HKSAR v. CHAN KUI YUEN also known as THOMAS CHAN

CACC 444/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2014

(ON APPEAL FROM HCCC NO. 98 OF 2013)

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REASONS FOR DECISION
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Introduction

1. On 30 June 2005, the Central Government of PRC announced the appointment of Rafael Hui (RH) as Chief Secretary of HKSAR from 1 July 2005 to 30 June 2007.  As Chief Secretary, RH was an ex-officio member of the ExCo and after his term as Chief Secretary ended in June 2007, he remained a non-official member of the ExCo until January 2009.

2. The applicant was an executive director of Sun Hung Kai Properties Ltd (SHKP) and its two Co-Chairmen and Managing Directors were Thomas Kwok (TK) and Raymond Kwok (RK).  The applicant was a long-standing and trusted senior colleague of TK, having served SHKP for over 40 years.

3. The prosecution alleged that the applicant had conspired with TK, RK and RH’s friend Francis Kwan (FK), to pay bribes to RH.  Two of the eight charges (counts 5 and 7) in the indictment were directed at the applicant.

4. Count 5 of conspiracy to commit misconduct in public office alleged that the applicant, TK, RK and FK had conspired with RH between 1 March 2005 and 30 June 2007 that RH, as Chief Secretary, would wilfully misconduct himself in the course of or in relation to his public office by being or remaining favourably disposed to SHKP or its associates in return for a payment of $8.5 million.

5. Count 7 of conspiracy to offer an advantage to a public servant alleged that the applicant, TK, RK and FK had conspired with RH between 30 June 2005 and 20 January 2009 to offer RH, as Chief Secretary and an ExCo member, an advantage, namely $11.182 million as an inducement to or reward for or otherwise on account of RH’s performing or abstaining from performing or having performed or abstained from performing an act in his capacity as a public servant, namely being or remaining favourably disposed to SHKP or its associates.

6. The applicant, RH, and FK, were convicted of counts 5 and 7.  TK was convicted of count 5, but acquitted of count 7.  RK was acquitted of all charges.  The applicant was sentenced to 6 years’ imprisonment and having applied for leave to appeal against conviction and sentence, he seeks bail pending appeal.  The applicant is represented by Mr Ian Winter QC, Mr Graham Harris SC, Mr Isaac Chan and Mr Adrian Wong.

7. Mr David Perry QC, Mr Joseph Tse SC, Ms Maggie Wong, Ms Winnie Ho SADPP and Ms Irene Fan SPP, for the respondent, resist the application.

8. At the end of the hearing, I dismissed the application and indicated that I would hand down the reasons in due course.  These are the reasons.

Basic facts relevant to counts 5 and 7

9. There was no dispute that the applicant was involved, albeit indirectly, in the payments to RH of $8.5 million and $11.182 million, the subject matters of counts 5 and 7 respectively. 

10. TK paid the applicant two cheques, one for $4 million and one for $4.8 million on 20 and 28 June 2005 respectively.  A cashier’s order for $10.8 million drawn on an account of the applicant’s family company-Villalta, was paid to FK and it was from that $10.8 million that FK paid $8.5 million to RH by eight payments between 27 and 30 June 2005, a few days and a few hours before RH’s official appointment was announced.

11. It was not disputed that the applicant contributed $2 million of his personal funds to make up $10.8 million to pay FK and that FK retained $2.3 million before he passed on $8.5 million to RH.

12. On 9 November 2007, the applicant, using the Villalta account, remitted $12 million (US$1,542,961.45) to Wedingley, FK’s company in Singapore and on 20 November 2007, Wedingley remitted US$1,543,000 to FK’s account in Hong Kong.  Between 21 November and 12 December 2007, FK paid $10.182 million to RH and $1 million to his company (Top Faith).  The $11.182 million paid to RH by FK came from the applicant.

13. The applicant accepted that he was involved in the payments of the money, the subject matters of counts 5 and 7 to RH, but denied that they were bribes.  The defence case was that the $8.5 million was the balance of RH’s fees as a consultant of SHKP under an oral agreement concluded in the latter half of 2003 between TK and RH and that the $12 million paid to FK in November 2007 was his investment in FK’s product (AlcolOut) which was being marketed as a hangover cure.  The applicant claimed that he had no idea why the money ($11.182 million) ended up with RH and he suggested that FK and RH had misappropriated his $12 million.

The applicant’s position in this application

14. The jury must have rejected the defence case and it will be difficult to argue against that.  Mr Winter does not seek to do so seriously.

