FACC 11/2016
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL APPEAL NO. 11 OF 2016
(ON APPEAL FROM CACC NOS. 103 OF 2012 AND 183 OF 2014)
_______________________
HKSAR
Respondent
and
CHAN CHI WAN STEPHEN ( 陳志雲 ) A p p e l l a n t
_______________________
THE RESPONDENT’S CASE
_______________________
Introduction
1.
This Appellant was granted leave to appeal to the Court of Final
Appeal against the Court of Appeal’s judgments in two appeals by
way of case stated, namely CACC 103/2012 and 183/2014 and the
following questions of law were certified by the Appeal Committee:(1) In the context of a section 9 offence under the
Prevention
of
Bribery
Ordinance
(Cap.201)
(“POBO”): (i) what is the mens rea required of an
agent to constitute him guilty of an offence under
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that section; and (ii) how should the element “in
relation to the principal’s affairs or business” be
interpreted having regard to the determination of
the Privy Council in Commissioner of the ICAC v
Ch’ng Poh [1997] HKLRD 652?
(2) In the context of a section 9 offence under
POBO, what is the proper approach the Court
should adopt in considering the defence of
reasonable excuse?
2.
Leave was also granted to the Appellant to appeal on the
substantial and grave injustice limb.
3.
For ease of reference, the Respondent adopts the abbreviation
used by the Appellant as set out in paragraph 2 of the Appellant’s
Case.
Procedural History
4.
The Appellant and a Mr. Tseng Pei-kun (‘TSENG’) were
defendants in DCCC 1214/2010 and were charged, inter alia, jointly
with one count of conspiracy for an agent to accept an advantage
contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery
Ordinance (Cap. 201) (‘POBO’) and sections 159A and 159C of Crimes
Ordinance Cap. 200, Laws of Hong Kong (‘the Charge’).
The
Appellant was also charged with one count of accepting advantage
contrary to section 9(1)(a) POBO as an alternative charge to the
Charge whereas TSENG was also likewise charged with one count of
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A/41 RV1
Offences at
A1/42-43
offering advantage contrary to section 9(2)(a) POBO as an alternative
charge to the Charge.
5.
On 2nd September 2011, the Appellant and TSENG were
A1/140
acquitted of all charges and the Secretary for Justice appealed against
the acquittals on the Charge and the two alternative charges to the
Court of Appeal by way of case stated. The Court of Appeal quashed
their acquittals on 21st November 2012 and directed the trial be
A2/213
CACS1
Paras.
144-146 at
A2/275
resumed for the trial Judge to further consider the issue of
“reasonable excuse”.
6.
On 7th March 2013, the trial Judge again, acquitted the
Appellant and TSENG on the basis that the defence of “reasonable
excuse” had been established.
The Secretary for Justice further
appealed against their acquittals and lodged a second appeal by way
of case stated.
On
26th
October 2015, the Court of Appeal again
quashed the acquittals and remitted the case back to the trial judge
with a direction to convict.
A2/311
RV2 Paras.
78-81 at
A2/381
A3/461
CACS2
Paras.
93-94 at
A3/507
The Appellant and TSENG were
convicted on 18th December 2015.
Prosecution’s Case at Trial
7.
Save for the observations below, the Respondent is agreeable
with the Appellant’s description of the prosecution’s case at trial
in
paragraphs 10 to 15 of the Appellant’s Case:(i) At paragraph 11, the Appellant stated that OC would
independently engage first class artists (artistes sic)
or celebrities of TVB.
However, the evidence was
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Part B (3)
Evidence of
AU (PW1)
only revealed that these extra artistes or celebrities
would be hired by OC but they are not necessarily of
TVB.
(ii) At paragraph 12, the Appellant claimed that Mr. Lai
Yiu Cheung (PW17) was another TVB artists (artiste
sic).
Part B (3)
Evidence of
HO (PW14)
To be precise, PW17 is only a ‘contract artiste’
and not a ‘managed artiste’.
As contract artiste, he
was contracted to perform a number of ‘show’ hours
for TVB dramas and was otherwise free to take up
any paid work offered by others.
to seek TVB’s permission.
There is no need
Part B (3)
Evidence of
LAI YIU
CHEUNG
PW17’s wife is his
manager.
