FACC Nos. 12-15 of 2016

IpsofactoJ.com: International Cases [2017] Part 6 Case 7 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Rafael S.Y. Hui

(許仕仁)

- vs -

Hong Kong SAR

CHIEF JUSTICE GEOFFREY MA

JUSTICE JOSEPH FOK PJ

JUSTICE PATRICK CHAN NPJ

JUSTICE FRANK STOCK NPJ

JUSTICE MURRAY GLEESON NPJ

14 JUNE 2017


Judgment

The Court

  1. The appellants were convicted of a conspiracy the alleged object of which was for the 1st appellant to engage in misconduct in public office.[1] Immediately before, and in anticipation of, his appointment to a senior public office, the 1st appellant received, from the other appellants, large payments of money. The prosecution case was that these were bribes, not in contemplation of any specific act or omission, but in order to secure an improper inclination and that, in return for the payments, the 1stappellant agreed to be or remain favourably disposed, in office, to commercial interests associated with the other appellants. The certified question[2] involves the resolution of the issue whether such an agreement is capable of answering the description of an agreement on the part of the 1st appellant to misconduct himself in the course of or in relation to his public office. The appellants contend that no relevant act of misconduct is involved. For the reasons that follow that contention fails.

  2. A. Background

  3. The factual background to these appeals, helpfully set out at length in the judgment of Lunn VP in the Court of Appeal,[3] lies in the relationship between a senior public servant employed by the Government of the Hong Kong Special Administrative Region (“HKSAR”) and senior executives of a large Hong Kong property developer. For the purposes of this judgment, a summary of that background will suffice.

  4. A.1 The individuals concerned

  5. Hui Si-yan Rafael (“Rafael Hui”) joined the Civil Service in 1970 and rose to become, in 1995, the Secretary for Financial Services of the HKSAR Government. He resigned from that position in 2000 and, on 7 June 2000, was appointed Managing Director of the Mandatory Provident Fund Scheme (“MPFS”) Authority for a period of four years. Although he resigned with effect from 1 January 2003, his service was extended until 14 August 2003. Having worked as a consultant in the private sector for a brief period (described below), Rafael Hui re-entered public service on 30 June 2005 and was appointed Chief Secretary of the HKSAR Government. He served as Chief Secretary from 1 July 2005 until 30 June 2007 and, as such, was an Official Member of the Executive Council (“ExCo”). Following the period of his appointment as Chief Secretary, Rafael Hui became a Non-Official Member of ExCo from 1 July 2007 to 20 January 2009. Rafael Hui was 1st defendant at trial and 1st appellant below and in this Court.

  6. Sun Hung Kai Properties Limited (“SHKP”) is a major property developer and publicly listed company in Hong Kong under the control and management of members of the same family. At the time of the events in question, Kwok Ping-kwong Thomas (“Thomas Kwok”) and his brother Kwok Ping-luen Raymond (“Raymond Kwok”), were its Co-Chairmen and Managing Directors. Thomas Kwok was 2nd defendant at trial and 2nd appellant below and in this Court; Raymond Kwok was 3rd defendant at trial.

  7. Chan Kui-Yuen (“Thomas Chan”) was an executive director of SHKP and was 4th defendant at trial and 3rd appellant below and in this Court.

  8. Kwan Francis Hung-sang (“Francis Kwan”) was a close friend of Rafael Hui and was 5th defendant at trial and 4th appellant below and in this Court.

  9. A.2 Rafael Hui’s relationship and dealings with SHKP

  10. In 2003, Rafael Hui began to work in the private sector as a consultant to SHKP and Thomas Kwok and Raymond Kwok, as well as their elder brother Walter Kwok. Subsequently, a written service agreement was entered into between a company controlled by Rafael Hui, Top Faith Enterprises Limited (“Top Faith”), and Sun Hung Kai Real Estate Agency Limited (“SHKR”) under which Top Faith would provide consultancy services and professional advice to SHKR from 1 March 2004 for two years. The agreement provided that SHKR would pay Top Faith an annual consultancy fee of HK$4.5 million and provide it with an office. Although the agreement was terminated in March 2005, the full HK$9 million for two years’ service was paid on the authorisation of Raymond Kwok. An office was provided to Top Faith in One IFC, a prime commercial building in Central owned by a company in which SHKP was a principal shareholder. Rafael Hui used this as his office and the expenses for it were paid by SHKR and Raymond Kwok and/or Thomas Kwok.

  11. From 2000, a number of loans were advanced to Rafael Hui and Top Faith by Honor Finance Company Limited (“Honor Finance”), a SHKP subsidiary whose business was principally to provide mortgage loans to purchasers of properties developed by SHKP. A first loan was granted to Rafael Hui on 31 March 2000 for HK$900,000 for 38 months at prime lending rate and this was repaid in full with interest on the due date. A second loan was granted to Rafael Hui on 18 December 2001 for HK$1.5 million and this was also repaid in full with interest. A third loan was granted to Top Faith in May 2004 for HK$3 million for 12 months. Although interest was specified at 3% per month on overdue sums, this was never paid and the loan was extended annually until 2010.

  12. On 14 February 2003, having previously lived in government quarters, Rafael Hui and his wife moved into two conjoined flats in SHKP’s Leighton Hill development.[4] The two flats were respectively owned by a Kwok family private company and a SHKP subsidiary. Subsequently, on 26 November 2003, two tenancy agreements in respect of the flats were executed, backdated to 1 April 2003, for a period of one year and at a monthly rental of HK$55,000.

  13. A.3 Dealings between SHKP and the MPFS Authority/the Government

  14. The MPFS Authority rented substantial parts of One IFC, pursuant to three leases which all expired on 31 March 2004. One of those leases was signed by Rafael Hui as Managing Director of the MPFS Authority. At the end of 2002, FPD Savills recommended to the MPFS Authority that it should renew its existing leases at One IFC for six years after their expiration. This recommendation was endorsed by a Joint Committee of the MPFS Authority, of which Rafael Hui was a member. He did not attend the meeting at which the renewal decision was made but was circulated with the papers and a voting slip and approved the lease renewals. In contrast, the Chief Executive of the Hong Kong Monetary Authority (“HKMA”) abstained from voting due to his potential conflict by reason of the HKMA’s leasing options at Two IFC. On 10 June 2003, Rafael Hui signed the letter of acceptance on behalf of the MPFS Authority in respect of the lease renewals.

  15. During the time when Rafael Hui was Chief Secretary, there were substantial commercial negotiations between SHKP and the HKSAR Government. These included negotiations relating to two major property development projects, namely the Ma Wan Park Project and the West Kowloon Cultural District (“WKCD”) Project, in which SHKP had a significant interest. In particular, as Chief Secretary, Rafael Hui was the Chairman of the Steering Committee of the WKCD Project.

    A.4 The HK$8.5m and HK$11.182m payments made to Rafael Hui

  16. In the period between 27 and 30 June 2005, immediately before Rafael Hui took the oath of office as Chief Secretary, eight payments totalling HK$8.5 million were made into his account with the Standard Chartered Bank. These were made either directly or on the direction of Francis Kwan and came from a sum of HK$10.8 million which Francis Kwan had received, in the form of a cashier’s order, from an account in the name of Villalta, a company controlled by Thomas Chan and his family.

  17. The payments of HK$8.5 million to Rafael Hui came from and were made on the ultimate directions of Thomas Kwok, who paid HK$4 million and HK$4.8 million to Thomas Chan by cheques dated 20 and 28 June 2005 respectively.

  18. In the period between 21 November and 12 December 2007, payments totalling HK$10.182 million were made by Francis Kwan from his account with the Hang Seng Bank to the account of Rafael Hui with the Standard Chartered Bank. Further, on 21 November 2007, a payment of HK$1 million was made by Francis Kwan from his account with the Hang Seng Bank to the account of Top Faith.

  19. The prosecution alleged that the source of the HK$10.182 million was ultimately also Thomas Kwok. On 9 November 2007, HK$12 million was remitted from an account in the name of Villalta, operated by Thomas Chan and his family, to an account with DBS Bank in Singapore in the name of Wedingley Limited (“Wedingley”), a BVI company. On 20 November 2007, US$1.543 million was remitted from Wedingley’s DBS account to an account of Francis Kwan with DBS Bank in Hong Kong, where it was split into two time deposits. Loans raised on the security of those deposits were the source of the HK$10.182 million paid to Rafael Hui. Subsequently, on 22 and 30 April 2008, Thomas Kwok paid two cheques to Thomas Chan for HK$5 million and HK$7 million respectively and, on 30 April 2008, Thomas Chan transferred HK$13 million to the account of Villalta. On 7 November 2008, Thomas Kwok paid Thomas Chan a further HK$6 million.

