As anticipated in our previous article “Rafael Hui & the Kwok Brothers: A Corruption Saga (Part 2)”, the verdict by the 9-member jury and the sentence passed by Macrae JA on 23 December 2014 was not the end of the case.  Mr. Kwok Ping Kwong Thomas (the “Applicant”), who was convicted of one count of conspiracy to commit misconduct in public office, was sentenced to 6 years’ imprisonment and a fine of HK$500,000. The Applicant has applied for leave to appeal against convictionand has also applied for bail pending appeal on the basis that his appeal is likely to be successful.  

The bail pending appeal was heard by the Court of Appeal.  At the end of the hearing, the Court of Appeal dismissed the application and this article will discuss the Applicant’s proposed grounds of appeal and the Court of Appeal’s reasons for decision.

Proposed grounds of appeal
Counsel for the Applicant has raised two grounds of appeal, the first related to the High Court Judge’s (the “Judge”) directions to the jury on what constituted the offence of “misconduct in public office” and the second related to the consistency of the jury’s verdicts. Each ground will be further discussed below.

The Judge’s directions to the jury
On the issue of misconduct in public office, the Judge directed the jury that there were 5 elements constituting such an offence:-

1.         a public official;

2.         in the course of or in relation to his public office;

3.         wilfully misconducted himself by act or omission;

4.         without reasonable excuse or justification;

5.         where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The Judge further directed the jury that the charges did not allege that the payments were made in return for any specific identifiable favour which Rafael Hui was to perform or had performed. The law did not require that any particular favour be specifically identified. The acceptance of money by a public official in return for a general favourable disposal was itself capable of amounting to misconduct by virtue of the breach of duties and obligations he owed to the public as a public official.

Counsel for the Applicant argued that the Judge’s directions to the jury erred in law. The offence of “misconduct in public office” required a specific act committed by the public official that constituted a serious abuse of power, duty or responsibility exercisable by him in the public interest and that “being or remaining favourably disposed” alone was insufficient to constitute the specific act of abuse of power required for the offence. 

Inconsistency of the jury’s verdict
As discussed in our previous article, three of the eight charges (the 2nd, the 5th and the 7th charges) involved the Applicant. In particular, the 2nd Charge and the 5th Charge were placed against, inter alia, the Applicant and Rafael Hui for conspiracy to commit misconduct in public office.

The Applicant did not dispute that he had paid Rafael Hui and/or was instrumental in the payment of the various sums to him in 2005. The Applicant’s case was that the $5 million (subject matter of the 2nd Charge) and the $8.5 million (subject matter of the 5th Charge) were payments to Rafael Hui as consultant’s fees under an oral agreement made in 2003 (the “Oral Agreement”). In accordance with the Oral Agreement, it was alleged that Rafael Hui would be paid a $30 million in return for his two years’ consultancy services provided to Sun Hung Kai Properties Ltd (“SHKP”).

Counsel for the Applicant argued that the factual issues on the 2nd Charge and the 5th Charge were the same, both involving the payments made pursuant to the Oral Agreement. Therefore, when the jury acquitted the Applicant of the 2nd Charge, they must have concluded that there was or might have been such an Oral Agreement. On that basis, the jury could not have convicted the Applicant on the 5th Charge as the prosecution must have failed to prove beyond reasonable doubt that the Oral Agreement did not exist.   

The Court of Appeal’s reasoning
In respect of the Applicant’s criticism of the way in which the Judge directed the jury, the Court of Appeal rejected the Applicant’s argument that the prosecution must prove that the Applicant had agreed and intended that Rafael Hui, acting as a public officer, would wilfully abuse his powers and favour SHKP by a specific act in breach of his official duty imposed for the benefit of the public. 

The Court of Appeal ruled that it was a gross and obvious act of misconduct on the part of Rafael Hui to accept a large sum of money so that he would be favourably disposed towards SHKP. Such act had injured public interest and called for condemnation and punishment. The Court of Appeal further remarked that the Judge’s directions had clearly identified the issues and the summing up was detailed and fair.

In respect of the alleged inconsistency in the jury’s verdict, the Court of Appeal considered that the jury was entitled to reach different verdicts in respect of the 2nd Charge and 5th Charge against the Applicant. The factual context that gave rise to the 2nd Charge and the 5th Charge were materially different: the mode and the timing that the payments under those charges were made were different and the defendants in those charges were different.

In the circumstances, it was for the jury to decide which parts of the Applicant’s evidence they accept or reject, and which parts might give rise to a reasonable doubt as to the Applicant’s guilt. In any event, the prosecution had alleged three separate conspiracies against the Applicant and it was never the Applicant’s case that the three charges against him should stand or fall together.  The Court of Appeal considered that the Applicant failed to show that the verdicts were logically inconsistent and that there was no rational explanation for the inconsistency.

For the court to grant bail pending appeal, the burden is on the Applicant to satisfy the Court that the appeal is likely to be successful. At this stage, on the available materials and the arguments presented by the Counsel for the Applicant, the Court of Appeal concluded that the appeal did not have any real chance of success. In the circumstances, the Court of Appeal refused to exercise discretion to grant the Applicant bail pending appeal.

Leave to appeal against conviction
Having said that, this is only the Court of Appeal’s preliminary view on the merits of the Applicant’s appeal upon the Applicant’s application for bail pending appeal. The Applicant’s application for leave to appeal against conviction was scheduled to be heard on 2 November 2015, which will be heard together with the applications for leave to appeal made by the other 3 defendants, namely Rafael Hui, Thomas Chan and Francis Kwan and the trial is expected to last 7 days.  Stay tuned for further updates.

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk

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IMPORTANT: The law and procedure on this subject are very specialized 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.