15. Mr Winter accepts that the prosecution was entitled to charge count 5 as the Common Law offence of Misconduct in Public Office and that it is an offence of a person to be paid millions of dollars just prior to becoming a public officer so that he might misconduct himself in public office.  Mr Winter says that “the applicant has never argued or does not now argue that counts 5 and 7 do not disclose an offence known to the law of Hong Kong because they do not allege a ‘discernable act of abuse of power’ or ‘a specific act favourable’ to SHKP.” 

16. Mr Winter says he accepts that “the allegation of conspiracy to commit misconduct in public office would be good in law as long as it alleged that RH agreed that he would, if necessary, misconduct himself in public office in return for the payment”.

17. Mr Winter says that the applicant’s case has always been fundamentally different from that of TK who argued that to support count 5, the prosecution must allege and prove that RH had agreed to perform a specific act favourable to SHKP and he says he had made applicant’s position clear throughout the trial.

18. Mr Winter argues that if the prosecution case was that the words “being or remaining favourably disposed” included an intention to act so as to show favour should such act become necessary, the prosecution should have said so.  Mr Winter accepts that “favourble disposition” gives rise to “the obvious implication that it would manifest itself in the form of useful information/advices and/or favourable decisions when such information/advices and/or decisions were called for”, but suggests that the prosecution had deliberately defined “favourable disposition” to exclude any intention on the part of RH to act in favour of or to show favour to SHKP.

19. Mr Winter goes to the extent of suggesting that the prosecution had specifically prevented “being or remaining favourably disposed” to bear its ordinary meaning, namely an inclination to favour.  Mr Winter relies heavily on what Mr Perry said to the jury in his final address:

“So although the purpose may not be explicit, the law says it’s sufficient if the prosecution establish a ‘general sweet’ situation, a friend in office. To have the warm glow of knowing, at SHKP, that you have a friend at the top of government. It is sufficient for the prosecution to prove that the money identified in each count was paid and accepted as a general sign of good relations…” (Day 113 page 107 lines 13 to 20)

20. Mr Winter suggests that the use of the words “warm glow”, “a friend” and “general sign of good relations” excludes any suggestion that RH would actually do anything to favour SHKP and without any intention to show favour to SHKP if necessary or at all, so Mr Winter argues, count 5 had been deprived of any legitimacy.

21. Mr Winter also emphasizes in his written submissions, as he did before the trial judge, that a person’s disposition concerns only his state of mind and cannot constitute a conduct.  He suggests that the offence of “misconduct in public office” requires an act to be committed by the public officer that constitutes a serious abuse of power and that “being or remaining favourably disposed” but without any intention to act is insufficient to constitute the act of abuse of power required for the offence of “misconduct in public office”.

22. In the circumstances, so Mr Winter argues, the applicant could not have been convicted of a conspiracy that involved no agreement that RH would act at all.  On that basis, Mr Winter suggests that counts 5 and 7 are unknown to the law of Hong Kong.

23. In so far as the judge, in rejecting a submission of no case to answer on counts 5 and 7, ruled that “it was not necessary for the prosecution to prove that (RH) was in fact favourable to SHKP” and then directed the jury that “the counts do not allege that the payments were made in return for any specific identifiable favour which (RH) was to perform or had performed.  And the law does not require that any particular favour be specifically identified”, Mr Winter suggests that the judge had been misled by the argument of TK’s counsel that a specific act of misconduct must be identified and had failed to deal with the applicant’s argument.

24. Apart from the aforesaid major ground of complaint, Mr Winter also suggests that the prosecution evidence was insufficient to show even a prima facie case that the applicant was a knowing party to the conspiracy alleged in count 5.  He suggests that the judge should have withdrawn count 5 from the jury at the close of the prosecution case.

25. Mr Winter emphasizes that count 7 alleged a conspiracy between TK, RK, FK and the applicant to bride RH by SHKP so that he would be favourably disposed towards SHKP.  He suggests that the conspiracy alleged in count 7 involved at least either TK or RK at its core and that the applicant joined that conspiracy because he was a loyal subordinate.  Mr Winter points out that it had always been the prosecution case that the applicant was only acting as a conduit for TK and/or RK and he refers to the following prosecution opening:

“(the applicant) is not going to be doing this on his own account. (The applicant) is not going to be paying all this money through (FK) to (RH). He’s going to be doing it for the people he has worked for, for over 40 years now, to whom he is loyal, and who is trusted by them. And it looks like the $12 million he pays out is covered by the $12 million that he gets later.”

26. Mr Winter argues that the acquittal of TK and RK of count 7 indicated that the jury was not sure of the conspiracy as alleged by the prosecution.  He suggests that the applicant had been convicted of a different conspiracy to that with which he was charged and that the applicant’s conviction on count 7 is inconsistent with the acquittal of TK and RK.  In the circumstances, Mr Winter suggests that the applicant’s conviction on count 7 is unsafe and unsatisfactory.

