Rafael Hui & the Kwok Brothers: A Corruption Saga (Part 1)
News of the corruption saga involving former Hong Kong No. 2 Rafael Hui and the Kwok brothers has been reeling off the press recently. This article explores the legal issues behind the charges levelled at the trio.
We have previously covered the essentials of the offence of misconduct in public office in our earlier article, “Is Donald Tsang Guilty of the Offence of Misconduct in Public Office?” In brief, misconduct in public office occurs where the accused is a public official who, in the course of or in relation to his public office, wilfully misconducted himself. Such misconduct may be a positive act or a failure to perform his duty, which could be wilfully negligent. The misconduct has to be serious and without reasonable excuse or justification. In assessing the severity of the misconduct, the court will have regard to the responsibilities of the office and the officeholder, the importance of the public objects they served and the nature and extent of the departure from those responsibilities.
Where a person agrees with another person or persons to do something which would amount to an offence being committed by at least one of them, or would have been an offence but for facts which made the commission of the offence impossible, the persons to the agreement would be guilty of conspiring to commit that offence.
Multiple charges have been pressed against Hui for misconduct in public office and conspiracy to commit misconduct. These included the allegation that he had accepted rent-free accommodation in two adjacent, luxurious flats from Sun Hung Kai Properties (“SHKP”) in Leighton Hill in return for a consultancy contract with SHKP when he was the managing director of the Mandatory Provident Fund Schemes Authority. Other allegations included receiving millions from Thomas Kwok, SHKP and go-betweens Thomas Chan, an executive director of SHKP and Francis Kwan, a childhood friend of Hui’s, in return for being “favourably disposed” to SHKP and failing to declare or concealing from the government that he was pocketing millions from the Kwoks, Chan and Kwan as a “reward” for his public service. Notably, there were allegations that he had leaked confidential information from the government relating to the Ma Wan project to the Kwoks and the possible conflict of interest in his handling of the West Kowloon Cultural District project as Chief Secretary despite acting as consultant for SHKP which bid for the project.
Mirroring the charges against Hui are charges against the Kwok brothers, Thomas Chan and Francis Kwan for conspiracy to commit misconduct in public service.
It would be entirely premature at this preliminary stage to draw conclusions on Hui and the Kwok brothers’ involvement in this issue. Nevertheless, in assessing the culpability of Hui and the Kwok brothers in relation to the saga, the court would likely be looking at the following factors. First, the fact that Hui was a public official and a high ranking one as Chief Secretary would mean that he comes under the ambit of the laws relating to misconduct in public office. Secondly, the court would consider the extent to which Hui pocketed funds from the Kwok brother and the go-betweens in light of the responsibilities of his office. Given his position, it would be safe to say that a high level of integrity and avoidance of conflict of interest would be expected, which would be hard to prove that he has discharged if the facts alleged against him are true. It is arguably the case that the misconducts complained of, the reception of millions, the lack of disclosure and the dual role he played as Chief Secretary and consultant to the SHKP in light of the flow of funds between the parties would be deemed serious and intentional.
It goes without saying that as the transactions were a two-way street, should Hui be found liable on these counts, it would be hard for the Kwok brothers and their accomplices to escape liability on the offence of conspiracy.
Watch This Space
Hong Kong is understandably wrapped up in the current saga following a spate of misconduct in public office allegations and the outcome of the case remains to be seen. In the meantime, stay tuned to see how the evidence bears out and if the offence may be made out on all counts.
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2014