(iii) At paragraph 13, OC engaged IEAP at a fee of
HK$160,000 for arranging the Appellant and Lai Yiu
Part B (3)
Evidence of
AU (PW1)
Cheung to perform in the Show.
(iv) At paragraph 15, the Appellant had not mentioned
about internal circular concerning POBO.
Part B (3)
Evidence of
LEE
(PW11)
The Defence Case
8.
The Appellant stated that it had relied on the defence of
reasonable excuse but it is to be noted that the Appellant had not
mentioned this in his written closing and only raised this after
exchanges between the judge and the prosecution during the
prosecution’s closing submission.
All along, the Appellant was
saying that the elements of the offence had not been established by
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Part B (3)
Evidence
Transcript
of Closing
Submission
the Prosecution and therefore there is no need to consider reasonable
excuse as a defense.
The 1st and 2nd Court of Appeal Case Stated Judgments
9.
The Respondent takes issues with the Appellant as to his
interpretation of the Court of Appeal’s judgments, CACS1 and CACS2,
as set out in paragraphs 17 – 24 of the Appellant’s Case.
These will
be canvassed in more detail below.
Respondent’s Submission on Question 1 (i)
10.
The offence against agent accepting advantage was first created
by section 4(a) of the Prevention of Corruption Ordinance, Cap 215 in
1948.
11.
Section 4(a) of the Prevention of Corruption Ordinance
provides that:“ 4. If(a) any agent corruptly accepts or obtains, or
agrees
to accept or attempts to obtain, from any
person, for himself or for any other person,
any gift or consideration as an inducement
or reward for doing or forbearing to do, or
for
having after the passing
of this
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Ordinance done or forborne to do, any act
in relation to his principal's affairs or
business, or for showing or forbearing to
show favour or disfavor to any person in
relation to his principal's affairs of business;
or
(b)
any person corruptly gives or agrees to give
or offers any gift or consideration to any
agent as an inducement or reward for doing
or forbearing to do, or for having after the
passing of this Ordinance done or forborne
to do, any act in relation to his principal's
affairs or business, or for showing or
forbearing to show favour or disfavour to
any person in relation to his principal's
affairs or business; or
…..
he shall be guilty of an offence.”
(Emphasis added)
Being based upon the English Legislation, the adverb, ‘corruptly’ was
used and which qualifies the actus reus of the different forms of the
offence, i.e., the soliciting, accepting or offering of advantage.
12.
The previous legislation was considered in AG v Ma Pak Chi
[1964] HKLR 98 and Blair-Kerr, J had this observation at page 116:-
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“…the
Prevention
of
Corruption
Cap.215 was enacted in 1948.
Ordinance,
Prior to that year,
the statute law on the subject of bribery was
contained in an Ordinance passed in 1898 called
the Misdemeanours Punishment Ordinance….It is
clear that the 1898 Ordinance was directed
against bribery on the part of persons holding
appointments in the Civil Service.
In my view the
Prevention of Corruption Ordinance, Cap 215, did
a good deal more than amend the law of
corruption.
It altered the whole scope of this
branch of the law.”
13.
In R v R.E. Low 1961 HKLR 13, the Court of Appeal considered
the word ‘corruptly’ used in section 4(a) of the Prevention of
Corruption Ordinance.
Reece J (president) at pages 35 – 38 stated:-
“ The meaning given to corrupt in this case would
certainly seem to follow the line of thought initiated
by Willes J. in Cooper v. Slade 6 H.L.C. 746 and
reiterated in the judgments of Martin and
Blackburn JJ. in the Bewdley Case (1689) 19 L.T.
676
and the Launceston Case (1874) 38 J.P.
630. And in the very recent case of Regina v.
Smith (1960) 2 W.L.R. 164 we find the dictum of
Willes J. in Cooper v. Slade applied.
…..
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At page 167 Lord Parker C.J. said: "The sole question, for the purposes of this case, as it
seems to the court, is whether the word 'corruptly' in its
context means deliberately offering money, or whatever
it may be, with the intention that it should operate on the
mind of the person to whom it is made so as to make him
enter into what I may call. a corrupt bargain, or whether
it means that the intention must be that the transaction
should go right through and that the offeror should
obtain the favour for which he sought. It seems to this
court that the word 'corruptly' here used (and it is a
word which appears throughout the Act and other Acts
dealing with corruption) is used in the former sense,
namely, that it denotes that the person making the offer
does so deliberately and with the intention that the
person to whom it is addressed should enter into a
corrupt bargain. The real argument to the contrary, and
it is an argument which has been pressed upon this court,
quite rightly, is that if that is all that 'corruptly' means,
then it really adds nothing to the words that are already
there in section 1(2) of the Act. That, to a large extent,
may be true, but it seems to this court that the word
'corruptly' in the sense to which I have referred may well
be necessary in section 1(2) in the case of rewards or fees
given for services or favours already rendered."