27. Mr Winter’s remaining argument concerns the length of time the jury was required to deliberate each day which he suggests was excessive and unreasonable.  He points out that the jury had deliberated for a total of over 45 hours and sometimes in excess of 10 hours a day.  He suggests that the jury’s verdict was a result of fatigue and pressure as indicated by their need for further assistance after 4 days deliberation.

28. Mr Winter also attacks the way in which the judge directed the jury on their request for further assistance, namely:

“We have focused on one count (count 7) for much time, but no verdict can be confirmed. We would like to seek for further assistance…”

29. Mr Winter suggests that the specimen direction given by the judge in response to the jury’s request was inappropriate and would cast doubt on the safety of the verdict on count 7.  Mr Winter emphasizes that the judge had given such a specimen direction to the jury three times, twice on the evening of 18 December 2014 (Day 130) and once on the morning of 19 December 2014 (Day 131).

30. Mr Winter also suggests in his written submission, which is not pursed in his oral argument that the repeated reference by the prosecution, that the applicant, TK and RK were property developers, had caused prejudice to the applicant.  He says that the prosecution tactic had undermined the safety of the convictions against the applicant.

Discussion

31. Mr Winter’s main argument rests on two premises, both of which, with respect, are not entirely relevant and in any event, are both false.

32. The applicant had not conceded at the outset that a conspiracy to commit misconduct in public office can be committed without the prosecution having to identify, allege or prove any specific, discernible or identified act of misconduct.

33. The applicant did not suggest that the allegation of conspiracy to commit misconduct in public office would be good in law as long as it alleged that RH had agreed that he, in return for the payments he received, would favour SHKP in a suitable way.  If he did make such a concession, he did not do so clearly.

34. It had always been part of the defence case that the offence of misconduct in public office required a specific act committed by the public official that constituted a serious abuse of power, duty or responsibility exercisable by him in the public interest and that “being or remaining favourably disposed” was insufficient as it did not point to any specific act of abuse of power to be performed by RH in return for the payments he received.

35. Mr Winter had at no time disassociated himself with such a defence.  Indeed in his attempt to invite the judge to quash counts 5 and 7, Mr Winter wrote:

“The words ‘being or remaining favourably disposed to SHKP’ would need to be replaced with such acts of misconduct or acts of a public servant as the prosecution allege were the intended object of the conspiracy.

In other words instead of being allegation of conspiring that (RH) should hold a certain state of mind the Counts would have to allege that (RH) agreed to act in a certain way should such an act become necessary or desirable during his tenure as a public servant.

…

That actual misconduct directly relating to the discharge of a public servant’s duties to the public is required…

…

…the prosecution must prove that (RH) agreed to misconduct himself when he became Chief Secretary….for conduct to amount to misconduct in public office, it must be wilful, intentional and culpable and it must amount to serious misconduct having regard to the responsibilities of the office and the office holder.

In other words the prosecution must prove that the conspiracy was not an agreement merely that (RH) would be or remain favourably to them but an agreement that (RH) would misconduct himself as Chief Secretary in a wilful, intentional, culpable and serious manner.” (Emphasis added)

36. Mr Winter was clearly suggesting, contrary to what he says in support of this application, that to support a charge of conspiracy to commit misconduct in public office, the prosecution must allege and prove a specific act favourably to the payer.

37. In the no case submission made on behalf of TK, Ms Montgomery QC reiterated her position that “in the absence of any identified act of misconduct particularized and proved counts 2 and 5 should not be left to the jury”.  Mr Winter did not indicate that he would disassociate himself with Ms Montgomery’s submission.

38. The judge clearly understood the defence case, based on the submissions of Ms Montgomery and Mr Winter, was that the prosecution must allege and prove a specific act to be performed by RH in favour of SHKP.  The judge, in dismissing the no case to answer submission, said:

“I do not accept that the particulars disclose no offence known to law, and nor do I accept that all these counts are bad in law…The words ‘sweetener’ or ‘sweeten’ or the phrase ‘to keep him sweet’ were then used by Mr Perry to explain how it was, according to the prosecution, that (RH’s) favourable disposition was to be obtained and/or maintained…The prosecution have therefore always put their case on this basis. Nobody can conceivably be taken by any surprise or realistically claim to be misled or wrongfooted…(The Prosecution’s) position, as it was explained to the jury…is that it is not necessary for the prosecution to prove that (RH) was in fact favourable to SHKP Ltd. Their case is that (RH) was paid sweeteners so that he would be or remain favourably disposed to SHKP Ltd. He thereby became their man in government, regardless of whether he did in fact use his eyes or ears, or do anything favourable to SHKP Ltd… It is a legitimate way of putting the prosecution case in law, and I find a case to answer on the evidence in relation to these counts.”

