declaration at the meeting pursuant to Rule 83A.  However, the defendant failed to do either of those.

The ruling

84.  Having heard counsel submissions, I ruled that the defendant has a case to answer.  I said that reasons would be given if and when necessary.  This, I now do. 

The applicable legal principles

85.  The approach a judge must take when considering a no case submission is set out in R v Galbraith,^[88] where Lord Lane CJ said,^[89]

“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.”

86.  As to how a trial judge should approach a prosecution’s case based on inferences when facing with a no-case submission, in my view the following said by Kempster JA in Attorney General v Li Fook Shiu Ronald,^[90] which is about an application to discharge made under s 22 of the Complex Commercial Crimes Ordinance, Cap 394, is also applicable:-

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.”

87.  In Director of Public Prosecutions v Varlack,^[91] the prosecution appealed the determination of the Eastern Caribbean Court of Appeal quashing the conviction of the defendant of murder on the basis that the judge had erred in rejecting a submission of ‘no case to answer’ at the close of the prosecution case.  The prosecution case against the respondent was circumstantial, being based largely on the evidence of telephone calls made between the defendants from which the prosecution sought to draw the inference that she knew of and agreed to a plan to kill the deceased.  In the advice of the Privy Council delivered by Lord Carswell, the authorities relevant to the issue of the proper approach to be taken to a submission on no case to answer were addressed.  Having said that the “canonical statement of law” was to be found in the judgment of Lord Lane CJ in R v Galbraith Lord Carswell cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal^[92] as being an accurate statement of the law:-

“It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence arc reasonably open on the evidence … He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reaonab1e doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence…

I would re-state the principles, in summary form, as follows.  If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.  If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.  There is no case to answer only if the evidence is not capable in law of supporting a conviction.  In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

88.  Lord Carswell went on to cite with approval a passage from the judgment of the Court of Appeal of England and Wales, Criminal Division delivered by Moses LJ in R v Jabber:^[93] -

“The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.” [Italics added.]

In the end, Lord Carswell said that when one applies the above principle, it follows that the fact that another view, consistent with innocence, could possibly be held does not mean that the case should be withdrawn from the jury.  See also the recent case of the Court of Appeal in Secretary for Justice v Ng Siu Lun^[94]where DPP v Varlack was applied in Hong Kong. 

Applying to the present case

89.  In the present case, there is no challenge by the defence against the credibility or reliability of the prosecution witnesses.  Rather, the half-way submission is based on an alleged lacuna in the prosecution evidence. 

90.  In order to assess Mr Lee’s submission, it would be necessary to consider Rules 83 and 83A of ROP.  I note that the relevant ROP has been amended over the years, but the amendments do not bear on the present case:

“83. Registration of Interests

(1) Except for the purpose of making registration of interests under subrule (2), every Member shall, not later than the first meeting of each term, furnish to the Clerk, in such form as may be approved by the President, particulars of his registrable interests.

(2) Every new Member of the Legislative Council shall, within 14 days from the date of his becoming a new Member to fill a vacant seat, furnish to the Clerk, in such form as may be approved by the President, particulars of his registrable interests.

(3) Every Member shall furnish to the Clerk, in such form as may be approved by the President, particulars of any change in such registrable interests, within 14 days of any such change.

(4) The Clerk shall cause those particulars to be entered in a Register of Members’ Interests and that register shall be available for inspection by any person during office hours.

(5) In this Rule, "registrable interests" means –

   …

(d)(i) all donations, as a candidate in the Legislative Council election in which the Member was elected as a Member of the Council, received by the Member or any person on his behalf for the purpose of meeting the Member’s election expenses in the election; or

 (ii) financial sponsorships, as a Member of the Council, by any person or organization, stating whether any such sponsorships include any payment or any material benefit or advantage to the Member or his spouse, whether direct or indirect;

 …

(Emphasis supplied)

83A  Personal Pecuniary Interest to be Disclosed

   In the Council or in any committee or subcommittee, a Member shall not move any motion or amendment relating to a matter in which he has a pecuniary interest, whether direct or indirect, or speak on any such matter, except where he discloses the nature of that interest.”