  20. A.5 The non-disclosures

  21. In his capacity as Managing Director of the MPFS Authority and as a member of ExCo, both during his tenure as Chief Secretary and thereafter as a Non-Official Member, Rafael Hui was subject to duties[5] to make disclosures of any interests that might give rise to conflicts between his personal interests and his public duties. In addition, any member of ExCo with interests in a specific topic to be discussed in an ExCo meeting was required to give notification and whether he should participate in the meeting would be determined by the Chief Executive.

  22. At no time did Rafael Hui disclose to the MPFS Authority his relationship with SHKP, including in particular the first and second loans from Honor Finance to him or the fact that he had been occupying the two Leighton Hill flats without payment of rent since February 2003.

  23. When he was Chief Secretary and during his time as a member of ExCo, Rafael Hui made no express declaration or disclosure of interest arising from his relationship with SHKP. His only declarations of interests were limited to the ownership of a flat in Wanchai, his connection with the Hong Kong Jockey Club and his status as a prospective or existing civil service pensioner.

  24. B. The proceedings below

  25. The appellants, together with Raymond Kwok, were tried together on an indictment containing eight counts before Macrae JA and a jury.[6]

  26. Rafael Hui was charged with:

  27. Thomas Kwok was charged with:

  28. Thomas Chan and Francis Kwan were each charged with:

  29. B.1 The indictment

  30. Count 1 alleged that, between 7 June 2000 and 13 August 2003, Rafael Hui, as the Managing Director of the MPFS Authority, without reasonable excuse or justification, wilfully misconducted himself in relation to his public office, by failing to declare or disclose to the MPFS Authority, that he had accepted the rent-free use of the Leighton Hill flats, the unsecured first and second loans from Honor Finance, and his negotiations for a consultancy agreement with SHKP.[7]

  31. Count 2 alleged that Rafael Hui and Thomas Kwok conspired together, between 1 March 2005 and 30 June 2007, that Rafael Hui, whilst Chief Secretary of the HKSAR Government, without reasonable excuse or justification, would wilfully misconduct himself in the course of or in relation to his public office, by being or remaining favourably disposed to SHKP[8] in return for the payment of HK$5 million from Thomas Kwok.[9]

  32. Count 3 alleged that Rafael Hui and Raymond Kwok conspired together, between 1 March 2005 and 30 June 2007, that Rafael Hui, whilst Chief Secretary of the HKSAR Government, without reasonable excuse or justification, would wilfully misconduct himself in the course of or in relation to his public office, by being or remaining favourably disposed to SHKP in return for the payment of HK$4.125 million from SHKP.[10]

  33. Count 4 alleged that Rafael Hui and Raymond Kwok furnished a false invoice, with a view to gain for themselves or another or with intent to cause loss to another, which purported to show that the payment of HK$4.125 million was in respect of Rafael Hui’s services for the period from April 2005 to February 2006.[11]

  34. Count 5 alleged that Rafael Hui, Thomas Kwok, Raymond Kwok, Thomas Chan and Francis Kwan conspired together, between 1 March 2005 and 30 June 2007, that Rafael Hui, whilst Chief Secretary of the HKSAR Government, without reasonable excuse or justification, would wilfully misconduct himself in the course of or in relation to his public office, by being or remaining favourably disposed to SHKP in return for the sum of HK$8.5 million through a series of payments from Thomas Kwok, Raymond Kwok, Thomas Chan and Francis Kwan.[12]

  35. Count 6 alleged that Rafael Hui, whilst Chief Secretary of the HKSAR Government, between 30 June 2005 and 30 June 2007, without reasonable excuse or justification, wilfully misconducted himself in public office, by failing to declare or disclose to the Government of the HKSAR the provision to him of the annual extensions of the unsecured third loan from Honor Finance.[13]

  36. Count 7 alleged that Rafael Hui, Thomas Kwok, Raymond Kwok, Thomas Chan and Francis Kwan conspired together, between 30 June 2005 and 20 January 2009, without lawful authority or reasonable excuse, to offer an advantage, namely HK$11.182 million, to Rafael Hui as Chief Secretary of the HKSAR Government and then a Non-Official Member of ExCo, as an inducement or reward for or otherwise on account of Rafael Hui 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.[14]

  37. Count 8 alleged that, between 1 July 2007 and 20 January 2009, Rafael Hui, without reasonable excuse or justification, wilfully misconducted himself in public office as a Non-Official Member of ExCo, by failing to declare or disclose to the Government of the HKSAR his receipt of HK$11.182 million through a series of payments from Thomas Kwok, Raymond Kwok, Thomas Chan and Francis Kwan.[15]

  38. Although the other charges on the indictment are relevant by way of background to this judgment, the issue of law raised in these appeals arises only in relation to Count 5 on the indictment.

  39. B.2 The prosecution case on Count 5

  40. The prosecution case on Count 5 alleged that the payments totalling HK$8.5 million to Rafael Hui in June 2005, shortly before he became Chief Secretary of the HKSAR Government, were made pursuant to a conspiratorial agreement for Rafael Hui to misconduct himself in public office. It was known by the time the payments were made that Rafael Hui would be appointed Chief Secretary. The payments were secret and unexplained and elaborate lengths were taken to ensure that they were concealed and not recorded in any documents. The prosecution alleged that the payments to Rafael Hui were made as a “general sweetener” made to secure his “favourable disposition”, as Chief Secretary, to SHKP and that they were, in effect, “bribes”. It was further contended that Thomas Chan contributed his own monies to the payments and that Francis Kwan was rewarded for his part in the transactions.

  41. B.3 The no case submission and ruling

  42. At the close of the prosecution case at trial, the appellants’ counsel made submissions that there was no case for the appellants to face on Count 5. These submissions were made on the basis that the prosecution case had shifted in the course of its presentation from one alleging that Rafael Hui was paid the sum of HK$8.5 million to be the “eyes and ears” of SHKP and that he had showed favour in some way to the company to one alleging that he was paid “general sweetners” for doing nothing more than his normal duty. It was submitted that, as a matter of law, this could not constitute misconduct in public office.[16]

  43. The trial judge rejected the submissions that there had been any shift in the prosecution’s position and, on its validity as a matter of law, concluded:

  44. Their position, as it was explained to the jury, and as I have just referred, is that it is not necessary for the prosecution to prove that D1 was in fact favourable to SHKP Ltd. Their case is that D1 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 and ears, or do anything favourable to SHKP Ltd. That, as I understand it, has always been their position, and I see no shift in position that would warrant my intervention at this stage upon a submission of ‘no case to answer’.

    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 those counts.

    That is my ruling.[17]

    B.4 The defence case

  45. Although each of the appellants advanced his own case to the various charges, there were common elements of their defences. In summary, when Rafael Hui was intending to leave the MPFS Authority and moving to the private sector, he was concerned with remuneration and accommodation. He eventually agreed to work as a consultant for SHKP because Thomas Kwok offered to pay him HK$15 million per year and to provide living quarters as well as reimbursing his office expenses. Although the remuneration stated in the written service agreement was understated at HK$4.5 million per year, Rafael Hui signed the agreement on the understanding that Thomas Kwok would make up the difference and pay for his accommodation.

  46. Upon accepting the invitation of the Chief Executive-elect[18] to become Chief Secretary, Rafael Hui terminated the service agreement and sought payment of the outstanding sums due to him from SHKP. Taking into account the payments made up to April 2005, there was a sum of HK$10.8 million due. The HK$8.5 million which featured in Count 5 was the payment to Rafael Hui of that outstanding amount, with the balance of HK$2.3 million being retained by Francis Kwan in order for the latter to carry out foreign exchange transactions for Rafael Hui. The payment of the HK$8.5 million was made in a convoluted manner due to a family dispute within the Kwok family concerning Walter Kwok. In short, the defence in relation to the payment which formed the subject of Count 5 was that this was the balance of monies legitimately owing to Rafael Hui from SHKP and the Kwoks. It was therefore denied that the payment was a bribe.