39. Mr Winter appears to be suggesting that the judge had misunderstood his position.  He wrote in his written submission that “his articulation of the argument was partly obscured by RK’s arguments…” If that was the case, one wonders why the judge’s mistake was not brought to his attention.

40. It is also incorrect to suggest that the prosecution had deliberately defined the term “favourable disposition/favourably disposed” or its Chinese equivalent (傾向優待) “qingxiang youdai” to exclude any suggestion that RH, having accepted the money, would show favour to SHKP if and when necessary or suitable.  Mr Winter might have wished to bind the prosecution to his suggestion that “favourable disposition/favourably disposed” did not include any intention on the part of RH to act in favour of SHKP, but there was no indication that the prosecution was prepared succumb to Mr Winter’s wish.

41. Mr Perry QC, in the course of discussing with the judge on how the jury should be directed, said:

“It’s paragraph 4 in which we make the point that your Lordship made at the outset. It is not necessary for any particular favour to be proved or identified. Nonetheless, the evidence may disclose, and the jury might conclude, that (RH) did in fact carry out one or more specific acts or favour towards SHKP…

The fact that there is evidence on which the jury could conclude that RH carried out one or more acts of specific favour does not raise any Brown issue. And the way to conceptualise the point is that the act of favour would itself embrace an allegation of facourable disposition, and is in no way inconsistent with it. So in other words, an allegation of favourable disposition could be proved by an act of specific favour, and it would not be the case that an act of specific favour would have to be proved…before they could conclude that there was a well-founded allegation of favourable disposition. (Day 105 page 7 line 11 to page 8 line 11)

My Lord, as we’ve made clear in paragraphs 4 and 5, if there is an allegation of favourable disposition, the jury could conclude that as a result of that favourable disposition, (RH) carried out one or more acts of specific favour.” (Day 105 page 11 lines 9 to 13)

42. Mr Perry reiterated his position in his final address to the jury by saying:

“…The law does not require that any specific favour in return is identified. Of course, you may come across particulars acts of favour which may evidence a favourable disposition, because a favourble disposition could embrace the prospect of future acts of favour.

…

But there’s another reason why it’s not necessary for the payments to be related to the performance of some specific acts by (RH).  The law is realistic in this regard, and based on good, sound, practical sense.  In the very nature of misconduct and corruption of the sort alleged in this case, it is frequently impossible to link a bribe or a payment to the specific performance of any act.  A bribe may be given for a purpose that may not be explicit.  A bribe may be given for a purpose that cannot be discerned, on the fact of it, but which is readily apparent from the circumstances.  Why else would you pay the man who was about to be Chief Secretary millions of dollars? Businessmen don’t do that.  They’re not running a charity. ”

43. It is true that the prosecution had refused to amend the charge, as requested by Mr Winter, by adding any reference that RH would or might show favour to SHKP if and when necessary or suitable.  In my view, the reason was obvious.  There was no need to do so as the phrase “favourable disposition/favourably disposed” or its Chinese equivalent “qingxiang youdai” (傾向優待) meaning “an inclination to treat favourably” already embraced such a concept.

44. Me Perry’s position was clear that by agreeing to be favourably disposed towards SHKP after receiving the very large sums of money, RH, as Chief Secretary, was willing and able to assist SHKP in suitable way as and when it became necessary.  Mr Perry had in fact given many examples to the jury to show that RH might have shown acts of favour towards SHKP and such favour would be supportive of a general sweetener situation.

45. Mr Winter himself recognized that “remaining favourably disposed” carried the same meaning as “an intention to treat favourably”.  In the course of discussion between counsel and the judge, the interpreter was asked to translate the Chinese version of “being or remaining favourably disposed” and the following exchanges followed:

“The Interpreter: ‘That is, having an inclination or maintaining an inclination to treat…favourably.’

His Lordship:…So what is the difference between that, ‘having an inclination or maintaining an inclination to treat favourably’…and ‘being or remaining favourably disposed to’?

Mr Winter: There isn’t any, if your Lordship defines ‘remaining favourably disposed’ as ‘an intention to treat favourably’…we submit that’s what it means, and that’s what it means in Chinese.

Of course, if your Lordship were to define it otherwise, namely to define it as merely ‘no intention to treat favourably, but an intention to remain of a favourably disposition’, then it ceases to mean the same thing.” (Day 105 page 44 lines 8 to 25)

46. Mr Winter further said: “…these are Chinese jurors.  In fact, perfectly understandably, when the translator has been translating questions put by Mr Perry in cross-examination to in particular (RH), she was translating the words ‘remaining favourably disposed’ using ‘yau doi’ (優待) (to treat favourably), perfectly correctly, so the jury understandably will, at the moment, comprehend this allegation as an allegation that it’s an agreement to treat SHKP favourably.” (Day 105 page 45 lines 7 to 15)

47. It appears that it was Mr Winter’s idea, at some stage, that the term “favourably disposed” should exclude any intention to treat favourably despite its clear and obvious meaning and implication.

