HKSAR v. HUI RAFAEL JUNIOR , also known as HUI SI-YAN RAFAEL AND OTHERS

Subject to reporting restrictions as per paragraph 33 of the judgment

HCCC 98 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 98 OF 2013

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R U L I N G

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1. Following the prosecution opening which began at midday on Thursday, 5 June 2014 and ended shortly before 4 o’clock on Tuesday 10 June, and prior to the calling of evidence scheduled for 10 o’clock on Wednesday 11 June, application was made by all counsel for the defence that the jury should be discharged on the basis of prejudicial statements made by Mr Perry QC during the course of his opening address.

2. Since the jury had duly assembled in their jury room by 10 o’clock yesterday morning and given that the arguments of all parties were obviously likely to last some time, I decided to send the jury away until today at 2.30 pm so as to be able properly to consider this application without keeping the jury waiting indefinitely.  I indicated that I would give my ruling at midday today.  It so happened that the jury were not due to sit today for the morning session in any event due to a personal commitment of one of the jurors.  As it turned out, the arguments did not conclude until 1 o’clock yesterday afternoon and I was not in a position to complete my ruling until a few minutes ago.  During that time and for the purposes of this ruling, I have re-read the arguments of counsel, the entirety of the prosecution opening as well as various other parts of the transcript concerned with previous applications, and certain authorities.

3. Before I address the arguments, I wish to make certain general observations about the nature of the complaint in this application.  First, the object of the defence concern is the opening address of prosecuting counsel, Mr Perry.  If one proceeds, as I think one must, on the basis that a jury will follow faithfully the instructions and directions they are given by a judge in a criminal case, then they were told by me in my opening remarks and instructions, and before Mr Perry began his opening, as follows:

“Counsel for the prosecution will open … the case by giving you an opening address of what the case is about, so far as the prosecution is concerned, and what evidence the prosecution intends to present to you in support of that case. The sole purpose of an opening is to assist you to understand what the case is going to be about, so far as they are concerned, and to understand the evidence that they are going to call. However, you must remember that what counsel for the prosecution says in his opening address is not proof of anything. It is only a statement of what he hopes to prove.” (My emphasis)

4. The statement that Mr Perry would be telling the jury “what this case is about so far as the prosecution is concerned” was later reiterated just before the break which immediately preceded Mr Perry’s opening address.

5. Secondly, I am told that this is likely to be a very lengthy case lasting three, perhaps four, months.  However thorough and instructive Mr Perry may feel his opening address may have been, the reality is that in three weeks’ time, let alone three months’ time, much if not most of what he has said will have yielded to the far more significant and influential imperative of the evidence upon which the jury have already been told repeatedly and emphatically by me that they must decide this case.  And far more significant and influential if I may say than an opening address three or four months previously will be the more recent closing addresses of all parties based upon the evidence which the jury will have heard over the course of those three or four months and the judge’s summing up and judicial directions and instructions as to the application of the law in relation to that evidence.

6. That is not to say that there are not cases where something blatantly prejudicial in a prosecutor’s opening can carry forward and risk colouring the jury’s view of evidence in such a way that a judge cannot realistically exorcise the prejudice by judicial direction.  The inadvertent reference to a defendant’s inadmissible confession is perhaps an obvious example.  I am merely making the point that prejudice from a prosecutor’s opening address, assuming it exists, is likely to be far less potent in a long and complex trial than in a short, simple one.

7. In R v Letizia [2006] EWCA Crim 315, the English Court of Appeal were concerned, at paragraph 19, with a ground of appeal in which prosecuting counsel had

“… in opening mentioned that Swales [a prospective prosecution witness] would testify to the appellant having deliberately caused or contributed to the damage at the premises by smashing sprinklers and turning off the water supply. That reference by counsel in his opening took place on 5 September 2002. On 2 October 2002, roughly a month later, the Crown indicated that they were not now proposing to call Swales. The defence then applied for the jury to be discharged because of the prejudice caused by the Crown’s opening. The judge however rejected that application. He distinguished between cases where the jury hears evidence which they should not have heard from the situation where there is an unjustified comment by counsel in opening. He concluded that the jury was capable of concentrating on the evidence which they heard. If necessary there could be a direction to the jury. The judge no doubt was bearing in mind also the anticipated length of time that the trial was clearly going to last.”

8. As it turned out, the trial lasted more than three months.  The Court went on, at paragraph 25, to hold that the trial judge’s refusal to discharge the jury was a reasonable one.  It held:

“This was a very long trial, 15 weeks in all. It was most unlikely that in its deliberations on 16 December and the following days the jury would have had much clear recollection of what Crown counsel had said about Swales on 5 September, over three months earlier. In any event they were expressly told by the judge to decide the case on the evidence. The situation which arose was in our judgment very different from that where a jury hears evidence which it should be kept unaware of, such as a defendant’s previous convictions which have not been admitted in evidence. This was only a statement by counsel. It seems to us that the judge’s decision not to discharge the jury was one well within his discretion.”