91.  With respect, the sole ground for Mr Lee’s halfway submission is based on a false premise.  It can readily be seen that Rule 83 and Rule 83A are intended to serve very different purposes so that the fulfillment of one does not mean the fulfillment of the other: -

(a)  Rule 83 provides for the general duty of a Member to register all of his “registrable interests” for the purpose of public inspection.  Moreover, there is a formal requirement that the registration of “registrable interests” has to be done by use of a form approved by the Chairman. The latter point was highlighted by PW1 in his evidence when he said that if a Member used a form other than the one approved by the Chairman, the Secretariat would not accept it for registration.  PW1 also said that if a Member notified orally his “registrable interests” to the Secretariat, that oral notification would also be invalid; and

(b)  Rule 83A provides for a Member’s duty to declare his interest at a meeting before moving a motion or speaking in case of a situation which may involve a conflict of interest.[95]

92.  That Rule 83 and Rule 83A impose separate and different duties on a Member is also made clear in the “Guidelines on Registration of Interests” (“個人利益登記指引”) issued by the LegCo Secretariat copies of which were distributed to all Members at the beginning of each term.[96]  At item III(1) of the document it is said that the Guidelines in relation to registration of personal interests should be considered as the “minimum reasonable standard”.  (“在登記個人利益方面, 此等指引應被視為最低的合理規定”).  At Item III(2), it is said that Members have a duty to provide the information required and are responsible to the other Members and the public for the information concerning him or her as contained in the Register.  Then at Item III(3), it is stated that the registration of interests is additional to and in no way a replacement of, the requirement on Members to disclose pecuniary interests under Rule 83A.

93.  Lastly, PW1 also confirmed in his evidence that the duties under Rule 83 and Rule 83A are separate and different duties.

94.  Turning to the elements of the offence, there is no dispute that a LegCo Member is a holder of a public office.  Secondly, pursuant to Rule 83 of ROP the defendant as a LegCo Member had the duty, to make disclosure of all his “registrable interests”.  As such, in my view there is a strong argument that the performance of that duty would be one in the course of or in relation to the defendant’s public office.  Thirdly, in the light of the agreed bank evidence there can be little dispute that the defendant had received a payment of HK$250,000 from Mr Lai through Simon.  Fourthly, at this stage and in the absence of evidence to the contrary the payment is prima facie an interest which had to be registered pursuant to Rule 83 of ROP.  On the face of P28 and P29, however, the defendant had not registered that payment, resulting in a breach of his duty to make the relevant disclosure.  Of course, I should add here that whether the payment was in fact required to be registered is a matter to be decided after consideration of all the relevant evidence including the evidence, if any, from the defence.  Fifthly, there is also evidence that the defendant was fully aware of his duty under Rule 83 of ROP and therefore an inference would be open to a reasonable jury that the failure on the part of the defendant, if any, to disclose the payment in question was wilful and intentional.  Sixthly, it has not been suggested that the alleged failure to disclose, if committed, had any reasonable excuse or justification and none has been raised at this stage.  Lastly, as regards “seriousness” of the alleged breach/misconduct, taking into account the constitutional status and responsibilities of the office of a LegCo Member, the importance of the public trust reposed in legislators and the right of the public to know whether the speech or deeds of their representatives in LegCo are motivated by other interests and the circumstances of the alleged misconduct in the present case, it would be open to a reasonable jury to find that the misconduct, if established, was a serious one.  For the above reasons, I rule that the defendant has a case to answer.  Needless to say, whether the defendant is guilty of the offence charged is a matter to be decided in due course after taking into account all the evidence.

Pre-trial issues revisited

95.  For the sake of completeness, I have considered whether the evidence of PW1 would have any impact of my ruling on the pre-trial issues.  This is because on a cursory reading PW1 seems to have suggested that a breach of Rule 83 was just an internal affair of LegCo which would not attract criminal liability, the reason being separation of powers.  PW1 said the following in cross-examination:

“問： 呢啲係關於呢一類嘅，即係冇及時報告利益呢一類嘅嘢，或者完全冇報到應該報嘅利益呢啲嘢，就係根據《議事規則》裡面做嘅？

答： 係，根據《議事規則》做。

問： 凈係根據《議事規則》處理嘅？

答： 凈係按《議事規則》去處理。

問： 呢啲亦可以話立法會嘅家法，得唔得？

答： 可以。

問： 亦即係話立法會自己處理嘅嘢，就唔關政府部門嘅，同唔同意？

答： 唔關。

問： 唔關，你同意吖嘛？

答： 係，同意。

問： 因為三權分立，係咪？

答： 係。”

