By Richard Thomas
Court of Final Appeal
Misconduct in public office - wilful misconduct and seriousness
HKSAR v Tsang Yam-kuen, Donald
 HKCFA 24 FACC No. 29 of 2018 on appeal from CACC No. 55 of 2017
The Appellant was Chief Executive and President of the Executive Council. He was charged with one offence of bribery and two offences of misconduct in public office. The allegation related to licences for sound broadcasting issued following a government tender. Four applications were made and all of the applications were ultimately approved by the Appellant as Chief Executive in Council. There was no evidence of any irregularity in the applications or the administrative process by which they were handled.
The Appellant was, at the same time, arranging to live in a Shenzhen apartment owned by a company controlled by one of the companies issued with a licence. He was to pay a rent but there were to be very extensive refurbishments. The Appellant had made declarations of interest on many occasions during his term of office and was obviously aware of the importance of declaring interests when necessary. He made no declaration of interest to the ExCo regarding the property.
In February 2012, the media raised concerns about the Appellant’s integrity in respect of his associations with prominent business people. On 26 February 2012, the Appellant then accepted in a radio interview that he was renting the property. He explained in the interview that it did not occur to him a declaration of interest regarding the property to the ExCo was required, and that such a requirement was “pretty farfetched”. The Independent Commission Against Corruption commenced an investigation.
The Appellant was tried in the Court of First Instance before a judge and jury on three counts. The first count was accepting an advantage as Chief Executive contrary to s.4(2B)(a) and s.12 of the Prevention of Bribery Ordinance (Cap. 201), the allegation being the refurbishment of the property was a bribe for the Appellant’s handling of the applications. The second and third counts were two counts of misconduct in public office, contrary to common law and punishable under s.101I(1) of the Criminal Procedure Ordinance (Cap.221) which reflected the deliberate concealment of the Appellant’s dealings with the company, with an alternative case of failing to declare or disclose, or concealing the dealings.
The jury (and a subsequent jury) was unable to reach a verdict in respect of Count 1 but the Appellant was convicted on Count 2 (and acquitted on Count 3). He was sentenced to a term of imprisonment.
The appeal therefore related only to Count 2, but the Court of Appeal regarded the jury’s guilty verdict on Count 2 as evidence of a rejection of the Appellant’s explanation for his non-disclosure to the ExCo and his appeal was dismissed.
On appeal to the CFA, the appeal required a consideration of the way the prosecution had been advanced: The primary prosecution case was that the Appellant’s dealings with the company were corrupt, and that they were deliberately concealed in order to hide that corruption. If that case had been accepted, there would have been a conviction on Count 1 (and, inevitably, Count 2). The jury was however unable to reach a verdict on this primary case. The alternative prosecution case on Count 2 proceeded on the basis that the dealings between the Appellant and the company were not proven to be corrupt but nonetheless there was a non-disclosure of the relationship. Under this alternative case, issues regarding wilfulness and seriousness of the non-disclosure were central to the offence of misconduct in public office. The key issue in this appeal was therefore whether the jury was safely directed on how to approach the elements of wilful misconduct and seriousness.
The trial judge directed the jury that “wilfully” in this context meant “deliberately”, rather than by accident and inadvertence or oversight. As to seriousness, the trial judge said that it had to be “serious, not trivial”, and that the jury should assess this by considering the responsibilities of the Appellant and the office, and the extent to which he departed from these responsibilities.
The CFA concluded:
- The trial judge’s direction on the issue of wilfulness was inadequate. A decision-maker’s failure to disclose an interest in the subject matter of the decision might be deliberate in the sense that he considered disclosure and decided against it, but not wilful because he did not know or believe there was an obligation to disclose in the circumstances of the case and did not disregard the risk of there being such an obligation. A conscious but erroneous decision not to disclose was not the same as a wilful failure to disclose, or concealment. On the alternative ‘non-corrupt case’ on which he was convicted, there was a disputed issue that was not explained to the jury in the judge’s direction on wilfulness. The jury’s guilty verdict on Count 2 could not simply be regarded as a total rejection of the Appellant’s explanation such that the judge’s inadequate direction on wilfulness could be treated as immaterial.
- The trial judge’s direction on the issue of seriousness was also inadequate. If the primary prosecution case of corruption was accepted by the jury, corruption as the motive for concealment would have been established and the element of seriousness would have required little elaboration. In the present case, since corruption had not been established, an evaluation of the nature and extent of the Appellant’s departure from his responsibilities and the seriousness of possible consequences required consideration of the motives behind his omission, what he was required to disclose, and the consequences of non-disclosure, none of which were properly analysed.
The appeal was therefore allowed and the Appellant’s conviction and sentence (which he had served) was quashed and no new trial ordered.
Perverting the course of justice – meaning of “tendency”
HKSAR v Lew Mon Hung
 HKCFA 22 FACC No. 24 of 2018 on appeal from CACC No. 66 of 2016
The common law offence of attempting to pervert the course of justice requires that the accused’s act has to have a tendency to pervert the course of justice. This case arose from an investigation by the Independent Commission Against Corruption against the Appellant.
The Appellant was arrested and interviewed by the ICAC on suspicion for having conspired with others to commit an offence contrary to the Prevention of Bribery Ordinance (Cap 201). He was released on bail after the arrest and interview.
On the Appellant’s instruction, his personal secretary prepared and sent emails addressed to the Chief Executive of the HKSAR and the Commissioner of the ICAC. The Appellant protested his innocence in the email and requested the Chief Executive and the Commissioner to stop the investigation, describing it as “groundless” and “political persecution”. The Appellant claimed that if the investigation was not terminated, “a political bomb would be detonated”.
A few days later, again on the Appellant’s instruction, his personal secretary prepared and delivered a letter addressed to the Chief Executive and copied it to the Commissioner. It directly accused the Chief Executive of instigating the Investigation and claimed that, if it was not stopped immediately, the Appellant would announce the call for the Chief Executive’s resignation to the media and the Central People’s Government using “shocking insider information”. The letter requested the Chief Executive to instruct the ICAC to stop the investigation.
The Appellant was tried and acquitted on conspiracy charges arising from the investigation. He was subsequently tried on January 2016 in the District Court for doing acts tending and intended to pervert the course of public justice, contrary to common law. The Appellant was accused of seeking to rely on his past dealings and association with the Chief Executive, by threat or by intimidation, to influence the Chief Executive and/or the Commissioner to terminate the Investigation. He was convicted in the District Court and sentenced to 18 months’ imprisonment. The Court of Appeal upheld the conviction.
The first – and key - issue was whether, in order to prove that the Appellant’s acts had a tendency to pervert the course of justice, it was necessary for the prosecution to establish that the Chief Executive or the Commissioner could lawfully exercise a legal power that he possessed to stop or interfere with the criminal investigation.
The Court held that for an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. This included acts that have a tendency and are intended to frustrate or deflect the course of imminent, probable or possible curial or tribunal proceedings. The offence may be found on acts of interference in relation to curial proceedings which may result from an investigation. This is a question of fact in every case and the Court found that the Appellant’s suggestion that in order for the approaches to them to have a tendency to pervert the course of justice, the Chief Executive and the Commissioner must have the legal power to stop the investigation was unrealistic on the facts of the case as the Chief Executive was undoubtedly in a position to influence or otherwise affect the Commissioner’s handling of the investigation, if not to stop it altogether. The Commissioner, was similarly in a position to disrupt the investigation.
The answer to the question posed was therefore “no”. In the light of the Court finding against the Appellant on this point, the other questions did not need to be considered. The appeal was dismissed.
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