9. Thirdly, one must not devalue the importance and force of judicial directions and instructions on the minds of jurors who receive them.  Just as juries are told in a summing-up how they may use certain evidence, they are also sometimes told how they must not use it.  The experience of the courts, and certainly my own experience of almost 32 years in this jurisdiction, is that juries in Hong Kong do faithfully follow such instructions.  In Montgomery v HM Advocate [2003] 1 AC 641, Lord Hope of Craighead described it as an “assumption” underlying the whole system of trial by jury that juries will abide by judicial instructions. He said, at 674A:

“The judges in the courts below relied on their own experience, both as counsel and as judges, of the way in which juries behave and of the way in which criminal trials are conducted. [Counsel for the appellant] submitted that there was no basis upon which one could assess the likely effect of any directions by the trial judge. He said that this was something that was incapable of being proved. But the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”

10. To this assumption, the High Court of Australia in Dupas v The Queen (2010) 267 ALR 1 added this gloss, at para 28:

“The assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of “constitutional fact”, in the sense of that term explained by Haydon J in Thomas.”

11. Having made these general points, none of which individually or collectively is definitive of the application before me, I would accept that there can be matters in an opening that are so prejudicial for the jury to hear that a judge has no alternative but to discharge that jury and start again.  The question is whether this is such a case.  I, therefore, turn to the individual arguments of counsel in this application.

12. It has been a consistent theme of Mr Kelsey-Fry QC’s submissions, fully articulated in the severance application before me in March of this year, that there is a serious risk that the jury will elide the receipt by D1 of benefits which are not said to be corrupt with the acceptance of advantages which are said to be corrupt; and that no judicial direction or instruction will be able to prevent the jury from using the evidence on Counts 1 and 6 (in particular), which do not allege corrupt dealings, in their assessment of the other counts with which his client D3 is charged, which do allege corrupt dealings.  The argument has now been renewed in the wake of Mr Perry’s opening, which it is argued, has resulted in the press falling into the very trap that he forecast.

13. I have already given explicit and emphatic directions to the jury shortly after they were sworn as the jurors in this case on the vital importance of ignoring what they may have read or what may have appeared, or what may from now on appear on the radio, the television, in newspapers, magazines, or on the Internet, about this case or about the defendants.  I have no reason to think they will have read the particular material to which Mr Kelsey-Fry has referred or, even if they had, that it will be any substitute for what the prosecution have in fact alleged in their opening or what the prosecution will endeavour to prove in their case or during the evidence.

14. Furthermore, I have already dealt with the relevance of the background evidence on Counts 1 and 6 and the elision argument in my judgment on severance on 7 April 2014: see, in particular, para’s 32-35 and 42.

15. Nevertheless, I have looked to see whether on a fair and proper reading of the structure and context of the entire opening, Mr Perry has gone beyond the limits of his own allegations in the Indictment in such a way that any prejudice cannot be cured unless the jury are discharged.

16. Having done so, I do not see that the criticisms levelled at the opening are justified.  The point which Mr Perry made time and again, and which I understood him to be making, is that D1 is alleged to have misconducted himself in relation to Counts 1 and 6 (and 8) by not disclosing, or concealing, certain matters when he was operating under a conflict of interest as a public official, whether as Chairman of the MPFA (Count 1), Chief Secretary for Administration (Count 6) or a Non-official member of the Executive Council (Count 8).  The conflict of interest in Count 1 was said by Mr Perry to arise when D1 engaged in negotiations leading to the renewal of the lease of MPFA premises when SHKP, with whom D1 was at the time having private dealings which he did not reveal, had an interest in the renewal of that lease.  The conflict of interest in Count 6 was said to arise when D1 was allegedly dealing with matters of Government involving SHKP when he was asking for and receiving extensions of a sizeable unsecured loan from a subsidiary of SHKP.  I had myself commented at para 32 of my judgment of 7 April 2014 that “as a matter of common sense, loans, especially substantial, unsecured or unpaid loans (even perfectly proper ones), create indebtedness and a sense of obligation between the grantee and the grantor”.  Mr Perry put the same matter rather more graphically in his opening when he said

“ … the significance of this is at the very point in time at which the first defendant is assuming chairmanship of the West Kowloon cultural development committee, and at the very time he is the Chief Secretary dealing with matters in government, he is seeking a favour from SHKP: ‘Don’t ask for the loan to be repaid; give me an extension.’ Suppose SHKP had said, ‘No, you’ve got to give us $3 million.’ That might have placed him in a degree of financial embarrassment.