96.  However, PW1 later clarified that what he meant was that based on his understanding a “mere breach” of Rule 83 would not give rise to criminal liability.  PW1 supplemented the following in cross-examination:

“問： 而你哋咁耐都冇咁樣提醒，咁耐都冇話啲議員「如果你唔遵守呢啲《議事規則》，除咗會受呢個議員個人利益監察委員會調查，同埋可能有啲懲罰之外，仲會係受刑事檢控。」咁耐都未做過，未咁樣寫過嚟通知佢哋，啱唔啱，或者提醒佢哋？

答： 佢冇登記利益係唔牽涉刑事罪行嘅，至於一個行為本身佢有冇違反《議事規則》同佢係咪干犯刑事罪係兩件事嚟嘅，所以我哋係只係提醒佢登記利益，我哋唔需要提醒議員去守法。

問： 但係如果，如果真係議員係因為冇申報利益係會受到刑事檢控，你唔應該警告下佢哋咩，等佢哋更加小心咩？刑事喎。

答： 我唔會覺得係佢冇登記就係--純粹冇登記就係個刑事。

問： 你唔認為係。

答： 純粹冇登記，佢冇登記係唔係有其他嘢係同一件...

問： 明白。

答： ...--即係呢個行為係咪刑事係睇下其他因素，呢個唔係我嘅處理範圍。”

97.  Upon being asked by the court, PW1 clarified further and said:

“問： 你記唔記得就喺盤問嘅時候李大律師都問過你，即係話如果一個議員佢係冇披露到佢作為議員身分收嘅金錢利益，呢樣嘢構唔構成一個刑事罪行嘅。

答： 係。

問： 應該有問過呢個問題喇？

答： 係。

問： 你當時嘅答案就話唔構成嘅，如果我冇理解錯你嘅話。

答： 我當時--我想表達嘅，就係話佢唔會純粹因為冇--違反呢個《議事規則》，冇登記而干犯刑事罪行，但係佢冇登記呢樣嘢可能係佢另外一啲刑事行為嘅其中一部分嘅元素。

問： 你嘅意思即係話違反《議事規則》呢樣嘢本身唔係一個...

答： 本身唔會造成一個刑事後果嘅，呢個係我想表達啫。

問： 但係就會唔會觸犯到其他嘢就你就唔知道...

答： 就要睇下佢嗰個行為係咪再牽涉一啲刑事可以制裁嘅行為。

問： 但係係由你哋立法會決定吖，定抑或邊個決定呢？

答： 唔係，我嘅理解就係咁啫。

問： 你嘅理解係咁樣？

答： 係。

…

答： 即係我唔係話佢係冇刑事罪行嘅一定，其實喺我哋嗰個登記指引嗰度都有講，我哋只係規限議員需要登記佢嘅利益同埋披露佢嘅利益嘅啫，只於佢會唔會防--違反《防止賄賂條例》或者其他罪行，議員應該自行作出判斷，喺嗰個登記指引係有個咁嘅提醒嘅。”

98.  What I understand PW1 meant is that he was of the view that a “mere failure” to register interests by a Member would not amount to a criminal offence. However, it may be that the breach would form a component of a criminal offence and in which case whether or not a Member would have committed a criminal offence was not a matter for the LegCo to decide.

99.  Having considered PW1’s evidence, I do not consider that it would have any adverse effects on my decision on the Pre-trial Issues.  Therefore, I maintain my decision on those issues.

DEFENCE EVIDENCE

100.  There is only one witness from the defence, who was Mr Ng Man Yuen, the current Chairman of LSD.  He was its Internal Vice-chairman between 2010 and 2012 and External Vice-chairman between 2012 and 2016.  The main points of his evidence consist of the following:

(i) LSD was established in 2006.  It was a small political party in Hong Kong consisting of several hundreds of members.  LSD had an Executive Committee which was comprised of 21 members at the highest.  However, not all on the Executive Committee were considered as core members of LSD. 

(ii) LSD had one savings account and two current accounts held with HSBC.  There were four signatories (including the Chairman) and in 2012 two of them were required the accounts.  The major income of LSD came from public donation. 

(iii) In 2011, LSD suffered a blow as two of its legislators had left to form a new political party, People Power (人民力量), which had a similar voter-base as LSD.

