HKSAR v. CHAN YUN TO

FAMC No. 50 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 50 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 421 OF 2010)

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Between:

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D E T E R M I N A T I O N

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Chief Justice Ma:

1.  The Applicant, the Secretary for Justice, applies for leave to appeal from a decision of the Court of Appeal in which the Respondent’s appeal from his conviction in the District Court, was allowed.  The Respondent had been convicted of conspiracy to offer an advantage to an agent contrary to s. 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.  The application is made under the substantial and grave injustice ground.

2.  The facts are fully contained in the Reasons for Judgment of the Court of Appeal handed down on 25 August 2011.  The Respondent was a bodybuilding athlete who, in October 2005 at the 40^th Asian Men’s Bodybuilding Championships in South Korea, won a gold medal in the welterweight category. He was later tested for drugs and traces of a banned substance were found in the urine sample provided.  He was banned from competition by the Asian Bodybuilding and Fitness Federation (the ABFF) for two years.  The Hong Kong China Bodybuilding and Fitness Association (the HKCBA), which was affiliated to the ABFF, was also fined US$9,000 (this was in respect of three Hong Kong athletes, including the Respondent, who had been found to have taken banned substances).

3.  The conspiracy charge centered on the payment of US$10,000 that was allegedly offered as a bribe to one Paul Chua so that he, as an agent of the ABFF (the organization that had imposed the two year suspension on the Respondent), would try to shorten or lift the Respondent’s suspension.  The conspiracy was said to involve the Respondent, his coach (Ho Ling Kwong) and the Chairman of the Hong Kong China Bodybuilding and Fitness Association (Chan Siu Man, the first Defendant in the trial).

4.  The evidence before the District Court was to the effect that the Respondent was asked to pay a “fine” of US$10,000 in order to pursue an appeal against the suspension imposed on him.  He had been told by the first Defendant and Ho that the HKCBA did not have the means to pay the fine imposed on it.  If the Respondent paid the said sum of $10,000, representations could be made to shorten the suspension imposed on him.

5.  In the District Court, although there was no evidence that the Respondent had ever been told that the $10,000 would be paid as a bribe (and he certainly did not at any stage admit this), the learned Judge found that because the Respondent must have known of the relevant rules and regulations of the governing bodies, it was to be inferred that he must therefore have known that there was no provision allowing a payment of money to be substituted for a suspension order.  Accordingly, it was to be inferred that the Respondent must have known that the money would be used as a bribe.

6.  The Court of Appeal was not satisfied that this was the only inference that could be drawn.  The facts were also consistent with an inference the Respondent thought he was merely paying a fine so as to facilitate an appeal and that the ABFF might find some legitimate way to reduce the period of his suspension. As stated earlier, the evidence against the Respondent was essentially that he was ordered to pay a “fine”.

7.  The important paragraph in the Judgment of the Court of Appeal is contained in para. 52:

“In these circumstances, in our judgment, it was not sufficient for the judge, on the limited finding of fact that the applicant must have known the rules of competition, to infer thereby that he must also have known of the true nature and extent of the possibly more arcane rules related to disciplinary proceedings, considerations of clemency and matters of that kind, matters which in a great many international sports are more the province of the administrators than the athletes. If there was evidence upon which the judge was able to draw the inference that the applicant must also have known of these rules it was incumbent on her to identify that evidence. This, with respect, she failed to do so.”

8.  Mr Wesley Wong, who appears for the Applicant, could not really point to any other evidence to enable an irresistible inference to be drawn of the requisite knowledge.  He referred to the amount that was offered but here, as stated above, the amount that the HKCBA was fined, was US$9,000.  In the Respondent’s video recorded interview, he had said that he had been told if he paid the fine levied on the HKCBA (which, as stated earlier, could not afford to pay the fine), representations could be made to negotiate for a lighter suspension on him.

9.  In our judgment, it simply cannot be demonstrated that a substantial and grave injustice has occurred. 

10.  The application for leave is dismissed.