His Lordship continuing quoted the passage cited
above from the judgment of Willes J. in Cooper v.
Slade and concluded the judgment with these
words:-
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"The view which we have formed is, we think,
confirmed by the passage I have already quoted from
Willes J. in Cooper v. Slade. I will read it again: 'I think
the word "corruptly" in this statute means not
"dishonestly", but in purposely doing an act which the
law forbids as tending to corrupt voters.' It seems to this
court that those words apply in the present case. The
mischief aimed at by the Act, as the judge told the jury,
was to prevent public officers or public servants being
put in a position where they are subject to temptation. …”
…..
What then is the principle? I take the view that the
principle to be applied here is to be found in the
passage at page 169 of the judgment in Regina v.
Smith where Lord Parker said:"The mischief aimed at by the Act, as the judge told the
jury, was to prevent public officers or public servants
being put in a position where they are subject to
temptation".
The concept is that of putting a person in a position
of temptation,
…..
It is the fact of being placed in a position of
temptation resulting in a conflict of interest with his
duty which is the key to the meaning of the words
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"corruptly accepted" in the present case.”
and Blair-Kerr J at page 93 – 94 furthered:“Section 4(a) of Cap. 215 prohibits the acceptance by
an agent of a gift if that gift is accepted as an
inducement or reward for doing or
forbearing to
do, or for having done or for having forborne to do,
some act relating to his principal's business, and
provided the acceptance is corrupt. It seems to me
that the word "inducement" pertains to the state of
mind of the receiver and that the presence of the
words "corruptly" and "inducement", as qualifying
the
acceptance,
must
preclude
any
objective
approach to the interpretation of this section. The
section must be interpreted subjectively. That being
so, it is obvious that the mere acceptance of a gift,
even if undisclosed, does not in itself constitute the
offence. It is the inducing influence of the gift in
relation
to
the
recipient's
performance
or
non-performance of his duty which is the essence of
the offence. The inducement may be nothing more
than what is necessary to satisfy the desires of a
venal mind and which results in the recipient being
put, or appearing to be put, into a frame of mind in
which he is willing to perform or refrain from
performing his duty, or which results in his
performing his duty less efficiently than he would
otherwise perform it; but nevertheless the gift must
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operate, at some moment of time, as some sort of
inducement to a recipient who well knows that the
performance or non-performance of his duty calls
for no such inducement...”
Mills-Owen, J at pages 109 – 110 also concluded that:“…it is not correct to state as a matter of law that the
word "corruptly" adds nothing to the words of
section 4(a) of the Ordinance so that mere acceptance
by an agent, as such, of a gift, coupled with
non-disclosure, is definitive of the crime. On the
contrary, it appears to me that corruption is an
essential element of the offence thereby constituted.
Non-disclosure of a gift related to the affairs of the
principal may be strong, very strong, evidence of
corruption, but mere receipt of a gift in relation to the
affairs of the principal coupled with non-disclosure
thereof do not, in themselves, in my view, define the
crime…. I take the words "corruptly accept" to mean
that the money or other gift is received in the nature
or character of a bribe, so that where an agent is
charged with accepting money contrary to the action
he must be shown to have acquiesced in it being paid
to him for the purpose of influencing him in the
affairs of his principal; whether he carries out, or he
intends to carry out, or is in any way influenced in,
the transaction is immaterial.…”
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14.
It is clear from all the judgments quoted above that the mere
acceptance of an advantage by an agent was not enough. But if it
was proven that the acceptance was for the purpose particularized in
the charge, i.e., as an inducement or as a reward, etc., then the agent
would have accepted the advantage corruptly. It is submitted that
even in section 4(a) of the Prevention of Corruption Ordinance, the
adverb ‘corruptly’ simply point to the need to prove the particularized
purpose, it is not an additional element of the offence.
15.