48. Mr Winter relies heavily on the exchange between counsel and the judge on how the jury should be directed.  It is perhaps necessary to set out the exchange:

“Mr Winter: …My learned friend said yesterday that the agreement was that (RH) would show, or would be favourably disposed. I simply want to know is it both elements, or is it only the latter element… But the repeated use of the word ‘specified’ before ‘act’ makes it appear that there might be an element of agreement to act.

Now, your Lordship merely ruled at the end of the prosecution’s case that as a matter of law, it is an offence to agree merely to remain favourably disposed without also agreeing to act, should that become necessary. I want to know whether the prosecution allege that we entered into an agreement with (RH) that he would act in our favour, should that become necessary, or not.

His Lordship: …Mr Perry, I think your answer is ‘no’?

Mr Perry: The answer is ‘no’, my Lord, and it’s catered for by the way we have addressed the point in paragraphs 4 and 5. It’s quite clear. The agreement is the agreement as alleged in the counts of the indictment, and the analysis of the legal ingredients is as set out in this note.

His Lordship: It is not part of your case that the agreement engaged or involved an understanding that (RH) would do an act, should it become necessary, a specific act, should it become necessary?

Mr Perry: Yes. It’s the general sweetener situation.

His Lordship: Yes, all right. Thank you.

Mr Winter: I’m so sorry, my Lord. Do I understand it that your Lordship – if your Lordship removes the words ‘a specific act’ from your Lordship’s question, I take it that the answer is ‘yes’? In other words, that the agreement does not involve any agreement that he would act? I take the answer is ‘yes’; is that right?

Mr Perry: My Lord, if I may say so, this is not a fruitful exercise because my leaned friend is seeking to assert that there is something magical about ‘a specific act’. My Lord, as we’ve made clear in paragraphs 4 and 5, if there is an allegation of favourable disposition, the jury could conclude that as a result of that favourable disposition, (RH) carried out one or more acts of specific favour.

All the prosecution have to allege, and we have alleged, and it’s what the law requires, is an allegation of favourable disposition. And that is clear.” (Day 105 page 9 line 20 to page 11 line 17)

49. Mr Winter suggests that the prosecution had made its case clear that “favourable disposition” excluded any intention of RH to actually show favour to SHKP.

50. I do not agree with Mr Winter’s suggestion at all.  In fact just before the aforesaid exchanges, both the judge and Mr Perry had clearly stated the prosecution case:

“His Lordship: Your point is subsumed in the principal question of ‘what is favourable disposition?’….If your case is, as you have I think all along made clear, and as I endorsed at the close of the prosecution case, that it is a case of favourable disposition, in which you do not have to prove a specific favour, then such favour as there is or that you can point to is merely an example or the result of the payment to keep (RH) sweet so that he would be favourably inclined or disposed towards SHKP.” (Day 105 page 3 lines 13 to 23)

“Mr Perry: …It’s in paragraph 4 in which we make the point that your Lordship made at the outset. It is not necessary for any particular favour to be proved or identified. Nonetheless, the evidence may disclose, and the jury might conclude, that (RH) did in fact carry out one or more specific acts of favour towards SHKP…

The fact that there is evidence on which the jury could conclude that (RH) carried out one or more acts of specific favour does not raise any Brown issue. And the way to conceptualise the point is that the act of favour would itself embrace an allegation of favourable disposition, and is in no way inconsistent with it. So in other words, an allegation of favourable disposition could be proved by an act of specific favour, and it would not be the case that an act of specific favour would have to be proved …before they could conclude that there was a well-founded allegation of favourable disposition.” (Day 105 page 7 line 11 to page 8 line 11)

51. It was always the prosecution case that RH, having received the sums of money, had and/or might favourably treat SHKP and “favourable disposition” embraced such an allegation.  The argument that the prosecution had deliberately given a different meaning to “favourable disposition” than one that is generally understood and had excluded any suggestion that there was an intention on the part of RH to show favour to SHKP is unrealistic.

52. I do not wish to speculate what led the judge and Mr Perry to say “No” to Mr Winter’s question when he said he wanted to know whether the prosecution alleged that there was an agreement that RH would act in favour of SHKP, should that become necessary.  The judge’s immediate response that “it is not part of (the prosecution) case that the agreement engaged or involved an understanding that RH would do an act, should it become necessary, a specific act, should it become necessary” seems to indicate that the judge had not fully apprehended Mr Winter’s question.