  47. So far as the payment of HK$11.182 million in 2007 was concerned, different cases were advanced but with the common thread that this was not a payment from SHKP or the Kwoks to Rafael Hui at all. It was the case of Francis Kwan and Rafael Hui that this sum was paid by Francis Kwan to Rafael Hui on behalf of a Mainland third party and its purpose was to alleviate Rafael Hui’s financial difficulties caused by his expensive lifestyle and with a view to his remaining Chief Secretary. Thomas Kwok’s case was that the monies paid by him to Thomas Chan were bonuses to the latter. Thomas Chan’s case was that Villalta paid the sum of HK$12 million to Wedingley as part of an arrangement for Francis Kwan to manage this money on behalf of Thomas Chan.

  48. It was also the defence case that Rafael Hui did not show any favour to SHKP whilst he was in office as Chief Secretary or as a Non-Official Member of ExCo, in particular in relation to either the Ma Wan or WKCD Projects.

  49. B.5 The trial judge’s summing up on Count 5

  50. The trial judge instructed the jury that in order to find a conspiracy it was necessary for them to find that there had been an agreement as alleged by the prosecution. His summing up on the charge of conspiracy to commit misconduct in public office in Count 5 reflected the prosecution case as to the law of misconduct in public office. The material part of that summing up where the judge dealt with the third element of the offence as identified by Sir Anthony Mason NPJ in Sin Kam Wah v HKSAR,[19] namely “wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty” was in the following terms:

  51. The act of wilful misconduct alleged by the prosecution in these three counts, Counts 2, 3 and 5, and this is the third requirement the prosecution must prove, is that D1, as Chief Secretary, would be or remain favourably disposed to SHKP’s interests in return for certain specified payments. Although the particulars of each count do not mention the word, the prosecution say that these payments were, in effect, bribes.

    The payments are, of course, different in each count. In Count 2, it is $5 million; in Count 3, $4.125 million; and in Count 5, $8.5 million. But the objective of the conspiracy alleged, namely, that D1 should misconduct himself as Chief Secretary by being favourably disposed to SHKP’s interests in return for money is the same.

    So, members of the jury, what does ‘being or remaining favourably disposed to SHKP Limited and/or its subsidiaries or associated companies and/or named conspirators’ mean? What does it mean?

    The words ‘being or remaining favourably disposed to’ reflect the prosecution allegation that the payments made to D1 were general goodwill payments. In other words, they were sweeteners, payments made to sweeten a public official. The counts do not allege that the payments were made in return for any specific identifiable favour which D1 was to perform or had performed. And the law does not require that any particular favour be specifically identified.

    Indeed, 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 the 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.[20]

    B.6 Verdicts and sentences

  52. In respect of the appellants, the jury returned verdicts of guilty on some of the charges against them and not guilty on the others: thus, Rafael Hui was found guilty of Counts 1, 5, 6, 7 and 8 and acquitted of Counts 2, 3 and 4; Thomas Kwok was found guilty of Count 5 and acquitted of Counts 2 and 7; and Thomas Chan and Francis Kwan were both found guilty of Counts 5 and 7. The jury acquitted Raymond Kwok of the four charges on which he stood trial, namely Counts 3, 4, 5 and 7.

  53. The judge imposed sentences on the appellants as follows: Rafael Hui was sentenced to a total term of imprisonment of 7 years and 6 months and ordered to pay the HKSAR Government the sum of HK$11.182 million;[21] Thomas Kwok was sentenced to 5 years’ imprisonment and fined HK$500,000 and disqualified from acting as a director of any company for a period of 5 years; Thomas Chan was sentenced to a total term of imprisonment of 6 years and fined HK$500,000 and disqualified from acting as a director of any company for a period of 6 years; and Francis Kwan was sentenced to a total term of imprisonment of 5 years.[22]

  54. B.7 The Court of Appeal decision

  55. The appellants each appealed their convictions to the Court of Appeal and, in addition, Thomas Chan appealed against his sentence. The appeals against conviction were each dismissed for the reasons set out in a lengthy judgment.[23] Although the Court of Appeal allowed Thomas Chan’s appeal against sentence, the totality of sentence imposed in respect of his convictions remained the same, namely 6 years’ imprisonment.

  56. In respect of the appeal against conviction on Count 5, Yeung VP noted that the jury had clearly rejected the defence case and must have concluded that the HK$8.5 million was paid to Rafael Hui because of his appointment as Chief Secretary and that in return for the payment Rafael Hui had agreed to be or to remain favourably disposed towards SHKP.[24] Lunn VP observed that, in convicting, the jury rejected the evidence of Rafael Hui and Thomas Kwok that the payments of HK$8.5 million to Rafael Hui were legitimate payments arising out of their undocumented oral agreement, by which he was to be compensated in addition to the payments made pursuant to the written service agreement by which, through Top Faith, he provided consultancy services and advice to SHKP.[25]

  57. Both Yeung VP and Lunn VP, for the reasons set out in their respective judgments (with both of which Pang JA agreed), considered the validity of the prosecution case on Count 5 and concluded that, on the facts alleged and accepted by the jury to be proved, the offence of conspiracy to engage in misconduct in public office was established.[26]

  58. C. Misconduct in public office and bribery in Hong Kong

    C.1 Misconduct in public office

  59. For the purposes of the law of Hong Kong, the elements of the common law offence of misconduct in public office were stated by Sir Anthony Mason NPJ in Sin Kam Wah v HKSAR[27] as follows:

  60. The offence is committed where:

    (1)

    a public official;

    (2)

    in the course of or in relation to his public office;

    (3)

    wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

    (4)

    without reasonable excuse or justification; and

    (5)

    where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.[28]

    That was a re-formulation, in a presently immaterial respect, of what Sir Anthony Mason NPJ had earlier said in Shum Kwok Sher v HKSAR.[29] The re-formulation was to take account of developments in the law in respect of the concepts of wilfulness and recklessness.[30] The statement has since been applied in a number of cases, including HKSAR v Wong Lin Kay,[31] and was accepted in argument in the present appeals.[32]

  61. In R v Boulanger[33] the Supreme Court of Canada, having pointed out[34] that the Canadian statutory offence of breach of trust by a public officer can be traced to the common law offence of misconduct in public office, said[35] that the actus reus of the offence “defies precise definition because of the range of conduct that it is designed to cover”. That it may include solicitation or acceptance of a bribe is clear. Professor Finn, in his article on Official Misconduct[36] gives “entering into secret commission agreements while acting in an official agency capacity” as an example of the “fraud in office” type of misconduct, and notes that it may also constitute an offence under secret commissions legislation. It can be said that the receipt of bribes is a quintessential example of misconduct in public office.

  62. For behaviour to qualify as relevant misconduct it may, but need not, involve a contravention of a statute. It must, however, have the necessary link to official powers, duties or responsibilities. Yet, not every breach of the law by a person when he or she is a public official is in the course of or in relation to the office held. In Sin Kam Wah v HKSAR[37] the relevant conduct was not in the performance of the police officer’s duties, but was found to have such a relation with his public office as to bring that office into disrepute. In R v Quach[38] Redlich JA, with whom the other members of the Victorian Court of Appeal concurred, approved[39] Professor Finn’s statement that “the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position”, and said:[40]

  63. In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where the misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character.

  64. The characterisation of the misconduct alleged may involve both a descriptive element (of the facts of the transaction) and a value judgment (of its effect). For example, the Australian case of R v Boston[41] concerned a conspiracy to make a corrupt payment to a member of the New South Wales Parliament to induce him to use his official power in an improper way. The criminality of the alleged agreement lay in its tendency to produce a public mischief.[42] Members of the High Court characterised the public mischief. Knox CJ said:[43]

  65. Payment of money to a member of Parliament to induce him to persuade or influence or put pressure on a Minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside Parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in Parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest, and makes him a servant of the person who pays him, instead of a representative of the people.

    This, of course, is a reference to a specific transaction. But Isaacs and Rich JJ put the public mischief in wider terms in the following passage:[44]

    [The member] has .... placed himself in a situation embarrassing and inconsistent with that independence to criticize or censure which he is bound to preserve; he has fastened upon himself golden fetters which preclude his freedom of action. The natural fear of exposure or reproach, or the sense of personal obligation, must inevitably operate to dissuade him from fearlessly pursuing the path of true service ....

  66. The public mischief that was the object of the conspiracy in Boston did not lie either in the bare financial transaction involved in the payment or in the making by a parliamentarian of representations about government action. It lay in the connection between the two: the representations were to be made in return for the payment. The payment took its character from the purpose for which it was made, and by accepting it the recipient placed himself in a situation incompatible with the responsibilities of his office.

  67. The present appeals, like Boston, involve a charge of conspiracy. Section 159A of the Crimes Ordinance (Cap.200) provides:

  68. 159A.

