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CACC 444/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2014

(ON APPEAL FROM HCCC NO. 98 OF 2013)

BETWEEN

HKSAR Respondent

and

KWOK Ping-kwong Thomas (郭炳江) 2nd Applicant (D2)

Before: Hon Lunn VP in Court

Date of Judgment: 11 September 2015

J U D G M E N T

1. Kwok Ping-Kwong, Thomas, described as the 2nd defendant on the

indictment at trial, seeks leave to appeal against his conviction on 19

December 2014 after trial by Macrae JA and a jury of Count 5, namely

conspiring together and with Rafael Hui, Raymond Kwok, Thomas Chan

and Francis Kwan respectively the 1st, 3rd, 4th and 5th defendants, to

commit misconduct in public office.

Count 5

2. Count 5 alleged that the five stipulated conspirators conspired together

between 1 March 2005 and 30 June 2007 that Rafael Hui, whilst the

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holder of a public office, namely Chief Secretary for the Administration

of the Government of the HKSAR, would wilfully misconduct himself in

the course of or in relation to his public office by being or remaining

favourably disposed to Sun Hung Kai Properties (SHKP) and/or its

subsidiaries or associated companies in return for the payment of

$8.5 million, contrary to Common Law, sections 159A and 159C of the

Crimes Ordinance, Cap 200 and section 101 I(1) of the Criminal

Procedure Ordinance, Cap 221.

3. By the Amended Perfected Grounds of Appeal against Conviction

filed with the leave of the court on 14 August 2015 two grounds of appeal

only are advanced, on behalf of Thomas Kwok, which it is submitted

involved “wrong decisions on questions of law” thereby rendering his

conviction unsafe and unsatisfactory. Those grounds are:

“Ground 1: Errors in relation to the offence of conspiracy to commit misconduct in public office.

Count 5 of the Indictment alleged an offence unknown to the law of Hong Kong. Misconduct in public office requires there to be an act of misconduct by a public officer; it cannot be committed by a public officer merely being or remaining of a certain state of mind. Conspiracy to commit misconduct accordingly requires an agreement that the public officer will misconduct himself in a manner that is identifiably of a sufficiently serious nature to give rise to the offence. Count 5 contained no such allegation. The conviction of D2 on this count should be quashed.

1.1 The learned Trial Judge failed to recognize that, in charging an offence of conspiracy to commit misconduct in public office under section 159A of the Crimes Ordinance (Cap. 200), the prosecution was required to prove that: (by reason inter alia of the words “a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions … will … involve the commission of any offence” in subsection 159A(1) and the words the defendant “and at least one other party to the agreement intend or know the facts and circumstances necessary for the commission of

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the offence shall exist at the time when the conduct constituting the offence is to take place” in subsection 159A(2):

(1) it was intended and agreed that D1 would carry out a specific act in abuse of power of a sufficiently serious nature while in public office;

(2) alternatively as a minimum, it was intended and agreed that D1 would in future, while in public office, when the opportunity arose commit at least one identifiable act that would amount to a serious abuse of power.

1.2 The Learned Trial Judge failed to recognize that the elements, in particular the requirement to establish the actus reus of the substantive common law offence of misconduct in public office, and hence an offence of conspiracy to commit misconduct in public office under section 159A of the Crimes Ordinance (Cap. 200), by reason of the requirements in the common law for the offence of misconduct in public office, required the prosecution to prove that:-

(1) it was intended and agreed that D1 would carry out a specific act in abuse of power of a sufficiently serious nature while in public office;

(2) alternatively as a minimum, it was intended and agreed that D1 would in future, while in public office, when the opportunity arose, commit at least one identifiable act that would amount to a serious abuse of power.

1.3 In this connection, the Learned Trial Judge also erred in:-

(1) Failing to dismiss count 5 at the close of the prosecution case.

(2) Permitting the prosecution to address the jury on the basis that on an allegation of conspiracy to commit misconduct in public office it did not have to allege or prove that the conspirators intended and agreed that the public officer should commit any specific or identified act of misconduct.

(3) Allowing the Prosecution to represent to the jury that the payments made by D2 to D1 before he entered public office could be characterized as “bribes”.

(4) Allowing the prosecution to present the case on misconduct in reliance on the concept of “being or remaining favourably disposed” (a concept that applies

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only under the Prevention of Bribery Ordinance (Cap. 200) (POBO)) and to assert that the POBO did not apply merely for technical reasons.

