CFA upholds MIPO convictions of ex-Chief Secretary and three others
2017-6-14
The Court of Final Appeal (CFA) today (June 14) unanimously upheld the convictions of a former Chief Secretary for Administration (CS), two former senior members of a listed company and a businessman on one count of conspiracy to commit misconduct in public office (MIPO).
The appellants were Hui Rafael Junior, also known as Rafael Hui Si-yan, 69, former CS; Thomas Kwok Ping-kwong, 65, former joint Chairman of listed Sun Hung Kai Properties Limited (SHKP); Thomas Chan Kui-yuen, 70, former Executive Director of SHKP; and Francis Kwan Hung-sang, 66, businessman.
Kwok, who was earlier granted bail while pending his appeal, was immediately sent to jail to serve his remaining prison term following the CFA ruling.
The appeals of Hui, Kwok, Chan and Kwan were heard by Geoffrey Ma Tao-li, Chief Justice of the CFA; Joseph Paul Fok Shiu-kong, Permanent Judge of the CFA; Patrick Chan Siu-oi, Frank Stock and Murray Gleeson, all Non-Permanent Judges of the CFA, on May 9 and 10, 2017.
In handing down a judgment today, the CFA said Hui was the second most senior officer in the Government of the Hong Kong Special Administrative Region. Being part of the Executive Council, he played an important role in the development of government policy. He was privy to highly confidential information, in relation to matters in which SHKP had substantial interests.
The CFA added that the conspiratorial agreement concerned Hui being paid HK$8.5 million in return for his favourable disposition while in the office of CS. This bargain was therefore clearly corrupt. Its purpose was to cause the anticipated CS to be inclined to show favour to the other conspirators’ interests. Once he had accepted the HK$8.5 million in relation to his holding the office of CS, his independence when he assumed office would be hopelessly compromised and he could not properly discharge his duties nor be trusted to do so.
In addressing a line of argument raised by the appellants during appeal, the CFA stated that the abuse of public trust contemplated by the conspirators was 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 CS. The fact that the payment made to induce that compromised state was made before he assumed his public office did not mean the abuse of trust occurred at the time of the making of the payment. That payment was made to secure an ongoing inclination on the part of Hui towards SHKP once he assumed the office of CS and it was by agreeing to act as CS whilst in the “golden fetters” constituted by that payment that he conspired to commit an act of misconduct sufficient to satisfy the conduct element of the offence of MIPO.
On December 19, 2014, Hui, Kwok, Chan and Kwan were variously found guilty of a total of five charges – three of MIPO, contrary to common law; one of conspiracy to commit MIPO, contrary to common law and Section 159A of the Crimes Ordinance; and one of conspiracy to offer an advantage to a public servant, contrary to Section 4(1)(a) of the Prevention of Bribery Ordinance and Section 159A of the Crimes Ordinance.
Four days later, Hui received a jail term of seven and a half years, while Chan was sentenced to six years’ imprisonment. Kwok and Kwan were each jailed for five years.
The appellants then appealed against their convictions on the five charges, but the appeals were subsequently dismissed by the Court of Appeal (CA). Chan’s separate appeal against sentence was allowed, but his total jail term remained the same at six years.
The CA later handed down a judgment granting a certificate to appeal to the CFA in relation to the charge of conspiracy to commit MIPO for the reason that points of law of great and general importance were involved. On July 12, 2016, the Appeal Committee of the CFA granted them the leave for appeal in relation to that charge only, and granted Kwok bail.
The charge stated that Hui, Kwok, Chan and Kwan conspired together between March 1, 2005 and June 30, 2007 for Hui to wilfully misconduct himself in the course of his public office, namely the CS, by remaining favourably disposed to SHKP, its subsidiaries or associated companies, Kwok, another joint Chairman of SHKP and/or Chan in return for a sum of HK$8.5 million through a series of payments from Kwok, the joint Chairman of SHKP, Chan and Kwan.
The appellants were Hui Rafael Junior, also known as Rafael Hui Si-yan, 69, former CS; Thomas Kwok Ping-kwong, 65, former joint Chairman of listed Sun Hung Kai Properties Limited (SHKP); Thomas Chan Kui-yuen, 70, former Executive Director of SHKP; and Francis Kwan Hung-sang, 66, businessman.
Kwok, who was earlier granted bail while pending his appeal, was immediately sent to jail to serve his remaining prison term following the CFA ruling.
The appeals of Hui, Kwok, Chan and Kwan were heard by Geoffrey Ma Tao-li, Chief Justice of the CFA; Joseph Paul Fok Shiu-kong, Permanent Judge of the CFA; Patrick Chan Siu-oi, Frank Stock and Murray Gleeson, all Non-Permanent Judges of the CFA, on May 9 and 10, 2017.
In handing down a judgment today, the CFA said Hui was the second most senior officer in the Government of the Hong Kong Special Administrative Region. Being part of the Executive Council, he played an important role in the development of government policy. He was privy to highly confidential information, in relation to matters in which SHKP had substantial interests.
The CFA added that the conspiratorial agreement concerned Hui being paid HK$8.5 million in return for his favourable disposition while in the office of CS. This bargain was therefore clearly corrupt. Its purpose was to cause the anticipated CS to be inclined to show favour to the other conspirators’ interests. Once he had accepted the HK$8.5 million in relation to his holding the office of CS, his independence when he assumed office would be hopelessly compromised and he could not properly discharge his duties nor be trusted to do so.
In addressing a line of argument raised by the appellants during appeal, the CFA stated that the abuse of public trust contemplated by the conspirators was 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 CS. The fact that the payment made to induce that compromised state was made before he assumed his public office did not mean the abuse of trust occurred at the time of the making of the payment. That payment was made to secure an ongoing inclination on the part of Hui towards SHKP once he assumed the office of CS and it was by agreeing to act as CS whilst in the “golden fetters” constituted by that payment that he conspired to commit an act of misconduct sufficient to satisfy the conduct element of the offence of MIPO.
On December 19, 2014, Hui, Kwok, Chan and Kwan were variously found guilty of a total of five charges – three of MIPO, contrary to common law; one of conspiracy to commit MIPO, contrary to common law and Section 159A of the Crimes Ordinance; and one of conspiracy to offer an advantage to a public servant, contrary to Section 4(1)(a) of the Prevention of Bribery Ordinance and Section 159A of the Crimes Ordinance.
Four days later, Hui received a jail term of seven and a half years, while Chan was sentenced to six years’ imprisonment. Kwok and Kwan were each jailed for five years.
The appellants then appealed against their convictions on the five charges, but the appeals were subsequently dismissed by the Court of Appeal (CA). Chan’s separate appeal against sentence was allowed, but his total jail term remained the same at six years.
The CA later handed down a judgment granting a certificate to appeal to the CFA in relation to the charge of conspiracy to commit MIPO for the reason that points of law of great and general importance were involved. On July 12, 2016, the Appeal Committee of the CFA granted them the leave for appeal in relation to that charge only, and granted Kwok bail.
The charge stated that Hui, Kwok, Chan and Kwan conspired together between March 1, 2005 and June 30, 2007 for Hui to wilfully misconduct himself in the course of his public office, namely the CS, by remaining favourably disposed to SHKP, its subsidiaries or associated companies, Kwok, another joint Chairman of SHKP and/or Chan in return for a sum of HK$8.5 million through a series of payments from Kwok, the joint Chairman of SHKP, Chan and Kwan.