In 1970, the POBO was passed and the word ‘corruptly’ was
removed. In the course of the debate, in the second reading of the
Bill, Mr. Oswald Cheung, who lobbied for its insertion said:“ I am somewhat astound that except in the
definition of the word Director in clause 2, the
word
‘corruption’
Ordinance.
is
nowhere
used
in
the
I am slightly staggered by it, as it is
an ordinance which is aimed not only at bribery
but at corruption whether it be in Crown servants
or public servants.”
16.
However, the Attorney General responded in explaining that
he was keen not to burden the new legislation with the word
‘corruptly’. He said:“ Past experience has been that this is difficult, and
many accused persons have not been charged, and
some have been charged but acquitted, because the
Prosecution was not able to establish that a
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payment of money in suspicious circumstances
was corrupt but had to leave it to the court to
draw an inference of corruption which it was
sometimes reluctant to do…I therefore believe that
the
adoption
of
the
Honourable
Member’s
suggestion would reduce the effectiveness of Part
II to an undesirable degree.”
17.
The POBO was passed without the word ‘corruptly’.
It is
submitted that the legislative intent is very clear, in that it removed
all the problem of construing the word ‘corruptly’.
It is submitted
that despite the long title of the POBO and the short heading to the
section 9 offence, ‘corrupt’ is not an element of section 9 offence.
The elements of section 9(1) are:(1) being an agent to a principal
(2) solicit or accept
(3) an advantage
(4) that the soliciting or accepting be as an
inducement, reward or otherwise on account
of
(5) him conducting himself in relation to the
principal’s affairs or business, by either:
(a) doing or forbearing to do an act in
relation to his principal’s affairs or
business; or
(b) showing or forbearing to show favour
or disfavor to any person in relation
to his principal’s affairs or business.
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18.
In any event, it is submitted that on proving the five elements
then bribery, as anyone would understand it would be established.
19.
In R v Looi Kim Lee [1985] 2 HKC 410, McMullin VP rejected
the argument that the Prosecution had to prove the corrupt motive
for an offence under section 9 of the POBO. His Lordship said at
page 417:“These cases support our opinion that one does not
have to look outside the words of the section in
order to find the ingredients of the offence, and in
particular that no motive is required to be proven,
though it may go to mitigation.
The intent
required is an intention to do the acts forbidden by
the
section
with
the
intention
of
the
recipient…‘showing or forbearing to show…’ etc as
the section sets out.”
20.
(Emphasis added)
Put simply, the only mens rea required for section 9 was an
intention to commit the acts proscribed by the section. Set in the
context of this case, it must be established that the Appellant
intended to accept the money as a reward for him doing an act in
relation to TVB’s business. There is no additional requirement of
intention to act ‘corruptly’ or being dishonest.
14 | P a g e
Respondent’s Submission on Question 1 (ii)
21.
In section 9 POBO, the proscribed act is qualified by the nature
of the act itself, i.e., in relation to principal’s affairs or business. In
Morgan v DPP [1970] 3 All ER 1053, Parker CJ said at 1057:“It is counsel for the appellant’s argument that the
words, “any act in relation to his principal’s
affairs” in s1(1) must mean in direct relation to his
principal’s affairs or, put another way, in relation
to matters concerning his principal where he owes
a duty as an agent…For my part, I am quite
satisfied that those words “ in relation to his
principal’s affairs” fall to be widely construed…”
(Emphasis added)
22.
The Privy Council in Commissioner of the ICAC v Ch’ng Poh
[1997] HKLRD 652 said at page 657:“So what do the limiting words mean?
They
mean that, for the section to apply, the person
offering the bribe, must have intended the act or
forbearance of the agent to influence or affect the
principal’s
affairs….Thus
it
is
an
essential
ingredient of the offence under s.9 that the action
or forbearance of the agent should be aimed at the
principal.
If it is sufficient for the purposes of the
person offering the bribe that the agent should act
on his own without involving his principal, then,
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whatever other offence may have been committed,
it is not a corrupt transaction with an agent for
the purposes of s.9.”
23.
In HKSAR v Fung Hok Cheung [2008] 5 HKLRD 846, Wright J
(as he then was) gave judgment of the Court of Appeal said at
paragraph 39:“The section does not require, nor should the
phrase
“aimed
at”
in
Commissioner
of
Independent Commission Against Corruption v
Ch’ng Poh be read as importing, any direct
adverse
proprietary
consequent
principal’s affairs or business.
to
the
What it
requires is that the person offering the
inducement intended the act to be carried out by
the agent itself in some way would influence or
affect the affairs or business of the principal.”
