Why Was Stephen Chan Chi-Wan Convicted Again?
Introduction
As mentioned in last month’s newsletter “Be My Guest Saga – How Can an Agent Prove Reasonable Excuse for Accepting an Advantage?”, the Court of Appeal has overturned the lower court’s decision and found Stephen Chan Chi-Wan (“Chan”) guilty. This newsletter seeks to explain the differences in approaches taken by the District Court trial judge Poon J and the Court of Appeal in order to appreciate better the possible applications of section 9 of the Prevention of Bribery Ordinance (Cap 201) (the “Ordinance”), which is likely to be the subject matter of an appeal to the Court of Final Appeal.
Background
To recap, Chan, the former general manager of the Television Broadcasts Limited (“TVB”), received $112,000 (the “Payment”) for attending and performing at Olympian City for the show “Be My Guest” at the New Year eve of 2009. In 2011, the District Court acquitted Chan on all 3 counts of charges, including (1) conspiracy to accept an advantage as an agent and (2) accepting an advantage as an agent, all under section 9 of the Ordinance. The Secretary of Justice successfully appealed on the 2 charges above and a re-trial was ordered. At the re-trial, Poon J found that Chan has successfully established a defence that he received the Payment with reasonable excuse and hence was acquitted. However, the Court of Appeal, for the second time, disagreed with the District Court and ordered it to find Chan guilty under the first charge above and to decide on sentencing.
The difference in approaches
In the re-trial, the District Court judge Poon J adopted a very sympathetic approach based on an overview of the totality of the facts. One may tell that he actually did not consider Chan doing anything really wrongful that warrants an imprisonment. He expressly mentioned for a number of times that Chan actually did nothing wrong other than not strictly handling the matter in accordance with his employment contract and he also emphasized that the offences being charged are very serious criminal charges instead of a civil claim. Poon J also adopted a liberal and common sense approach. In particular, he considered it perfectly normal for Chan not to apply for permission from his supervisor to perform at Olympian City if it has been the usual practice, and it is completely non-sensible to require Chan to suddenly change now. Therefore, Chan should be reasonably excused and be acquitted.
On the other hand, the Court of Appeal does not share the same sympathy that Poon J has but to follow its interpretation on the laws strictly. While Poon J relied on factors such as non-existence of conflicts of interest, absence of dishonesty and no intentional concealment to reach its conclusion, the Court of Appeal did not bother with them at all as they found them not the elements of the offence. The Court of Appeal also stressed that even TVB did not suffer any loss and/or there was no intentional concealment, receiving the Payment itself is always illegal under the law. In analysing the facts, the Court of Appeal instead focuses on whether performing at Olympian City relates to the business of the principal (TVB). As long as it relates to the principal (TVB) (which is a fact that the Court of Appeal has already concluded when they dealt with the case for the first time but was ignored by Poon J in the re-trial), then Chan should seek permission from the principal (under section 9(5) of the Ordinance) to be excused. Without such, Chan did not have any reasonable excuse and is guilty under the law.
Follow-up and stay of execution
On 13 November 2015, the Court of Appeal referred the case back to Poon J for conviction, plea in mitigation and and sentencing. However, it was adjourned to 18 December 2015 for Chan’s application for a stay of execution as Chan has already filed a notice of motion of appeal to the Court of Appeal. In general, a stay of execution of judgment is applied for when matters which go to the validity of the judgment occurred after the judgment date and the court will grant a stay of execution if it considers just to do so. However, prima facie, an appeal does not operate as a stay of execution of the decision of the court below and given the unsympathetic attitude by the Court of Appeal, it is doubtful whether Chan would be able to get the stay of execution. We shall wait to see how the Court of Appeal responds.
For enquiries, please contact our Litigation & Dispute Resolution Department:
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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.