Ground 2: Misdirection on Count 5

2.1 The Learned Trial Judge erred in the following respects in his directions to the jury in relation to Count 5:-

(1) Failing to direct the jury that the Prosecution was required to prove (a) it was intended and agreed that D1 would carry out a specific act in abuse of power of a sufficiently serious nature while in public office; (b) alternatively as a minimum, it was intended and agreed that D1 would in future, while in public office, when the opportunity arose, commit at least one identifiable act that would amount to a serious abuse of power.

(2) Directing the jury that the merits of D1's decisions or conduct during his tenure as Chief Secretary was irrelevant.

(3) Failing to summarise adequately or at all the evidence supporting the defence case that D1 had not committed any act of favour or breach of duty in respect of D2, D3, D4 or SHKP and to explain how such evidence might be relevant to the defence case that D2 had never agreed or intended that D1 would commit an act of misconduct The Learned Trial Judge erred in giving a “note book summary” of the evidence and failed to assist the Jury in his summing up when he failed to summarise and explain the significance of the material evidence with respect to count 5 on this issue. In particular he failed to identify the specific relevance of D2’s good character to this aspect of the case.

(4) Directing the jury that it could convict even if no act of favour was identified as being intended or agreed or was in fact performed.

(5) Directing the jury that acceptance of money by a public official in return for him in a general way being favourably disposed to the persons giving him money was itself capable of amounting to misconduct without any direction to the jury as to any of the facts or circumstances in which this would not amount to misconduct (for example if there was full disclosure of the payment) and the need to prove D2’s knowledge of those facts and circumstances before they could convict.

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(6) Directing the jury that the payments made by D2 to D1 before he entered public office could be characterized as “bribes” and failing to direct the jury that, insofar as an offence of misconduct was alleged to be committed by the acceptance of money by way of bribe, they had to be satisfied of the POBO ingredients identified in relation to count 7.

(7) Failing to direct the jury that it was necessary but not sufficient for the prosecution to prove that any misconduct particularized was a breach of duty.

(8) Failing to direct the jury on the need to assess the seriousness of any misconduct particularized and on the approach the jury should take to the assessment of seriousness. It was insufficient to refer to an abuse of the public’s trust in D1 as the holder of a public office. The jury should have been given assistance in determining how seriousness was to be assessed and that the threshold of seriousness was a high one.

(9) Failing to direct the jury that it had to assess the seriousness of any misconduct particularized from the point of view of each alleged co-conspirator in accordance only with the facts and circumstances known to the particular defendant in question and that the jury was prohibited from taking into account matters not known to him in that assessment. Each defendant had to be shown to have agreed and known the facts and circumstances relevant to the assessment of seriousness.”

4. Mr Perry, QC, for the respondent, filed with the court on 18 August

2015 written objections to the grant of leave to appeal against conviction

in respect of six of the grounds of appeal advanced by Thomas Chan and

one of the grounds of appeal advanced by Francis Kwan. Apart from

noting that, with the leave of the court, Thomas Kwok had withdrawn

ground 3 of his grounds of appeal against conviction, Mr Perry made no

other reference to the ground of appeal against conviction advanced by

Thomas Kwok. Clearly, Mr Perry does not oppose the grant of leave to

appeal to Thomas Kwok. In those circumstances, the court is able to deal

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with the matter by the procedure provided by paragraph 6A(4) of Practice

Direction 4.2 – ‘Criminal Appeals to the Court of Appeal’.

5. Whilst I am satisfied that ground 1 of the grounds of appeal against

conviction of Thomas Kwok involves questions of law only, such that the

leave of the court is not required, clearly ground 2 involves questions of

mixed fact and law. Nevertheless, I am satisfied that those grounds are

reasonably arguable.

Conclusion

6. Accordingly, I grant leave to appeal on ground 2.

(Michael Lunn)Vice-President

Mr David Perry, QC, Mr Joseph Tse, SC and Ms Maggie Wong, Counsel on fiat of the Department of Justice, for the respondent

Ms Clare Montgomery, QC, Mr Gary Plowman, SC and Mr Benson Tsoi, instructed by Davis Polk & Wardwell, for the 2nd applicant (D2)