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CACC 444/2014

IN THE HIGH COURT OF THE

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HONG KONG SPECIAL ADMINISTRATIVE REGION


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CRIMINAL APPEAL NO. 444 OF 2014

(ON APPEAL FROM HCCC NO. 98 OF 2013)

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COURT OF APPEAL

BETWEEN

HKSAR

Respondent

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KWOK Ping-kwong Thomas ()

2nd Applicant (D2)

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Before: Hon Lunn VP in Court

Date of Judgment: 11 September 2015


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JUDGMENT
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.

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Count 5

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

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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

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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

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filed with the leave of the court on 14 August 2015 two grounds of appeal
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only are advanced, on behalf of Thomas Kwok, which it is submitted


involved wrong decisions on questions of law thereby rendering his

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conviction unsafe and unsatisfactory. Those grounds are:


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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;

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(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;

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(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.
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In this connection, the Learned Trial Judge also erred

(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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- 4 only under the Prevention of Bribery Ordinance


(Cap. 200) (POBO)) and to assert that the POBO did
not apply merely for technical reasons.

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Ground 2: Misdirection on Count 5


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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 D2s 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 D2s 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 publics 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

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Direction 4.2 Criminal Appeals to the Court of Appeal.


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

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

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reasonably arguable.
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Conclusion

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

(Michael Lunn)
Vice-President

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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)

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