But, members of the jury, you can see the problem about a senior government official being under an obligation to a property developer when he is dealing with matters in government that touch and concern that property developer’s interests.  This was not known.  There’s nothing wrong about getting loans.  There’s nothing wrong about getting extensions of loans.  People do it all the time.  It’s part of our daily lives.  But there is something wrong if you’re the Chief Secretary and you’re seeking a favour from the people whose interests you’re also expected to adjudicate upon in your role as the second-most senior member of government; and quite apart from anything else, from whom you had already received $17 million.”

17. The defence complaint assumes that the word ‘favour’ in this passage (which was also later repeated in relation to further annual extensions) should be interpreted as a corrupt advantage.  But it is clearly not being used in that sense.  Mr Perry later used the word “indulgence”, which perhaps less controversially conveys what I have understood Mr Perry to mean, albeit in relation to D1’s request not to pay interest on the second loan, the subject of Count 1:

“There is nothing wrong with lending people money. There is nothing wrong with people seeking indulgences and not seeking to pay interest. But if you’re a public official and you’re seeking a favour, that creates an obligation. You are under an obligation to someone else. Your destiny can be dictated by them: pay the loan, move out of the property, don’t use the office. You are under a sense of obligation, because you have gone to someone else for a favour. That is why, in public service, there are important rules in relation to disclosure of information in relation to conflicts of interest.”

18. I am aware that on one occasion before the above references to ‘favour’, Mr Perry did use the word ‘advantage’ (Day 18, p 35, line 17 of the Live Note record) to describe the $3 million loan.  But, in its overall context and the way this issue was dealt with generally throughout almost four days of opening address, I do not consider this is either irreparable by way of judicial direction at the appropriate time when all the evidence has been heard, nor does it justify discharging this jury.

19. In relation to Count 8, Mr Perry made the same point about D1’s conflict of interest:

“The significance of his concealment is obvious, because, having received $11.182 million from the other defendants, that payment was wholly at odds with the first defendant’s overriding duty as a member of the Executive Council to serve the public honourably and with impartiality, so as not to be under an obligation to a privileged few who had made sure that he had money to live the life to which he had become accustomed.”

20. Again, I do not see, when looked at as a whole and in context, that Mr Perry was suggesting any more than that, in respect of Counts 1, 6 and 8 against D1, he was misconducting himself in public office because the conflict of interest under which he was secretly operating in relation to SHKP compromised the proper carrying out of his functions as a public officer.  I have read the other passages to which I was taken in the context and scheme of what Mr Perry was saying and I do not accept that, properly understood, he went outside the terms of the counts on the Indictment, so as to suggest that the “benefits” in question, as I will call them, were corrupt advantages or that they establish any more than relevant background evidence of the relationship between the parties, without which an understanding of other counts would be incoherent and incomplete.

21. So far as the complaint about Mr Perry’s example of a juror (and later a judge) being bribed, I can certainly agree that other examples might have been used which would not have caused the “sharp intake of breath” which Mr Kelsey-Fry suggested.  As I understood him, Mr Perry was making a point about those making decisions in the exercise or performance of a public duty, who are operating under a conflict of interest.  He said this:

“The reason I say whatever the merits of the decision being utterly beside the point is if you are a public official and you labour under a conflict of interest, and you conceal the conflict of interest, and you act regardless of the conflict of interest in your own benefit, then you undermine integrity in public life, and that is why we have an offence of misconduct in public office. It doesn’t matter about the merits of the decision. Let me give you an example. Suppose a juror accepts a benefit from one of the litigants involved in a case. I don’t imagine that would happen, but suppose it did. Suppose it were to happen. A juror accepts a benefit, is sitting on a case -- no one else knows about it -- and the juror keeps it a secret, and the juror decides the case, still true to the oath: “On the evidence, I have decided the case as the way the evidence worked”, but what would anyone say? What would anyone say if they knew a juror had received a payment from one of the litigants? Would people have confidence in the jury system? You can answer that question for yourselves, because you are jurors and you know the importance of independence and impartiality and fairness which you will bring to this case.”

22. I note that in that passage Mr Perry used the word ‘benefit’ rather than corrupt advantage and, when he later returned to this point three days later, he said

“ … the example I gave you when you first sat was of a juror accepting gifts. Perhaps there’s nothing wrong with the gifts, but if you don’t reveal it, people can’t have confidence in you anymore.”

23. He was simply making the point, as I understood it, that even if a decision-maker exercising a public duty receives a benefit of any kind but does not disclose it and nevertheless decides a case on its merits “still true to the oath”, it is still misconduct in public office because of the conflict of interest under which he is operating.  No doubt Mr Perry was using the example to translate the point to the experience of a juror, who may have had no experience of exercising any public function or duty and for whom jury service would seem analogous.  I do not see the mischief which it is asserted this example conveys.  Sensitivity is no reason to discharge a jury.