    The offence of conspiracy

    (1)

    Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

    (a)

    will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

    (b)

    would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

    he is guilty of conspiracy to commit the offence or offences in question.

    C.2 Bribery at common law

  69. The common law offence of bribery is described in Russell on Crime[45] as “receiving or offering any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.” The purposive element of that formula is stated from the point of view of the offeror rather than the recipient. The motive of the recipient may be simple greed, but it is the offeror’s purpose which characterises the payment.

  70. C.3 Statutory formulations of bribery

  71. As the statement in Russell on Crime indicates, the common law was concerned with bribery of persons in public office (originally, it appears, judicial officers[46]), but concern with the practice of payment of secret commissions to “agents” in the private sector resulted in legislation which extended the reach of anti-corruption law. The history of United Kingdom legislation on the topic, culminating in the Bribery Act 2010 (UK), was examined by the Court of Appeal in 2013 in R v J (P)[47] and in 2016 in R v AIL (a company).[48] Originally, three Acts were of particular significance: the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. The 1889 Act provided:

  72. (1)

    Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of a misdemeanor.

    (2)

    Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanor.

  73. The 1906 Act dealt with what are often referred to as secret commissions, and extended to private enterprise. The 1916 Act addressed payments to public employees responsible for awarding contracts.

  74. The first Hong Kong legislation on the subject was the Misdemeanors Punishment Ordinance 1898 (No.1 of 1898) which used language closer to that of Russell on Crime (although, it should be added, the word “corruptly” in the United Kingdom legislation served a similar purpose). The long title was “An Ordinance for the more effectual punishment of bribery and certain other misdemeanors”. Sections 3 and 4 were as follows:

  75. (3)

    Every public servant who accepts, or obtains, or agrees to accept, or attempts to obtain, or causes or procures to be obtained, from any person .... any bribe, with a view to influence his conduct as such public servant or to incline him, contrary to his duty as such public servant or contrary to the rules of honesty and integrity, to do or to omit to do any act, shall be guilty of a misdemeanor ....

    (4)

    Every person who gives or offers, or causes or procures to be given or offered, to any public servant any bribe, for himself or for any other person, with a view to influence his conduct as such public servant or to incline him, contrary to his duty as such public servant or contrary to the rules of honesty and integrity, to do or to omit to do any act, shall be guilty of a misdemeanor ....

  76. “Bribe” was defined in section 2 to include “any fee, perquisite, reward, or gratification, whether pecuniary or otherwise, not payable or receivable by law”. Again, the expression of the purposive element was somewhat more natural in (4) than in (3), but obtaining improper influence or securing a disloyal inclination was the essence of the purposive element of the offence. It is the tendency of a payment or other advantage which stamps it as corrupt and a bribe.

  77. Neither the United Kingdom legislation nor the Hong Kong Ordinance addressed an issue identified, but neither pursued nor resolved, in a 1901 Scottish case of HM Advocate v Dick,[49] that is, the case of a payment, otherwise having the characteristics of a bribe, to a person before and in anticipation of that person’s assuming public office. Anti-bribery legislation, whether directed towards the conduct of or in relation to people in public office or extended to cover people in other positions, typically relates to the current position of the office-holder, (see for example, the definition of “public servant” in the 1898 Ordinance), at the time of the payment or other advantage. If a legislature were to take up the matter of corrupt investment in potential future benefits by pre-office payments or other advantages, it would no doubt be confronted by some policy choices.

  78. The next Hong Kong legislation was the Prevention of Corruption Ordinance 1948.[50] The Acting Attorney General said the purpose of the law was both to cover corruption by “agents” and to make the offence of corruption in office more comprehensive. The legislation followed the language of the earlier United Kingdom legislation. Section 3 dealt with corruption by or in relation to public servants. Section 4 dealt with corruption by or in relation to agents. Sub-sections (1) and (2) of section 3 substantially followed sub-sections (1) and (2) of the 1889 United Kingdom Act, making the offences corruptly soliciting or receiving an advantage or corruptly giving, promising or offering an advantage. As in the United Kingdom legislation, the proscribed advantage was as an inducement to, or reward for, or otherwise on account of doing or forbearing to do something.

  79. The current Hong Kong legislation, the Prevention of Bribery Ordinance 1970 (Cap.201) widened the kinds of advantage that were proscribed,[51] and, so far as presently relevant, expressed the offence of bribery in relation to a public servant as follows:

  80. 4.

    (1)

    Any person who, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of that public servant’s —

    (a)

    performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant;

    (b)

    expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of an act, whether by that public servant or by any other public servant in his or that other public servant’s capacity as a public servant; or

    (c)

    assisting, favouring, hindering or delaying, or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public body,

    shall be guilty of an offence.

    (2)

    Any public servant who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his —

    (a)

    performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant;

    (b)

    expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of an act, whether by himself or by any other public servant in his or that other public servant’s capacity as a public servant; or

    (c)

    assisting, favouring, hindering or delaying, or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public body,

    shall be guilty of an offence.

  81. In its current form, section 4 has been given an extra-territorial reach, which is presently immaterial, but otherwise it is substantially the same. The Ordinance goes on to deal with more specific kinds of corruption, some of which involve public servants and others of which may not. It also establishes a special investigative regime. By comparison with the 1948 Ordinance it replaces “corruptly” with “without lawful authority or reasonable excuse”. This was unlikely to have been intended to have a narrowing effect.[52] The pattern of legislative development in Hong Kong, as in the United Kingdom and elsewhere, has been to widen the anti-corruption net, and to deal with specific forms of conduct thought to require particular attention, but there is no indication of an intention to abandon the original concept of purchasing improper influence or an inclination to act contrary to duty. It is to be noted that the concept of inclination had been in Hong Kong’s statute book since 1898 (see [54] above).

  82. C.4 Is a specific act or omission required?

  83. In 1978 there arose an issue as to the effect of the 1970 Ordinance in a case where the facts were relatively minor (an oblique solicitation of a small gift by a postman) but which was thought to involve an important principle. The question was whether, in order to establish a contravention of section 4(2)(a), it is sufficient to show that a public servant, in the course of or in relation to his duty, solicited an advantage or whether it was also necessary to prove that either the payer or the payee had in contemplation some specific act or omission on the part of the payee. The case was Attorney General v Chung Fat Ming.[53] McMullin J said:[54]

  84. [T]he distinction which has been argued before us is between the advantage which is seen to be solicited or accepted as a ‘quid pro quo’ for some particular act or abstention identifiable as to place and time on the one hand and, on the other, an advantage solicited or accepted as a general earnest of good relations-the ‘keeping sweet’ situation.

    The argument which the Court of Appeal accepted was “that section 4 does not require the Crown to prove any specific act in contemplation of either party as being related to the particular advantage sought [or offered]”.[55] That is the proposition for which the case is authority. It is a negative proposition and invites the further question: what, then, is it necessary or sufficient for the prosecution to prove? A person who pays a bribe may be taken to expect, or at least hope, for some kind of value for money, but there can be an almost limitless variety of circumstances bearing upon the extent to which such hope or expectation takes any concrete form. In a case of extortion, the payer may have nothing to hope for, but in the case of a bribe the benefit in prospect may (perhaps deliberately) be left completely undefined. McMullin J’s reference to “an advantage solicited or accepted as a general earnest of good relations” was to an advantage solicited or accepted by a public servant in the course of or in relation to his duty. That context gives colour to the concept of “good relations

  85. In Attorney General v Chung Fat Ming,[56] and in an earlier case of Chan Wing Yuen v The Queen,[57] McMullin J said that the phrase “otherwise on account of” (which was in the original United Kingdom legislation) goes beyond “inducement” and “reward”, which relate to specific acts, and covers “an act” which may denote the entire range of a public servant’s duties. In a passage from Chan Wing Yuen v The Queen which Leonard J quoted and adopted in Chung Fat Ming,[58] McMullin J said:

  86. The substance of the offence created by section 4(2) is in the soliciting or accepting of an advantage by one acting in the capacity of a government servant under circumstances which make it clear that the advantage is solicited or offered in reference to his having such capacity. It is a feature of the particular evil at which those provisions are aimed that the purpose may be generally apparent without being entirely explicit. In a given case it may be that the evidence available to the prosecution is not sufficiently specific to indicate whether the advantage has been solicited or offered as an ‘inducement’ to do a particular act or as a ‘reward’ for having done it. In such a case the charge should no doubt properly speaking be one of offering or accepting the advantage ‘on account of’ some prospect of favour not particularized but discernible among a variety of possible acts within the public capacity of the accused.