53. When Mr Winter pressed on, Mr Perry said: “…if there is an allegation of favourable disposition, the jury could conclude that as a result of that favourable disposition, RH carried out one or more acts of specific favour.”  Mr Perry’s response clearly indicated that it was the prosecution case that under the conspiracy in question the parties had agreed that RH would act in favour of SHKP when it was necessary and suitable.

54. The “offending part”, according to Mr Winter, that Mr Perry said to the jury on Day 113 at page 106-107 must be understood in its proper context.  Mr Perry prefaced such “offending part” by saying to the jury:

“But there’s another reason why it’s not necessary for the payments to be related to the performance of some specific acts by RH. The law is realistic in this regard, and based on good, sound, practical sense. In the very nature of misconduct and corruption of the sort alleged in this case, it is frequently impossible to link a bribe or a payment to the specific performance of any act. A bribe may be given for a purpose that may not be explicit. A bribe may be given for a purpose that cannot be discerned, on the face of it, but which is readily apparent from the circumstances. Why else would you pay the man who was about to be Chief Secretary millions of dollars? Businessmen don’t do that. They’re not running a charity.”

55. In my view, Mr Perry was just trying to emphasize that it was not necessary for the prosecution to allege or prove any specific acts of favouritism to be performed by RH towards SHKP.  The slightly loosely use of the terms “general sweet” and “general sign of good relations” was just a reference to “favourable disposition” and was not an indication that the prosecution had put its case on the basis that RH would never act in favour of SHKP.  There was no conceivable reason for the prosecution to make such a concession.

56. If Mr Perry’s submission was somehow faulty, the judge had correctly and properly directed the jury on the point of law in question when he said, in his summing up to the jury, the following:

“..In the context of paying any public official a sweetener, which you might think would necessarily involve subtlety and secrecy, it may be very difficult to show that any favour was in fact performed. A public official may have acted in exactly the same way, or objectively made the correct decision, or done the right thing, whether he was sweetened or not.

The reason the law does not require a particular favour to be identified is, you may think, obvious. The acceptance of money by a public official in return for him in a general way, rather than in a specific way, being favourably disposed to the person or persons giving him the money, is itself capable of amounting to misconduct by virtue of the breach of duties and obligations he owes to the public as a public official.

The evil or the vice of these kinds of payments is that no-one could have confidence in the acts of a public official who, through the offer and acceptance of money, has been kept sweet by private interests. And the confidence which the public are entitled to have in the fair and impartial performance of a public official’s duties and obligations is thereby eroded or destroyed.

….

The fifth ingredient requires that you be sure that the act of being or remaining favourably disposed to SHKP and/or its various entities was something that was identifiable within the scope and range of (RH’s) public duty.

….

What you must therefore be sure about, where no specific act of favouritism can be shown, is that being or remaining favourably disposed to SHKP’s interest as a result of the payment was something which he, (RH), was able to do because it fell within the range or scope of the public duties of that particular public servant, rather than something he was not able to do because it fell outside the range or scope of the public duties of that particular public servant, or fell within his private capacity.”

57. In any event, I accept Mr Perry’s argument that in the context of the present case, “favourable disposition” by RH towards SHKP in return for payments of the large sums of money is itself a gross and obvious act of misconduct in relation to his public office, and it is itself capable of constituting an act in public office to support a charge of misconduct in public office as well as a charge of offering or accepting an advantage under the Prevention of Bribery Ordinance Cap 201. 

58. In dealing with a bail application pending appeal by TK, this court wrote in the reasons for decision dated 23 March 2015 (the judgment):

“63. As Chief Secretary, the number two man in the hierarchy of the HKSAR Government, Rafael Hui held an office of trust and confidence concerning the public. He had taken oaths, both as a principal officer and as a member of the ExCo to serve HKSAR ‘conscientiously, dutifully, in full accordance with the law, honestly and with integrity’. As Chief Secretary and an ExCo member, Rafael Hui would have unlimited information on government policy and could have widespread influence on every major government decisions affecting every business as well as every individual.

64. It must be remembered that, at all material times, HKSAR and SHKP had competing interests, particularly in relation to land development of which SHKP is one of the few major players in Hong Kong. At the time of the payments to Rafael Hui, SHKP and HKSAR were engaged in commercial dealings on large scale and important projects in which SHKP had a very significant financial interest. Any information on government policy is extremely valuable to property developers in Hong Kong and they would probably be prepared to pay very large sums of money if a senior public official, such as Rafeal Hui, was prepared to be favourbly disposed towards it.

