Introduction

We now revisit the topic as the Court of Final Appeal (“CFA”) has delivered a ruling on the appeals of Hong Kong’s former No. 2 Rafael Hui (“Hui”), property tycoon Thomas Kwok (“Kwok”) of Sun Hung Kai Properties (“SHKP”) and two others (collectively the “Appellants”). The appeals were dismissed unanimously by the five presiding CFA judges on 14 June 2017, who ruled that the abuse of public trust contemplated by the conspirators in the present case is clear and, by agreeing to place himself in such a compromised state, Hui made an agreement which contemplated a continuing act of misconduct whilst he was Chief Secretary.

Background

In the period between 27 and 30 June 2005, payments totalling HK$8.5 million were made into Hui’s bank account by Kwok via two co-appellants just before Hui took office as Chief Secretary.  The payments were made in secretive manner, and elaborate lengths were taken to ensure that they were concealed and not recorded in any documents. After assuming office, Hui was in charge of projects, including the Ma Wan Park Project and the West Kowloon Cultural District Project, in which SHKP had a significant interest.  The prosecution case was that the payments were made as a “general sweetener” to secure Hui’s “favourable disposition” and were in effect “bribes”.

The conviction and appeal

The Court of First Instance (a 9-member jury trial) in 2014 held, among other convictions, that Hui was paid HK$8.5 million to be the “eyes and ears” of SHKP in the government, at which the jury returned verdicts of guilty on conspiracy to commit misconduct in public office.  The group appealed to the Court of Appeal in February 2016 but in vain.  They further appealed to the CFA.

Question before the CFA

The crux of the present appeal rests on whether such an agreement is capable of answering the description of an agreement on the part of Hui to misconduct himself in the course of or in relation to his public office.  The Appellants argued that “no relevant act of misconduct” was involved.  What was alleged to constitute the intended misconduct was “merely a state of mind”, which the Appellants argued that the criminal law does not recognise mere “motive” or “inclination” as “sufficient for the commission of a criminal offence”.

Decision

The law on misconduct in public office and bribery was considered by the CFA, taking into account various decisions in multiple common law jurisdictions including Canada, Australia, and the United Kingdom as the offence of misconduct in public office is a common law offence.  The first anti-bribery legislation in Hong Kong, namely the Misdemeanors Punishment Ordinance 1898, till the current legislation, the Prevention of Bribery Ordinance 1970 (Cap. 201), entrenched the same concept that the purposive element of the offence concerns the tendency to obtain improper influence or secure a disloyal inclination.  While the legislative development in Hong Kong has been to widen the anti-corruption net, the original concept of purchasing improper influence or an inclination to act contrary to duty remains unchanged.

The CFA considered that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.  Further, there must be a relevant relationship between the act or omission constituting the misconduct and the public office.  The essence of the offence is the abuse of public trust by the officer.  The misconduct must be serious, not trivial, and it is essential to consider the context of the case by identifying the responsibilities of the office and the officeholder.

In the present case, Hui, as Chief Secretary, was the second most senior officer in the government, and he was involved in important matters of policy concerning the Ma Wan Project and the West Kowloon Cultural District Project, both in which SHKP had substantial commercial interest.  He was also a Principal Official, who was subject to the Code for Principal Officials relating to conduct and conflict of interest.  It is quite obvious that Hui was “appointed to be a sentinel of the public welfare”.

As to the character of the conspiratorial agreement, the CFA finds that the payment was made shortly before Hui assumed his position as a public officer and such a payment was made in return for his favourable disposition while in office.  This clearly is a corrupt bargain.  CFA also finds that Hui’s acceptance of the payment was a “serious abuse of office and public trust” and his independence when he assumed office would be hopelessly compromised.  This involved a continuing offence that commenced from the time he entered into his public office and infected the entire period he held that office under the influence of the payment made to him.

As such, the abuse of public trust contemplated by the Appellants in the present case is therefore clear.  That payment, even made before Hui actually took office and did not relate to any specific acts or omissions, was made to secure an ongoing inclination on the part of Hui towards SHKP once he assumed the office.  The acceptance placed Hui in the “golden fetters”, and of which Hui conspired to commit an act of misconduct sufficient to satisfy the conduct element of the offence of misconduct in public office.  Accordingly, the appeals are dismissed.

Conclusion

The CFA decision marks an end to the year-long court battle.  This case not only confirms that misconduct in public office does not require proof of specific act of the defendant done in favour of the briber, but also sets a precedent that pre-office advantages accepted by a public officer could still amount to an abuse of the public trust and hence sufficient to satisfy the conduct element of the offence of misconduct in public office.

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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.