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The Rafael Hui Corruption Saga (Part 4): Does the Offence of Misconduct in Public Office Require Specific Act(s) in favour of the Briber?

2016-02-01

As anticipated in our previous articles, we now revisit the topic as the Court of Appeal has delivered a ruling on the appeals of Rafael Hui, Thomas Kwok and two others (the “Appellants”).  To establish the offence of misconduct in public offence, the court held the prosecution need not to prove specific act of the bribed officer done in favour of the briber. 

Background

In November 2015, the Appellants’ counsel (the “Counsel”) challenged the Appellants’ convictions. One of the main grounds is that the prosecution failed to prove specific instances of Hui acting in favour of Sun Hung Kai Property (“SHKP”).

On 19 February 2016, the Court of Appeal (the “CA”) unanimously rejected and dismissed the appeal.

Appeal

Accepting payment shortly before assuming office
constituted misconduct in public office?

In this appeal, the key issue was whether Rafael Hui’s acceptance of HK$8.5 million from SHKP and agreement to be or to remain favourably disposed towards SHKP as Chief Secretary constituted misconduct in public office, when the payments were made a few days, or even a few hours, before Hui became the Chief Secretary of HKSAR.

In other words, is the prosecution required to provide proof of specific act(s) done by Hui in favour of SHKP in order to establish the offence of misconduct in public office?

Appellants alleged specific act required

The Counsel submitted that, in order to convict the Appellants, the prosecution must allege and prove a specific act committed by Hui that would constitute a serious abuse of power, duty or responsibility exercisable by him in public office.

Moreover, even if it might not be necessary or possible to prove a specific act by Hui in favour of SHKP, there had to be an agreement that Hui would commit an act of misconduct, or a breach of at least one identifiable type of duty. Without such identification, it would not be possible to gauge the seriousness of Hui’s alleged acts (if any) to decide if such acts constituted misconduct in the public office.

Further, the Counsel suggested that “being or remaining favourably disposed” but without any intention to act was insufficient to constitute the act of abuse of power required for the offence of “misconduct in public office”.

CA ruled proof of specific act not necessary

In the detailed judgment, the Court found misconduct in public office does not require proof of specific act of the defendant done in favour of the briber.  Yeung VP found it is naive to think that a senior public officer would necessarily leave a trail for his corrupted conduct to be detected.

Yeung VP gave an example that corrupted conduct could simply be the in the form of an approving nod, or a knowing wink to the “paymaster”.  In such cases, it would be impossible to identify any specific or generic act of misconduct.  However, it did not mean that the failure to allege or prove such approving nod or knowing wink would imply a charge of misconduct in public office could not be established.

The CA is satisfied that as Hui had received $8.5 million from SHKP shortly before he became the Chief Secretary, he has been “sweetened”.  Such acceptance of “general sweetener” is sufficient to prove misconduct in public office.  As such, the prosecution need not to prove Hui’s specific act of favouritism towards SHKP in order to constitute misconduct in public office.

 


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

E: criminal@onc.hk                                       T: (852) 2810 1212
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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 © 2016

 

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