    Following an expression of his agreement with that passage, Leonard J went on to say[59] that, in a case of solicitation contrary to section 4(2)(a), the solicitation must be on account of performance of an “act” in the person’s capacity as a public servant, and that he would regard being or remaining favourably disposed to the person solicited as sufficient to amount to an “act”. In the context, he was evidently referring to “some prospect of favour not particularized but discernible among a variety of possible acts within the public capacity of the accused” on account of which the advantage was solicited.

  87. The same question arose in the New South Wales Court of Criminal Appeal in 1992 in R v Allen,[60] a case concerning the common law misdemeanour of bribery. The appellant, an Assistant Commissioner of Police, had formed an association with an operator of licensed nightclubs in Sydney’s Kings Cross area. Evidently placed in funds by his associate, the appellant set out to corrupt a junior police officer, whose responsibilities covered that area, by making a number of unsolicited cash gifts. Ultimately, the officer reported the matter. The case was tried before a judge sitting without a jury and the appellant was convicted of bribery. On appeal it was argued that there was an absence of a necessary quid pro quo because the recipient of the payments was never asked to do anything, and never agreed or intended to do anything, in consideration for them. The Court of Criminal Appeal said that a corrupt intent on the part of the appellant had been shown and that was sufficient. The size and regularity of the payments suggested an intention to place the junior officer under a sense of obligation to the appellant, and the systematic nature of the dealings suggested that the junior officer was being placed on some kind of payroll. The Court said:[61]

  88. In its application to circumstances such as the present, the gravamen of the offence of bribery is the making or offering of a payment with an intent to incline a person in public office to disregard his duty. The occasion for the disregard of duty need not have arisen at the time of the offence, and it need never arise. Nor is it necessary that the particular kind of contemplated breach of duty be specified at the time of the payment or inducement.

  89. The risk associated with euphemisms such as “sweetener”, and “being .... favourably disposed”, while they are understandable because the argot of corruption commonly employs understatement and evasion, is that they may be taken as signifying a purely emotional state, of a kind that could be benign or even involuntary. Protection ordinarily denotes care and concern, but in the context of extortion it means something different. Similarly, goodwill is a sentiment that a public servant may feel towards honest citizens generally, but in the context of what may be purchased by a bribe it means something different. It was pointed out in argument that, in one sense, a person may be favourably disposed to another for all manner of reasons that are innocent, or at least legally neutral. Furthermore, the trial was conducted on the basis that if the defence explanation of the reason for the payment of HK$8.5m were accepted (at least to the level of raising a reasonable doubt), then the prosecution must fail; yet, even on that explanation, the new Chief Secretary might be expected to have felt general goodwill towards a former employer or client by whom he had been well remunerated, and with whom he was and would be likely to remain on cordial terms. In relation to the payment of HK$8.5 million there was no charge of a contravention of section 4 of the Prevention of Bribery Ordinance because of a matter of timing. On the facts alleged by the prosecution, however, if the payment had been made a week later there would have been an offence against the Ordinance. In that event, what would have given the payment the character of a bribe would have been its tendency to incline the recipient to disregard his public duty; not his emotional state.

  90. To return to the offence of misconduct in public office, which may overlap with bribery, in Sin Kam Wah v HKSAR, Sir Anthony Mason NPJ, with whom the other members of the Court agreed, after explaining that the trial in that case had been conducted on the basis that the relevant misconduct lay in the first appellant’s part in accepting sexual services from women over whom he knew the second appellant was exercising control, direction or influence, added:[62]

  91. 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.

    D. The arguments on appeal

    D.1 Background

  92. To understand the competing arguments presented to this Court, and therefore the issue at hand, it is convenient to record first what was not asserted by the respondent to be the allegation advanced by the particulars of offence in Count 5.

  93. It was not alleged by the prosecution at trial and it is not contended before this Court:

    1. that Rafael Hui’s act of misconduct in public office was his receipt and acceptance in June 2005 of the sums amounting to HK$8.5 million. That is because, in June 2005, he did not occupy public office;

    2. that of itself, the fact of favourable disposition on Rafael Hui’s part towards SHKP, after he assumed office as Chief Secretary, was an act of misconduct. That is because disposition, whether favourable or unfavourable, is a common and largely unavoidable incident of every day experience which may or may not bear an impermissible consequence. Whereas the failure by a public officer to disclose a bias might, in certain circumstances, constitute misconduct, it seems obvious that the mere existence of a disposition, in a vacuum as it were, does not; or

    3. that the agreement was that upon and after the assumption of office, Rafael Hui would, in return for the sum of HK$8.5 million, show favour to SHKP if and when that should become necessary or desirable.

  94. The last of these three points, in particular the phrase “if and when that should become necessary or desirable” requires some explanation. The case for the appellants at trial was that if, contrary to the defence case, the payments to Rafael Hui in June 2005 were not monies due for his work as a consultant, it was incumbent upon the prosecution to prove that there was agreed an act or acts to be performed by Rafael Hui, once in office, as the quid pro quo for these payments and that mere favourable disposition was not an act. It was however conceded by the appellants that if an agreement were proved that in return for the payments, Rafael Hui would show favour should that become necessary or, put another way, as and when opportunity presented itself, the agreement necessarily envisaged an act or acts, and that it could not then validly be argued that that anticipated conduct did not amount to misconduct.

  95. The point was raised specifically by Mr Ian Winter QC, for Thomas Chan, in submissions made to the trial judge about proposed directions to the jury. What was at issue, said Mr Winter, was whether it was alleged that the agreement was one which contemplated Rafael Hui acting “should it become necessary to do so” or was it “just an agreement that [Rafael Hui] would remain favourably disposed”?[63] The prosecution’s response at trial was that the agreement alleged was no more than an agreement to be or to remain favourably disposed. Whilst it was open to the jury to conclude that acts of specific favour had been carried out by Rafael Hui, and that such acts, if proved, would support the allegation of favourable disposition, the long and the short of the prosecution case was favourable disposition in return for money and that that sufficed.

  96. Mr David Perry QC explained to this Court why the prosecution chose not to tie its colours to the mast of a conditional conspiracy, meaning a conspiracy to show favour if and when the occasion presented itself. Amongst the several considerations advanced was that such a charge would raise the question whether the course of conduct contemplated would necessarily result in the commission of a criminal offence; would generate arguments about what was meant by “necessary” or “appropriate”; and would give rise to a danger that focus would shift from the character of the payments to the merits of decisions taken, thereby creating unnecessary complexity.

  97. The point was urged upon us that, by framing its case as it did, the prosecution was seeking to widen the reach of the offence of misconduct in public office because it perceived a gap in the law’s armoury against corruption in the realm of payments made in anticipation of office.[64] This as a matter of principle was impermissible but there was, in any event, no such gap, so the argument ran, because it would have been open to the prosecution to allege as the act of misconduct the non-disclosure by Rafael Hui, to whomsoever potential conflicts of interest fell to be disclosed, the fact of the June payments. Mr Perry explained that whilst such a charge could properly have been laid, it would have failed adequately to reflect the criminality of the case, for the criminality did not merely lie in the failure to disclose but in the corrupt payments and receipt of monies and in the impermissible use of office for private gain.

  98. D.2 The appellants’ argument

  99. The essence of the appellants’ argument is at a fundamental level. It is to say that no criminal offence is committed without an actus reus, an external conduct element, and that the actus reus of the offence of misconduct in public office is either misfeasance, in other words, an act of misconduct, or non-feasance, an act of omission amounting to misconduct. For the purpose of the present case, we are concerned only with misfeasance, yet one looks in vain, according to this argument, for the actus reus, the act of misconduct, since being or remaining favourably disposed is not an act. It is said that the case was not left to the jury on the footing that the favourable disposition was intended to lead to action or that the payments in June were to secure a disposition which would necessarily and materially impair Rafael Hui in the performance of his public duties but was instead left on the basis that what was intended was no more than the creation in Rafael Hui of goodwill towards SHKP.