(iv) In 2012, there was only one donation which was more than HK$200,000.  That was the HK$1 million from Mr Lai.  He did not know Mr Lai personally and Mr Lai was not a member of LSD.  In March/April 2012, he came to know that Mr Lai was going to donate HK$1 million to LSD from the former Chairman Mr To Kwan-hang.  Mr To was responsible for fund-raising. 

(v) Afterwards, there was a discussion about the deployment of the expected donation from Mr Lai among some core members of LSD, among the attendees were the defendant, Mr To and he.  At the meeting it was resolved that HK$250,000 of the donation would be used for LSD’s branch in Kowloon East (“KE”), another HK$250,000 for the branch in New Territories East (“NTE”) and the remaining HK$500,000 for general expenses of the party.  The aforesaid decision was considered sensitive as it had a bearing on LSD’s strategy in the coming election.  LSD had only limited resources to deploy in its work in different geographical constituencies.  In order that its resources deployment would not be leaked to other political parties, only those members who “needed to know” was informed about it.  At the time, LSD was yet to decide who would represent it in the coming LegCo election in KE and NTE.

(vi) The HK$250,000 for KE was subsequently deposited into the bank account of Mr To who was in charge of the KE Branch.  Mr To used the money for the work of the party in the district generally, employing temporary workers, printing banners and publications. 

(vii) The defendant was also in charge of the NTE Branch.  He was also a LegCo Member for the NTE Constituency.  In March 2012, the defendant had expressed to Mr Ng an intention not to run again in the 2012 election, the reasons being that the defendant wanted more young people to run for the election and that the defendant had already been a legislator for two terms.  Besides, the defendant was at the time on bail pending appeal in a criminal case and he was seeking a judicial review on his eligibility to run for the election the result of which was yet to be known.[97]

(viii) As regards the HK$250,000 for NTE, the money was paid into the defendant’s bank account and the defendant received the money on behalf of LSD.  The money was eventually used for political publicity and work in the district for the benefit of the party.

(ix) As regards Ms Tong, she was a founding member of LSD and she also used to help the defendant and work for him in the NTE Branch in relation to bookkeeping and financial matters.

CONSIDERATION OF THE EVIDENCE

101.  As the tribunal of fact, based on the bank evidence before this court I am sure so that I find that Mr Lai had the intention to make donations (through Simon) to four political parties in Hong Kong, namely DP, CP, LP and LSD, in the total amount of HK$9.5 million.  The important issue to be decided, then, is whether I can also be satisfied to the requisite standard that there had been a change of purpose regarding the HK$ 1 million to LSD so that HK$250,000 of which later became a donation to the defendant personally. 

102.  I am fully alive that the burden of proof is on the prosecution.  However, purely for the sake of convenience I would first consider the evidence of Mr Ng. I bear in mind all the criticisms that Ms Lai has levelled, in her oral and written closing submissions, at the various inadequacies of Mr Ng’s evidence. I note in particular that Mr Ng’s evidence is very vague as to the time and location of his discussion with the defendant and other core members of LSD about the use of the HK$1 million donation from Mr Lai in early 2012.  I note that it is Mr Ng’s evidence that the HK$250,000 mentioned in the charge had not been used in the defendant’s election campaign in 2012.  His evidence was to the effect that the money had been used generally for the work of LSD in NTE. Nevertheless, Mr Ng had not produced a single document or any accounts from LSD to support his version in this regard.  On the other hand, there was a minute of meeting of the Executive Committee LSD[98] recording just a donation of HK$500,000 in 2012 without any mention of the other two sums each of HK$250,000 to the KE Branch or NTE Branch respectively. Furthermore, Mr Ng’s evidence, if true, would suggest that even the Treasurer of LSD had not known about the existence of the two sums.  As regards the role of Ms Tong, there is independent evidence showing that the defendant had claimed reimbursement from LegCo for her salary as his accountant in relation to his office there.[99]  On the other hand, there is no document to show that Ms Tong had worked for or helped the defendant in the NTE Branch of LSD.  Last but not least, I note that Mr Lai had through Simon made direct donations to LSD so that if Mr Lai wanted to make donations to LSD, there is no necessity for Mr Lai to do that through the defendant. 

103.  Ms Lai asks the court to reject the evidence of Mr Ng.  Ms Lai places great reliance on the fact that there was originally just one cashier order (HK$1 million) in favour of LSD which was later redeemed and replaced by three cashier orders: one for the defendant (HK$250,000), one for Mr To (HK$250,000) and one for LSD (HK$500,000).  Ms Lai submits that the only reasonable inference to be drawn is that the cashier order for the defendant was intended to be a payment to him personally. 