24.
The question whether the agent’s act is in relation to his
principal’s affairs or business is purely one of evidence and in
determining that the test or criteria adumbrated by the Privy Council
can be used; i.e. is the act done that is intended to influence or affect
the principal’s affairs; is it aimed at the principal. However, there is
no requirement that the agent’s act is adverse to the interest of the
principal.
25.
The Court of Appeal did not give a totally different
interpretation to Ch’ng Poh regarding the element “in relation to
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principal’s affairs or business” nor did the Court of Appeal say the
learned trial Judge is wrong in his interpretation of Ch’ng Poh.
Cheung JA suggested that the words used by the Privy Council were
merely to facilitate explanation of the casual relationship between the
A2/213
CACS2
Paras.
122-128
at A2/
264-267
act of the offending agent and his principal’s business. They are not
additional elements to be proved other than the causal relationship.
Yeung VP, in fact, found on the evidence that the Appellant intended
to influence or affect TVB’s business. His Lordship only rejected
that the prosecution has to prove the genuine/actual intention as
opposed to proving what the agent’s intention was from the evidence.
26.
The Respondent do not accept that the Court of Appeal has
departed from its own decision in HKSAR v Chan Ngan Lau [2010] 1
HKLRD 472. In both judgments of Yeung VP and Cheung JA, their
Lordships accepted that intention to influence or affect or intention
to do an act in relation to his principal’s affairs or business as the
requisite mens rea. The Court of Appeal had not changed any law.
Respondent’s Submission to Question 2
27.
The Appellant accepts that “without reasonable excuse” is a
defence and the burden of proving it lies on the Appellant by virtue of
section 24 POBO, however, it is argued that the burden of proof is
one of evidential burden only. The Appellant relies on the principle
enunciated in Ng Po On (2008) 11 HKCFAR 91 by this Honourable
Court. It is noted that this is the first time the Appellant raised the
issue on the test for burden of proof on the issue of “reasonable
excuse”.
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A2/213
CAC2
Paras.
149-153 at
A2/
276-279
28.
In Ng Po On, this Honourable Court was dealing with an
offence under section 14 POBO and had specifically said the same
principle may not be applicable to other sections of POBO. It is
submitted that Beeson J in HKSAR v Chan Tat Chung Danny [2010]
2 HKC 268, who held that the burden of proof is one of persuasive
burden, is correct and should be upheld by this Honourable Court.
29.
In Ngan Lun Yan v Queen 1976 HKLR 369, Huggins J. at page
372 stated:“The manifest intention of the Legislature was to
proscribe the offering, demanding, giving and
receiving of what may generically be termed
secret commissions. An employee ought to be
paid by his employer and not , save with his
employer's consent, by persons dealing with the
employer.”
Given the gravamen of section 9 offence is the accepting money from
a third party for doing an act in relation to his principal’s affairs or
business, it is entirely reasonable and proportionate that the accused
bear the burden of proving reasonable excuse.
Furthermore, the
inherent difficulties in investigating and prosecuting corruption
offence justify the reverse burden of proof.
It is submitted that both
the rationality and proportionality tests are satisfied.
30.
This Honourable Court in HKSAR v Ho Loy [2016] 19 HKCFAR
110 affirmed, at paragraph 36, that on considering the defence of
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reasonable excuse the court would involve looking into:(1)
First, self-evidently, the matters said to constitute
reasonable excuse must be identified.
(2)
Secondly, the court will then examine whether the
excuse is genuine, since the reason asserted for
departing from a relevant prescription must be the
real reason for doing so.
(3)
Thirdly, the court must make an assessment of
whether that excuse is reasonable, which the court
will do on an objective standard depending on the
particular facts of the case.
31.
In identifying matters said to constitute reasonable excuse, the
Appellant was relying that “TVB must have known of”, “permitted” or
“acquiesced in” the acceptance of the money by the Appellant. It is
submitted that when assessing the reasonableness in the Appellant’s
reliance of the above features as the basis of his defence of reasonable
excuse, the Court of Appeal was right in having regard to the
requirements of sections 9(4) and 9(5) which lays down very
stringent rules when permission is relied upon. If not, it would be
contrary to the legislative intent in enacting sections 9(4) and 9(5).