65. With respect, this is not a case of favourably disposition per se. This is a case of favourable disposition obtained by the payment of millions of dollars and the obvious implication was that the favourable disposition would manifest itself in the form of useful information/advices and/or favourable decisions when such information/advices and/or decisions were called for.

66. It is incorrect to suggest that the prosecution had completely disavowed the case that by favourable disposition it meant that by paying Rafael Hui millions of dollars, SHKP expected that he would act in favour of SHKP should that become necessary, a point emphasized by Ms Montgomery in her oral submissions.

…

69. Mr Perry clearly was suggesting that the jury could conclude that by accepting millions of dollars from the applicant (TK), it was expected that Rafael Hui would render such assistance to SHKP as when it became necessary to do so, but he was, at the same time, reiterating the prosecution’s position that it was not necessary to allege or to prove any act of specific favour as contended by the defence. That, in my view, was a correct stance to take.

70. By accepting millions of dollars from the applicant (TK) and in return agreeing to become SHKP’s ‘eyes and ears’ in government, the only logical and reasonable inference was that Rafael Hui would act in favour of SHKP in a general way if it became necessary. The court is entitled to take the view that a businessman will not pay large sums of money to a senior government official for nothing and it will be naïve to think that, having received large sums of money from a businessman, the official, in return, will not feel oblige to render such favour or assistance to the businessman as and when the need for such favour or assistance arises. The obligation is readily and easily discernible and the term ‘favourable disposition’ must be considered in such context.

…

72. In my view, being favourably disposed towards private interests by a public officer because he had been paid a large sum of money constitutes a gross and obvious act of misconduct. The acceptance of the payments corrupts the core characteristics of public service and taints each and every official act of the public officer who can no longer claim to be impartial or loyal to the public interest.

73. By accepting millions of dollars from the applicant (TK) in relation to his public office as Chief Secretary so that he would be favourably disposed towards SHKP, Rafael Hui, not only failed to keep his oath, but had completely destroyed any trust and confidence that the public had in him.  What he did had injured public interest and called for condemnation and punishment: …”

59. The reason why the acceptance of a large sum of money by a public official as senior as RH who, in return, agrees to be favourably disposed towards the paying private entity that has serious business dealings with the government is serious enough to constitute misconduct in public office is because such arrangement gives rise to the obvious implication that public official may, in breach of his public duties, render assistance to the private entity as and when it is suitable and convenient to do so.

60. I maintain what I had said at paragraph 75 of the judgment:

“When a public officer in the position of Rafael Hui accepted a very large sum of money from SHKP days and hours before he was formally appointed as goodwill payments or ‘sweeteners’ so that he would be, while he was in office, favourably disposed towards SHKP, a property developer that had competing interests and was engaging in commercial dealings with HKSAR, it would be regarded as a misconduct in public office as if he accepted the payment and agreed in return to do SHKP a specific favour. It is, in my view, correct for the prosecution to adopt such a stance and for the judge to direct the jury on the way he did.”

61. RH should never have put himself in a position in which his own interests conflicted with his position as Chief Secretary and an ExCo member.  RH clearly did and on the facts of the case, what he did constituted misconduct in public office in relation to his public office.  I wish to repeat what Sir Anthony Mason NPJ said in HKSAR v Sin Kam Wah & Another (2005) 8 HKCFAR 192 at p 213H-J:

“I should make it clear, however, that acceptance of a ‘general sweetener’ by a public officer can, in appropriate circumstances, amount to misconduct in public office.”

62. I am firmly of the view that by agreeing to be or remain favourably disposed towards SHKP after receiving the payments in question RH had committed a continuous “act of favouritism” that supports a charge of misconduct in public office.  It is “a course of conduct” referred to in section 159A of the Crimes Ordinance Cap 200.

63. I do not find it necessary or desirable to deal with, in detail, the rest of Mr Winter’s submissions.  I do not accept Mr Winter’s contention that the prosecution evidence was insufficient to show a prima facie case that the applicant was a knowing party to the conspiracy alleged in count 5. 

64. I have considered the facts of case, including the defence evidence.  In my view, the judge was right to reject a no case submission and on the evidence in its entirety, the jury was entitled to find, as they must have done, that there was a conspiracy to commit misconduct in public office and that the applicant was a knowing party to such a conspiracy.

65. The prosecution had no doubt alleged, under count 7, a conspiracy between TK, RK, FK and the applicant to offer an advantage to RH, but the jury was entitled not to accept the entire case of the prosecution.

66. The undisputed evidence indicated that shortly before FK paid $11.182 million to RH, the applicant paid FK an almost identical amount to FK in a circuitous and devious route involving the use of offshore companies’ bank accounts.