104.  Having considered all the evidence and bearing in mind the burden of proof, I find that there is some credence in Mr Ng’s evidence that Ms Tong had helped the defendant in respect of the work of LSD in NTE.  Firstly, the fact that the defendant had claimed reimbursement from LegCo in respect of Ms Tong does not mean that she had not also helped him, with or without pay, in respect of LSD. Secondly, Mr Ng’s evidence that Ms Tong was an active member of LSD has not been contradicted by any other evidence.  Thirdly, that the defendant would trust Ms Tong not only regarding matters relating to his office in LegCo is to a certain extent supported by the agreed bank evidence that he had transferred the whole of the proceeds of the 1^st Payment from his bank account to her bank account.

105.  As regard the nature of the 1^st Payment, with respect there is force in the closing submission of Mr Pun, SC (who argued this part of the defence for the defendant) that there were similarities between that payment and the other payments from Mr Lai in that none of them had stayed in the defendant’s bank account.  To the contrary, all of them had been withdrawn in their entirety almost immediately upon receipt.  The proceeds of the 1^st Payment were withdrawn by instalments within a few days upon receipt and transferred to Ms Tong who, according to Mr Ng, was helping the defendant in matters relating to the NTE Branch of LSD.  The proceeds of the 2^nd Payment were paid into the bank account of LSD four days after it was received by the defendant. There is evidence before this court, not contradicted by the prosecution, that the proceeds of the 3^rd Payment were used for the legal costs of LSD members.  As regards the 4^th Payment, the cashier order in the defendant’s favour was subsequently replaced by a cashier order in favour of LSD.  Before that, there was evidence that the defendant had tried to pay his cashier order into the bank account of LSD.  Therefore, there is a discernible pattern which provides some circumstantial support to Mr Ng’s assertion that the 1^st Payment, even though having been paid into the defendant’s account, was in fact intended for LSD and used for its purposes.  On the other hand, there is no evidence to contradict Mr Ng’s evidence that the 1^st Payment had been used for the purpose of LSD.

106.  I have not ignored the fact that when the defendant was interviewed on 1 August 2014 by RTHK in a radio programme, he was asked by the host whether the HK$500,000 (the 3^rd Payment) was the only payment and whether there had been other payments before that (“咁即係，係咪誒由始至終都係收到呢一筆，… 五十萬?再之前呢?再之前有冇㗎”). To this, the defendant replied in the negative by saying that he had none (“我、我無㗎，我無㗎。”).[100] The prosecution does not rely on this as a lie.  I think the prosecution is right not to do so.  Even if it could be proved that the aforesaid statement of the defendant was a lie, it does not in my view has much probative value for strengthening the inference of guilt, as there could be innocent reasons why the defendant would not want to reveal the existence of other donations from Mr Lai at the time: Yuen Kwai Choi v HKSAR.[101]  The prosecution relies on the radio interview to show that the defendant must be particularly alerted that he had all along failed to comply with Rule 83 and what he should have done was to make belated registration.  In my assessment, however, if the defendant had not considered himself to be duty bound to disclose the 3^rd Payment, then the fact that he had not made any disclosure even after the radio interview would be neither here nor there and the failure to register the payment would not advance the prosecution case.

107.  I consider that the defendant’s conduct is not without suspicion.  This is because of the replacement of the original cashier order (in LSD’s favour) with the subsequent cashier order (in the defendant’s favour).  Even according to the defence, the defendant had a role to play in causing that replacement.  However, having taking all the evidence into account, I cannot be sure that the latter cashier order was for the defendant personally as a LegCo Member rather than a payment which he had received on LSD’s behalf.  As such, the benefit of doubt goes to the defendant.  That means that the prosecution has failed to prove the main plank of its case, namely that the defendant had committed a misconduct by breaching his duty of disclosure under Rule 83 of ROP.  As a result, it would be unnecessary for me to consider whether the prosecution has made out the remaining elements of the offence which are in dispute.

CONCLUSION

108.  As the tribunal of fact, despite the suspicions I have of the defendant’s conduct, I am not satisfied that the prosecution has proven its case against him beyond reasonable doubt.  In the circumstances, the defendant has the benefit of doubt and is acquitted of the charge.

109.  I thank all counsel for their valuable assistance for all of which this court is indebted.