  100. Viewed in that way, what was alleged to constitute the intended misconduct was nothing other than a state of mind, a mental disposition, whereas the criminal law does not recognise mere motive, intention, disposition or inclination as sufficient for the commission of a criminal offence. It is the principle which was articulated by Lord Mansfield that “so long as an act rests in bare intention, it is not punishable by our laws”,[65] and Professor Glanville Williams has suggested that the reasons for the rule are, first, “the difficulty of distinguishing between day-dream and fixed intention in the absence of behaviour tending towards the crime intended” and, second, “the undesirability of spreading the criminal law so wide as to cover a mental state that the accused might be too irresolute even to begin to translate into action. There can hardly be anyone,” he added, “who has never thought evil. When a desire is inhibited it may find expression in fantasy; but it would be absurd to condemn this natural psychological mechanism as illegal.[66] So at the root of the appellants’ argument is that favourable disposition is itself a natural psychological mechanism which only results in criminality if the disposition is translated into action proscribed by criminal law, whereas the result of the judge’s ruling and that of the Court of Appeal, if left undisturbed, is the creation of an Orwellian thought crime.

  101. The strength of the appellants’ argument is said to be rendered all the more apparent in the light of section 159A of the Crimes Ordinance which provides that conspiracy to commit an offence is established only if there was an agreement to pursue a course of conduct which, if the agreement be carried out in accordance with the intentions of the parties to the agreement, will necessarily amount to the commission of an offence by one or more parties to the agreement.[67] The argument is that, as framed, the prosecution case was unable to identify any course of conduct that would necessarily amount to the offence of misconduct in public office. The adoption of a state of mind is not sensibly categorised as the carrying out of a course of conduct; and the alternative assertion in the particulars of offence that it was agreed that Rafael Hui would “remain” favourably disposed sits ill with the tenor of section 159A which envisages an agreement that a future crime be committed.

  102. The appellants contend that what is proposed is an unprecedented and unprincipled expansion of the boundaries of the offence of misconduct in public office. This common law offence has a long history[68] and the appellants say that it is no accident that no example has been discovered of any prosecution mounted on the basis now advanced.

  103. The ramifications are said to be chilling, for an expansion of the offence’s parameters to embrace favourable disposition would render susceptible to prosecution those in the private sector who enter public life and carry with them natural feelings of goodwill. Rules for disclosure of potential conflicts of interest and the present law which proscribes external acts of misconduct suffice and just as “it [is] not for this Court to create a new offence as an answer to a perceived problem of imprecise definition or accessibility,[69] it is not for this Court to relax the limits of the offence so as to cater for a perceived lacuna in the law relating to pre-office payments.

  104. The appellants next contend that the suggestion by Leonard J in Chung Fat Ming that he “would regard being or remaining favourably disposed to the person solicited as sufficient to amount to an ‘act’” within the meaning of section 4(2)(a) of the Prevention of Bribery Ordinance, which is the genesis of the phrase used in Count 5 (as well as in Count 7), is of no avail to the prosecution. The point is made that the base criminality or actus reus of the section 4(2)(a) offence is not the suggested favourable disposition to which Leonard J referred but the solicitation or acceptance of an advantage. Under section 4(2)(a), an offence may be committed absent any breach of duty by the public servant: it is enough that he accepts or solicits the advantage merely on account of his doing his job and what Leonard J was saying, so the argument goes, was that if he solicited or accepted an advantage – the actus reus – for being favourably disposed, he could properly be said to have committed the proscribed conduct on account of performing an act in his capacity as a public servant. What has happened, therefore, is that the prosecution in the present case has lifted an analysis not directed at the actus reus of section 4(2)(a) of the Ordinance and turned it into the actus reus of the common law offence with which these appellants were charged.

  105. Finally, the appellants say that the remark by Sir Anthony Mason NPJ in Sin Kam Wah v HKSAR (at [64] above) that the “acceptance of a ‘general sweetener’ by a public officer can, in appropriate circumstances, amount to misconduct in public office[70] is also not to the point since the comment relates to the act of acceptance, which is not the act of misconduct in the present case.

  106. D.3 The respondent’s argument

  107. The respondent’s position was explained by Mr Perry as follows. As is obvious from the verdicts returned by the jury, the defence offered by the appellants at trial was rejected and the jury concluded that the June 2005 payments were bribes paid to Rafael Hui in relation to the performance by him of his public office and were paid in return for him being or remaining favourably disposed to the interests of SHKP. That was a finding that he was paid to be favourably disposed to a private interest group. It was a finding that he was to be, and was in fact, on the payroll of that private interest group. What therefore was envisaged by the conspirators was a continuing act of partiality in breach of Rafael Hui’s duty to serve the public interest and not to serve his private interests and those of a secret paymaster. The misconduct in this case was a continuing act of disloyalty, since the performance of a public office in golden fetters is to act disloyally and without integrity. It is a continuing breach of the public officer’s obligation to act with integrity in the public interest and is at the heart of what the offence of misconduct in public office is designed to deter.

  108. There is no need, he suggested, to identify a particular act or acts contemplated by the conspirators. That is not only because favourable disposition to private interests in return for a bribe is itself misconduct but because the law recognises the practical realities of proof, in that conspirators are unlikely in such cases to spell out a specific act; indeed no specific act may be in contemplation and showing favour may be understood to mean no more than avoiding fault picking or obstruction.[71]

  109. Nor are the merits of decisions taken by the public officer thus corrupted of any relevance for he has consciously and deliberately put himself into a position in which his duty to act in the public interest is compromised. That being so, the question whether a particular policy decision or transaction is beneficial to the public is immaterial.

  110. It is, says Mr Perry, fallacious in the context of this case to categorise favourable disposition as a mere thought. The error underlying that contention is to be found in placing favourable disposition in isolation, divorced from the payments made to secure it. The favourable disposition thus secured is the description of the misconduct itself, and the mens rea is the wilfulness of that conduct.

  111. E. Addressing the issue raised in the appeals

    E.1 The many forms of misconduct in public office

  112. The decided cases show that a broad range of different acts and omissions can constitute the relevant conduct element of the offence. In Shum Kwok Sher v HKSAR, Sir Anthony Mason NPJ observed (at [69]):

  113. The difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence. This is because, to quote the words of PD Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p.315:

    The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.

    It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.

  114. This dictum was adopted by the Supreme Court of Victoria in R v Quach[72] and is reflected in the passage in the judgment of the Supreme Court of Canada in R v Boulanger quoted in [46] above.

  115. Thus, the following acts and omissions have been held to constitute the offence: failing to disclose a relationship with a company and showing preferential treatment to that company by permitting it to tender for Government contracts despite lacking the requisite experience;[73] accepting free sexual favours provided by prostitutes controlled by the owner of a nightclub;[74] obtaining and using the personal particulars of patients of a public hospital to advertise the commencement of a private medical practice.[75] But these are merely specific instances of the offence and they are illustrative rather than definitive of the ways in which it can be committed. As Sir Anthony Mason NPJ said in Shum Kwok Sher v HKSAR, the offence “is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers.[76]

  116. That there must be a relevant relationship between the act or omission constituting the misconduct and the public office was confirmed by this Court’s decisions in Sin Kam Wah v HKSAR[77] and HKSAR v Wong Lin Kay.[78] Nevertheless, as Sir Anthony Mason NPJ noted in Shum Kwok Sher v HKSAR:

  117. .... the essence of the offence is that an officer who has been entrusted with powers and duties for the public benefit has abused them or his official position. Abuse of such powers and duties may take various forms, 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. In all these instances the conduct complained of by the public officer takes place in or in relation to, or under colour of exercising, the office.[79]

    E.2 The responsibility of the office and the office-holder

  118. That, as noted at [47] above, the essence of the offence is the abuse of public trust by the officer is also amply supported by the authorities cited by Ribeiro PJ in his judgment in HKSAR v Wong Lin Kay[80] at [26] to [33]. And as Chan ACJ put it, in HKSAR v Ho Hung Kwan Michael, “this offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position”.[81]

  119. In this area of the law, as elsewhere, context is all important. Because the essence of the offence is the abuse of office it is necessary that the misconduct be “serious, not trivial” and, therefore, when asking whether a public officer has misconducted himself in office, it is essential to put that inquiry into its proper context by identifying “the responsibilities of the office and the officeholder”.[82]

  120. In the present case, we are concerned with the office of the Chief Secretary for Administration of the HKSAR Government. The Chief Secretary is a Principal Official under the Basic Law of the Hong Kong Special Administrative Region (“the Basic Law”)[83] and the second most senior officer in the HKSAR Government. In the event the Chief Executive is not able to discharge his or her duties for a short period, such duties shall be temporarily assumed by the Chief Secretary, the Financial Secretary or the Secretary for Justice, in that order of precedence.[84]

  121. The Chief Secretary is also an Official Member of ExCo, which assists the Chief Executive in policy-making.[85] As the prosecution pointed out in its Case Summary at trial, ExCo is consulted by the Chief Executive before he or she makes important policy decisions, introduces bills to the Legislative Council, makes subordinate legislation or dissolves the Legislative Council. ExCo normally meets once a week and its proceedings are confidential. It is also the fact (and this can be assumed without evidence) that the Chief Secretary exercises statutory functions vested in him by law, such as those concerning the handling of appeals and certain public bodies.

