Introduction

Mr Stephen Chan Chi-wan (“Chan”) was accused of accepting payments to host an event at the shopping mall of Olympian City in 2010 (“Event”) without informing the Television Broadcasts Limited (“TVB”), his then employer.He was charged with (1) conspiracy to accept an advantage as an agent, (2) accepting an advantage as an agent and (3) conspiracy to defraud.The first and second of the above charges were both related to s.9(1) of the Prevention of Bribery Ordinance (Cap.201) (“POBO”).

Chan was first acquitted by Poon J in the District Court on 2 September 2011, followed by the Department of Justice’s appeal to the Court of Appeal.On 21 November 2012 the Court of Appeal unanimously quashed Chan’s acquittal and directed his case for a re-trial in the District Court.After re-trial, Chan was acquitted again by the District Court on 7 March 2013.

s.9 POBO

Under s.9(1) POBO, an agent commits an offence if he solicits or accepts any advantage to do (or not do) something in relation to his principal’s affairs and business.However, such agent may raise “lawful authority” or “permission” from his principal as a defence.He may also raise the defence of “reasonable excuse”.

The Court Rulings

Ruling of the District Court in its Initial Trial

In the judgment for the initial trial in the District Court, Poon J first made substantial discussions on the capacity of Chan in hosting the Event, and concluded that Chan was just hosting the Event in his capacity as a celebrity but not as the agent (i.e.General Manager) of TVB.As s.9 POBO only applies to “agents”, Chan was accordingly acquitted.

Poon J continued to discuss that even if s.9 POBO applied, TVB’s knowledge and acquiescence as to Chan’s payment for hosting the Event (and other various shows) constitutes permission for such actions, and thus ought to be acquitted.

Ruling of the Court of Appeal

The Court of Appeal unanimously ruled that the District Court judge has misdirected himself for taking into account the capacity of Chan under which he received the payments.The Court of Appeal was of the view that a person would in any event be caught by s.9 POBO if he was, at the time of accepting payment, an agent of the principal.The case was directed back to the District Court for re-trial.

Ruling of the District Court at Re-Trial

By the time of re-trial, the only question left for Poon J to decide was whether Chan had a “reasonable excuse” and therefore ought to be acquitted.Poon J adopted an objective test, namely, whether in the eyes of a reasonable man, Chan was accepting payments with reasonable excuse.

Poon J made the following findings:

1. Chan had never concealed the fact that he was hosting the Event;

2. The Event was broadcasted by TVB, and had been discussed by senior officials of TVB;

3. The contract between TVB and the shopping mall Olympian City did not include any terms to the effect that Chan will host the Event, hence Olympian City had to contact Chan’s agentto negotiate the terms of his appearance separately.If a commercial deal between Olympian City and Chan was contemplated, and that the deal was negotiated through an agent who is definitely not going to work for free, it is beyond common sense to think Chan was agreeing to host the Event for free; and

4. Between June 2008 and January 2010, Stephen Chan participated in 20 private jobs, 18 of which he was remunerated.In those 18 jobs Chan notified his supervisor 9 of them, and his supervisor had never objected to Chan taking such jobs.

From his findings above, Poon J reached his conclusion that Chan did have a reasonable excuse, and thus acquitted.

Conclusion

Whether or not Chan had reasonable excuse to accept the payments for hosting the Event may be subject to debate, and the Department of Justice was certainly not satisfied with the judgment of Poon J as an appeal was filed almost immediately after the judgment was given.Accordingly, Chan is not out in the clear yet.