67. The payments of $12 million to the applicant by TK only took place many months later in April 2008.  Both TK and RK denied that they were involved in the payment of $11.182 million to RH and the applicant himself suggested that TK and RK were not involved in such a payment.  The jury must have accepted that the $11.182 million paid to RH came from the applicant and rejected the applicant’s case that the $12 million he paid FK was his investment in AlcohOut.

68. The jury could have acquitted TK and RK because they were unsure that the money paid to RH via FK in fact came from them.  The jury could have a doubt about the prosecution case against TK and RK that the applicant was just their conduit and acquitted them on that basis.  They were following the judge’s direction to return separate verdicts on each count against each defendant.  The jury’s verdict is readily explicable.

69. With respect, the applicant had not been convicted of a conspiracy different from that alleged by the prosecution.  Under count 7, there had always been just one conspiracy, a conspiracy to offer advantage to RH, Chief Secretary and an ExCo member of HKSAR for him to be favourably disposed towards SHKP.  The jury was entitled to find that the applicant was a knowing party to such a conspiracy.

70. An important facet of the case was that at all material times, SHKP (an important and major player in property development in Hong Kong) and HKSAR were engaged in commercial dealings on very large scale and important projects that worth billions of dollars.  It was the prosecution case that in his capacity as Chief Secretary and an ExCo member, RH was in position to assist SHKP and the payments were made to him to secure his favourable disposition.

71. I fail to see how the prosecution’s reference and/or emphasis to the jury that the applicant, TK and RK were property developers can be the subject matter of any legitimate complaint to upset a conviction, particularly when no such complaint had been made at trial.  I am surprised that it is being put forward as an arguable ground of appeal.  It is perhaps fair to point out that Mr Winter has not pursued this ground in his oral submission.

72. When the jury is unable to reach a verdict on a charge and seek assistance from the judge, it is conventional to give them the specimen direction.  It is important that the judge, in giving such a direction, would adhere to the following principle:

“First, jurors have a duty to give a true verdict according to the evidence. Each juror has this responsibility. Each juror has sworn or affirmed to do so. It is a responsibility which rests on each juror. Secondly, deliberating together when views are exchanged is an essential process for the jury in reaching a decision. This deliberative process has rightly been regarded as the strength of the jury system. This process enables jurors to pool their experience and wisdom. Jurors should not only put their views but should listen to and consider the views of others. As a result, a juror may be persuaded to accept the views of others and views initially held may be changed. In deliberating, jurors must of course approach their task objectively. Thirdly, no juror should come to a decision for the sake of conformity or out of submission to pressure by other jurors. Ultimately, each juror must honour the oath or affirmation he has taken to give a true verdict according to the evidence. No juror should compromise, or go against his own view based on the evidence which is conscientiously held after the deliberative process has been gone through. See R v Accused [1988] 2 NZLR 46 at p. 58 lines 15-45.” (See the judgment of Li CJ in Tam King Hon v HKSAR (2006) 9 HKCFAR 206 at p 213)

73. I have read the judge specimen direction to the jury, be it twice or three times on 18 and 19 December 2014, I am not persuaded that the specimen direction given by the judge had infringed the principles set out in Tam King Hon (supra).  In my view, it was reasonable and appropriate for the judge to give the specimen direction as he did.  The applicant had not complained against the way the judge dealt with the issue.

74. The jury was required to deliberate in general between 9.30 am to shortly after 8 pm each day, no doubt with tea/lunch/dinner breaks in between.  There are authorities to the effect that, as a general rule, it is undesirable for juries to continue to deliberate after 8 pm although it is a matter for the judge to determine on a case-sensitive basis.  “…we endorse the broadly held view that jurors should generally cease deliberating by about 8 o’clock at night and then rest overnight before resuming their deliberations together after breakfast the following morning.  That is the view on which trial judges should act.” (Per Bokhary PJ in Chan Kar Leung v HKSAR (2006) 9 HKCFAR 827 at p 834 H-I)

75. The judge was aware of the authorities, but nevertheless took the view that it was appropriate for the jury to retire at about 8.45 pm when they were “relative young jury of nine persons.” The judge was entitled to take the view he did and, in my view, what the judge did could not be the subject matter of any legitimate complaint.

76. Further, none of the jurors had complained about such hours of deliberation and there was no indication that any of them felt that he/she had to operate under pressure or with fatigue.  No one suggested to the judge that he should not allow the jury to deliberate for such “long hours”. It is slightly surprising that it is now used as a ground of appeal with a view to upset what is otherwise a proper verdict returned by the jury.

Conclusion

77. I am not persuaded that the proposed grounds of appeal as presently argued by Mr Winter have any real chance of success.  Given that the appeal is now set to start in November 2015, less than 6 months from now, there is no other basis to grant the applicant bail pending appeal.  The application is therefore dismissed.