  122. Specifically, in the present case, whilst he was Chief Secretary and later as a Non-Official Member of ExCo, Rafael Hui was involved in important matters of policy concerning the WKCD Project and the Ma Wan Project, two large property developments which concerned also the interests of SHKP. During his time as Chief Secretary, in particular, Rafael Hui was the Chairman of the Steering Committee of the WKCD Project.

  123. As a Principal Official, in addition to his oath of office, Rafael Hui was subject to Government Regulations relating to conduct and conflicts of interests. He was also subject, in particular, to the Code for Principal Officials. This Code contains the basic principles governing the performance by Principal Officials of their duties, which include the following: to be dedicated to their duties and be responsible to the Government of the HKSAR; to uphold the law, abide by the law, and protect the integrity of the public office; to observe the highest standards of personal conduct and integrity at all times; to ensure that no actual or potential conflict of interest arises between their public duties and their private interests; to promote and support these principles by leadership and example. In relation to the prevention of conflicts of interests, the Code specifically lays down the principles that Principal Officials should: avoid putting themselves in a position where they might arouse any suspicion of dishonesty, unfairness or conflict of interest; refrain from handling cases with actual or potential conflict of interest; and report to the Chief Executive any private interests that might influence, or appear to influence, their judgment in the performance of their duties.

  124. In short, as the prosecution asserted in its case at trial, as Chief Secretary, Rafael Hui would have had an important role in the development of Government policy, and be privy to highly confidential information, in relation to matters in which SHKP had substantial interests. And it is plain that, as Chief Secretary, Rafael Hui was “appointed to be a sentinel of the public welfare”.[86]

  125. E.3 The offence alleged in Count 5

  126. As already noted, Count 5 charged a conspiracy to commit misconduct in public office. As in any charge of conspiracy, it is necessary to focus on the character of the conspiratorial agreement alleged by the prosecution. It is also necessary, for the statutory offence of conspiracy to be established, that the conspirators’ agreement must be “that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either .... will necessarily amount to or involve the commission of any offence .... by one or more of the parties to the agreement”.[87]

  127. The agreement here was made shortly before Rafael Hui assumed his position as a public officer. It was an agreement under which Rafael Hui was to be paid HK$8.5 million in return for his favourable disposition while in office and was clearly therefore a corrupt bargain. Had that payment been made after he assumed the office of Chief Secretary, the prosecution case could have been put simply on the basis of an agreement to offer an advantage to a public officer since the acceptance of the payment would have constituted the substantive offence of misconduct in public office.[88] Similarly, had the conspiratorial agreement been made when Rafael Hui was already Chief Secretary, the prosecution might alternatively have been put simply on the basis that the making of the corrupt agreement itself was a relevant act of serious misconduct sufficient to constitute the offence. However, the timing in this case was such that this could not be alleged.

  128. Nevertheless, from Rafael Hui’s perspective, the agreement alleged in Count 5 was concerned with his position in public office and, from the other conspirators’ perspective, their payment of HK$8.5 million to Rafael Hui was referable to his position as Chief Secretary and was made in anticipation of his assuming that office. The purpose of the payment, from their perspective, was to put the incoming Chief Secretary on their payroll and thus inclined to show them favour or prefer their interests. One might ask, rhetorically, if Rafael Hui had not taken the oath of office and become Chief Secretary, would not the other conspirators have sought the repayment of the HK$8.5 million from Rafael Hui? As Mr Perry put it in his closing speech to the jury, those who were paying Rafael Hui that sum were not “running a charity”.[89]

  129. As such, the agreement alleged in the indictment, although entered into before Rafael Hui assumed public office, was made in anticipation of his entering into public office as Chief Secretary, and was wholly concerned with his anticipated holding of that public office. It was an agreement that, in the language of section 159A of the Crimes Ordinance, involved the commission by him of misconduct in public office because, by making the agreement, Rafael Hui would (to use the language of Knox CJ in R v Boston, see [48] above) “[impair] his capacity to exercise a disinterested judgment” or (to use the language of Isaacs and Rich JJ in the same case) “[place] himself in a situation embarrassing and inconsistent with that independence to criticize or censure which he [was] bound to preserve” (or, more colourfully, would “[fasten] upon himself golden fetters which preclude[d] his freedom of action”). Once he had accepted the sum of HK$8.5 million in relation to his holding of public office, Rafael Hui’s independence when he assumed office would be hopelessly compromised and he could not properly discharge the duties of Chief Secretary nor be trusted to do so. This involved a continuing offence that commenced from the time he entered into his public office as Chief Secretary and infected the entire period he held that office under the influence of the payment made to him.

  130. It is correct, of course, that Rafael Hui might have been charged with the substantive offence of misconduct in public office for failing to disclose his receipt of the payment when acting as Chief Secretary, but, as Mr Perry rightly observed, such a charge would not properly reflect the criminality involved in this conspiracy.

  131. E.4 Sufficient allegation of misconduct in public office in Count 5

  132. So analysed, it will be apparent that the conspiracy alleged was an agreement under which, in return for a substantial payment of money, Rafael Hui would incline himself in a manner inconsistent with his duty as a public officer. That inclination was improper since it was wholly inimical to his duties as Chief Secretary, described above, and involved a serious abuse of office and abuse of public trust. Having accepted the payment of HK$8.5 million in return for his improper inclination, Rafael Hui could not properly discharge the duties of Chief Secretary.

  133. The abuse of public trust contemplated by the conspirators in the present case is therefore clear and, by agreeing to place himself in such a compromised state, Rafael Hui made an agreement which contemplated a continuing act of misconduct whilst he was Chief Secretary. The fact that the payment made to induce that compromised state was made before he assumed his public office does not mean that the abuse of trust occurred at the time of the making of the payment. That payment was made to secure an ongoing inclination on the part of Rafael Hui towards SHKP once he assumed the office of Chief Secretary and it is by so agreeing to act as Chief Secretary whilst he was in the “golden fetters” constituted by that payment that he conspired to commit an act of misconduct sufficient to satisfy the conduct element of the offence of misconduct in public office.

  134. The above conclusion on the issue raised in these appeals is, as the prosecution contended, consistent with the core of the common law offence of misconduct in public office and the mischief it is designed to address. If the expression “being .... favourably disposed”, the risks of which are alluded to in paragraph [63] above, is used in the context of a case of bribery (see Section C above) it is an adequate description of an act of misconduct.

  135. F. Suggested misdirections and non-directions

  136. Given our conclusion upon the central issue of law, that the agreement alleged by the particulars of offence in Count 5 was an agreement to commit misconduct in public office, the argument advanced to this Court that the judge erred in not directing the jury that it was necessary to prove that specific acts of favour were contemplated by the appellants or that at least it was agreed that favour would be shown if and when that should become necessary, is an argument which necessarily fails.

  137. A number of other complaints were advanced. These included, first, the contention that the manner in which the respondent has sought before this Court to categorise the misconduct alleged by the particulars is neither the way it was put to the jury by the prosecution at trial nor the sense in which it was explained to the jury by the judge. Secondly, it was said that the directions created a danger of conviction on Count 5 from the mere fact of such favourable disposition towards the Kwoks and SHKP as naturally resulted from their long relationship. Thirdly, that the judge erroneously left the jury with the impression that it was the acceptance of the payments that was the relevant alleged misconduct. Fourthly, it was suggested that it was wrong at trial to refer to the June 2005 payments as alleged bribes since Count 5 did not charge either common law or statutory bribery; and, further, that the judge erred in failing to direct the jury that evidence of conduct by Rafael Hui which enured to the disadvantage of SHKP was relevant in deciding whether the appellants had entered into the impugned agreement.

  138. Some of the complaints strayed somewhat from the ground on which leave was given but, nonetheless, we are satisfied that none of the complaints is made out. We have already set out the material part of the judge’s directions at [39] above. As to the criticism of the description of the payments as bribes, that description was used by counsel on all sides as a convenient way by which to highlight the core issue, namely whether the payments were for a corrupt or for an innocent purpose.

  139. G. Conclusion and disposition of appeals

  140. For the above reasons, the appeals are dismissed. The appellants were each properly convicted of the offence of conspiracy to commit misconduct in public office charged in Count 5 of the indictment.