24. In relation the points made by Mr Winter QC, I do not accept that the prosecution have put their case any differently from that which they indicated in submissions on 14 April 2014.  The prosecution position is that it is not necessary for the prosecution to prove that D1 did any specific act in favour of D2, D3 or SHKP.  The fact that the prosecution allege that D1 was in receipt of large sums of corrupt money and was thereby allegedly SHKP’s man on the inside of government is not incompatible with that position.  Nor is it a “confusing” position as suggested.

25. I do not see the prejudice for which Mr Winter contends.  Understandably, perhaps, he would like the prosecution to concede that there has never been any favouring of SHKP by D1; especially as that appears to be what D4 is contending.  I have never understood the prosecution were willing to make that concession in those terms.  Nor on their view of the law do the prosecution need to do so.  Their position is that the merits or otherwise of D1’s decisions and comments in meetings concerning SHKP are not necessary in order to prove the charges: what is necessary for their allegation is that having allegedly and secretly been paid by D2 and D3, he participated as Chief Secretary in meetings which concerned SHKP.

26. I do agree, however, that Mr Perry appears to have shifted his position as to the signing and purpose of the Longally agreement; but only because, as he has made clear to the jury, he cannot say when or why it was signed.  What he has firmly declared before the jury is that whatever the reason for it coming into being, it is a sham.  That, with respect, is not an improper position to take nor is it one which prejudices D4, certainly not so as to justify discharging a jury who hears it.  On the contrary, I would have thought it is just the sort of matter which Mr Winter will no doubt vigorously suggest to the jury in argument is illustrative of the weakness or diffidence of the prosecution case.

27. In respect of Mr Chan’s submissions on behalf of D5, I do not accept his argument in relation to Count 2 which does not, for that matter, even relate to D5.  Nor do I agree that Mr Perry has failed to distinguish between the offences of misconduct in public office and section 4 bribery offences.  In any event, that is a matter for me when all the evidence has been heard.  It does not begin to amount to a reason for the discharge of this jury.  Finally, whether Mr Perry is right to say in opening that it can be inferred that D5 was rewarded for his alleged services is a matter of evidence and is unmistakeably one for the jury to decide.

28. Of all the matters that have been raised, Mr Choy’s arguments on behalf of D1 engaged an interesting point of law.  That being the case, I am somewhat surprised, since the point of concern arose before lunchtime on Monday of this week, that it was not until the hearing yesterday (on Wednesday morning) that the matter was brought to the prosecution’s attention and raised in court.  And even then, it was not argued fully or properly by either side; a copy of the case of Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 being produced by Mr Choy in his reply, which in turn caused Mr Perry to have to fumble with the Internet to refer to another case in which Lee Fuk Hing had been cited.  That in turn resulted in me having to find the cases mentioned viva voce in argument, as well research others on the subject; for example, HKSAR v Cheung Oi Hin [2008] 6 HKC 107.

29. I am not in a position on the current state of argument to determine this issue, which may have to be properly addressed later.  What I am quite satisfied about is that even if Mr Choy is right, that is not something which is so prejudicial as to warrant the discharge of this jury.  This is precisely the sort of issue which, even if the jury were to remember the point in three or four months’ time, is perfectly susceptible of judicial direction.

30. Accordingly, the application to discharge the jury is refused.  The evidence will commence as scheduled at 2.30 pm this afternoon.

Postscript

31. Following what I have just said in relation to the argument advanced by Mr Choy, I wish to add this postscript.  Although I have singled out Mr Choy for comment on the way the matter was launched on the prosecution and the court yesterday, it might seem to the impartial observer that there was a concerted effort by all parties to ambush the prosecution with arguments that had been well prepared with page citations in both these and earlier proceedings, and which they must have known they were going to make rather earlier than yesterday at 10 o’clock.  The tactic, if that is what it was, succeeded because, with all due respect to Mr Perry, the prosecution were not in a position to give me the assistance that I needed and it was left to me, with very little sleep as a result, to read volumes of argument and transcript, research authority and come up with a judgment (partly typed and partly in manuscript form when delivered) by 12 o’clock today so that the jury would not be further inconvenienced.  No doubt the parties will be able to point to errors that I have made in this judgment which does not pretend to be complete or to address every issue raised, save for the more important ones.  That would hardly be surprising given the way the arguments were launched upon the court with five minutes’ notice yesterday and with a jury waiting to get on with the case; arguments, as I have said, which took the whole of the morning to argue.

32. This sort of tactic may well be acceptable in other jurisdictions.  It is not acceptable in this jurisdiction and it will not happen again in this court.  If it does, the matter will simply be adjourned at my convenience so that the party affected, be it the prosecution or the defence, has the time to meet the arguments advanced in a comprehensive and presentable form so that I can be properly assisted by all parties and justice properly achieved.

Reporting of this judgment

33. The content of this judgment including my ruling may not be reported until the conclusion of the trial.