[1] Misconduct in public office is a common law offence.

[2] FAMC 8, 9, 10 & 11/2016, Determination dated 12 July 2016, at [2].

[3] CACC 444/2014, Judgment dated 16 February 2016, at [59] to [83].

[4] Flats 20A and 20B, Tower 6, Leighton Hill.

[5] Addressed in more detail at [91] below.

[6] In HCCC 98/2013; Macrae JA tried the case sitting as an additional judge of the Court of First Instance.

[7] Contrary to common law and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[8] The particulars of offence for Counts 2, 3, 5 and 7 alleged favourable disposition to SHKP and/or its subsidiaries or associated companies and various named defendants. In this judgment, we shall simply refer to the allegation of favourable disposition to SHKP in relation to those various counts.

[9] Contrary to common law and ss.159A and 159C of the Crimes Ordinance (Cap.200) and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[10] Contrary to common law and ss.159A and 159C of the Crimes Ordinance (Cap.200) and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[11] Contrary to s.19(1)(b) of the Theft Ordinance (Cap.210).

[12] Contrary to common law and ss.159A and 159C of the Crimes Ordinance (Cap.200) and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[13] Contrary to common law and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[14] Contrary to ss.4(1)(a) and 12 of the Prevention of Bribery Ordinance (Cap.201) and ss.159A and 159C of the Crimes Ordinance (Cap.200).

[15] Contrary to common law and s.101I(1) of the Criminal Procedure Ordinance (Cap.221).

[16] HCCC 98/2013, transcript of Ruling of Macrae JA on Friday, 12 September 2014, at pp.7-8.

[17] Ibid. at pp.10-11.

[18] Mr Donald Tsang Yam-kuen.

[19] (2005) 8 HKCFAR 192 at [45].

[20] HCCC 98/2013, Summing-up on 8 December 2014, at pp.46-47.

[21] Pursuant to s.12(1) of the Prevention of Bribery Ordinance (Cap.201).

[22] The disqualification orders against Thomas Kwok and Thomas Chan were made pursuant to s.168D of the Companies Ordinance (Cap.32).

[23] CACC 444/2014 (Yeung VP, Lunn VP and Pang JA), Judgment dated 16 February 2016.

[24] Ibid. at [10].

[25] Ibid. at [157].

[26] Ibid. at [12]-[44] per Yeung VP and [173]-[226] per Lunn VP.

[27] (2005) 8 HKCFAR 192.

[28] Ibid. at [45].

[29] (2002) 5 HKCFAR 381.

[30] Re A-G’s Reference (No 3 of 2003) [2004] 2 Cr App R 23, 366.

[31] (2012) 15 HKCFAR 185.

[32] For present purposes it is not materially different from the law as recently stated in cases in England and Wales (R v Chapman & Ors [2015] 2 Cr App R 10, 161) and in Australia (R v Quach [2010] VSCA 106; (2010) 201 A Crim R 522; Obeid v R [2015] NSWCCA 309).

[33] [2006] 2 SCR 49.

[34] [2006] 2 SCR 49 at 55.

[35] [2006] 2 SCR 49 at 69.

[36] (1978) 2 Crim LJ 307 at 314 fn 71.

[37] (2005) 8 HKCFAR 192.

[38] [2010] VSCA 106.

[39] [2010] VSCA 106 at [37].

[40] [2010] VSCA 106 at [40].

[41] (1923) 33 CLR 386.

[42] (1923) 33 CLR 386 at 392.

[43] (1923) 33 CLR 386 at 393.

[44] (1923) 33 CLR 386 at 404.

[45] 12th Ed. p.381.

[46] Russell on Crime, 12th Ed., p.381 fn 1.

[47] [2014] 1 WLR 1857.

[48] [2016] QB 763.

[49] (1901) 3 F (Ct of Session) 59.

[50] (Cap.215).

[51] Hong Kong Hansard, Prevention of Bribery Bill 1970 (First Reading, 21 October 1970).

[52] See, in a related context, Secretary for Justice v Chan Chi Wan Stephen & Another, FACC 11 & 18/2016, unrep., 14 March 2017 at [56] to [58] and [140] to [146].

[53] [1978] HKLR 480.

[54] Ibid. at 482.

[55] Ibid. at 482.

[56] Ibid. at 486.

[57] [1977] HKLR 186.

[58] [1978] HKLR 480 at 495.

[59] Ibid. at 497.

[60] (1992) 27 NSWLR 398.

[61] Ibid. at 402.

[62] (2005) 8 HKCFAR 192 at [54].

[63] Trial transcript, Day 105, p.9, lines 12-19.

[64] In India, the Prevention of Corruption Act 1988, section 7 renders it an offence for “whoever, being, or expecting to be a public servant” accepts pecuniary gratification, other than legal remuneration, for doing or forbearing to do any official act. In the United States of America, it is an offence corruptly to give anything of value to any public official or “person who has been selected to be a public official” and for such a person corruptly to demand or receive anything of value, where the intent is to influence the performance of an official act: 18 U.S. Code, section 201.

[65] Scofield (1784) Cald 397 at 402.

[66] Criminal Law – The General Part (2nd Ed.), p.2.

[67] The terms of s.159A are set out at [50] above.

[68] Sir Anthony Mason NPJ in Shum Kwok Sher stated at [66] that it went back at least to 1704; whereas in a recent article, “Revival of the common law offence of misconduct in public office”, David Lusty (2014) 38 Crim LJ 337, the suggestion is made that it can be traced back to the 13th century.

[69] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at [98].

[70] (2005) 8 HKCFAR 192 at [54].

[71] HKSAR v Cheung Koon Chee, CACC 356/2010, unrep. at [40], a decision of the Court of Appeal in relation to s.9 of the Prevention of Bribery Ordinance.

[72] [2010] VSCA 106; (2010) 201 A Crim R 522; per Redlich JA at [15].

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

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

[75] Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745.

[76] (2002) 5 HKCFAR 381 at [91].

[77] (2005) 8 HKCFAR 192 at [47].

[78] (2012) 15 HKCFAR 185 at [17].

[79] (2002) 5 HKCFAR 381 at [81].

[80] (2012) 15 HKCFAR 185: viz. R v Bremridge (1783) 3 Doug KB 327, 99 ER 679; R v Dytham [1979] QB 722; R v Whitaker [1914] 3 KB 1283; Re A-G’s Reference (No 3 of 2003) [2005] QB 73; Russell on Crime (12th ed., 1964) p.361 para.32; Three Rivers District Council v Governor and Company of the Bank of England (No 3)[2003] 2 AC 1, 235; Henly v Mayor and Burgesses of Lyme (1828) 5 Bing NC 91 at 107, 130 ER 995 at 1001; Northern Territory of Australia v Mengel (1995) 185 CLR 307.

[81] (2013) 16 HKCFAR 525 at [26].

[82] Element (5) of Sir Anthony Mason NPJ’s re-formulation of the offence set out at [45] above.

[83] As such he would be required to take the Oath of the Principal Officials under the Oaths and Declarations Ordinance (Cap.11), s.16B and Sched.2, Part II.

[84] Basic Law, Article 53(1).

[85] Basic Law, Article 54. As a member of ExCo, he would be required to take the Oath of Fidelity and the Executive Council Oath: Oaths and Declarations Ordinance (Cap.11), s.18 and Sched.2, Parts III and VI.

[86] R v Boston (1923) 33 CLR 386 per Isaacs and Rich JJ at p.403.

[87] Crimes Ordinance (Cap.200) s.159A.

[88] The prosecution could also have charged the offence under s.4 of the Prevention of Bribery Ordinance: see [63] above.

[89] Trial transcript, Day 113, p.107, lines 11-12.


Representations

Edwin Choy and Joe Chan, instructed by Tang, Lai & Leung, for the 1st Defendant/Appellant in FACC 12/2016 (1st Appellant).

Clare Montgomery QC, Gary Plowman SC and Benson Tsoi, instructed by Davis Polk & Wardwell, for the 2nd Defendant/Appellant in FACC 14/2016 (2ndAppellant).

Ian Winter QC, Selwyn Yu SC and Isaac Chan, instructed by Morley Chow Seto, for the 4th Defendant/Appellant in FACC 15/2016 (3rd Appellant).

Hugo Keith QC, Charles J. Chan and Billy Kwan, instructed by Simon Ho & Co., for the 5th Defendant/Appellant in FACC 13/2016 (4th Appellant).

David Perry QC, Joseph Tse SC and Maggie Wong, on fiat, for the Department of Justice, for the Respondent.


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