32.
The Court of Appeal is not saying that absence of best
endeavours in seeking permission is fatal to the general defence of
reasonable excuse, the Court of Appeal is saying that when the
reasonable excuse is identified as “TVB must have known”,
“permitted” or “acquiesced in”,
then the absence of anything done
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A3/461
CACS2
Paras.
87-89 at A3
/504-505
by the Appellant in trying to comply with the provisions of sections
9(4) and 9(5) is fatal.
33.
Secondly, the excuse relied on must be genuine.
The trial
Judge found that the Appellant had no doubt that TVB would allow
him to accept the money. However, as pointed out by the Court of
Appeal that there was no basis for this belief. Moreover, Mark Lee
gave evidence as to why he would not approve and his evidence was
not challenged by the Appellant. Furthermore, the Appellant did
not give evidence and what might be in his mind is mere speculation.
Difference Between Substantive & Inchoate Offence?
34.
The Appellant was convicted of conspiracy to commit section 9
offence and the Appellant suggested that “without reasonable excuse”
is an element to the offence of conspiracy and furthermore, the mens
rea for the offence of conspiracy includes knowledge of no reasonable
excuse.
The Appellant relies on this Honourable Court’s decision
in Ng Po On. Again, this is raised by the Appellant for the first time.
35.
In Ng Po On, this Honourable Court was not dealing with a
conspiracy to commit a POBO offence and neither was section 12A(1)
POBO brought up for their Lordships consideration. Section 12A(1)
provides:“(1) Any person convicted of conspiracy to
commit an offence under this Part shall be dealt
with and punished in like manner as if
20 | P a g e
A3/461
CACS2
Paras.
67-79 at
A3/
494-500
convicted of such offence and any rules of
evidence which apply with respect to the proof
of any such offence shall apply in like manner to
the proof of conspiracy to commit such offence.”
(Emphasis Added)
36.
In The Queen v Richard Frank Handforth and Others (CACC
361/1984, unreported), the Court of Appeal had held that by virtue of
section 12A(1), the assistance provided by section 21(2) is available
on a charge of conspiracy to commit a s.4(2) POBO offence.
37.
It is submitted that assistance provided for in Part IV of POBO
in proving POBO offences are available by virtue of section 12A(1) to
conspiracy to commit POBO offence. It is therefore submitted that
on a charge of conspiracy to commit a section 9 POBO offence, the
Defence bears the burden of proving reasonable excuse and there is
no additional mens rea of knowledge of lack of reasonable excuse.
Respondent’s Submission on the Substantial and Grave
Injustice Ground
38.
As to whether there is substantial and grave injustice this
depends on whether the Court of Appeal has departed from the
accepted norm which departure is so serious as to constitute a
substantial and grave injustice. It is suggested by the Appellant that
the Court of Appeal erred in wrongly interpreting Ch’ng Poh and not
following Chan Ngan Lau, which as submitted above is an incorrect
assertion.
The Court of Appeal was right in deciding that
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‘reasonable excuse’ is a defence which the Appellant bears the burden
of proving on a charge of conspiracy to commit a section 9 offence.
Furthermore, the Court of Appeal was right in concluding that the
mens rea were proved against the Appellant. The Court of Appeal
had not departed from the accepted norm.
39.
The Appellant submitted that the Court of Appeal erred in
concluding that it is perverse for the learned trial Judge to find that
there was reasonable excuse. It is submitted that such a finding is
A3/461
CACS2
Paras. 76
at A3/499
perverse as the significance of the fact that the hosting of the side
show was in relation to TVB’s affairs or business was not considered
by the trial Judge.
The Court of Appeal had not erroneously
adopted a restrictive approach to the general interpretation of the
defence of ‘reasonable excuse’. It is only in circumstance where the
Appellant was in fact relying on matters supporting permission or
belief in permission that the Court of Appeal opined that the
Appellant must show some steps being taken towards obtaining
permission before one could say it is reasonable.
As submitted
above, the Court of Appeal is right in rejecting what was relied upon
as there was no basis for such a belief.
40.
The relevance of the trial Judge’s finding of lack of dishonesty,
lack of concealment and lack of conflict of interest in determining
that the Appellant had reasonable excuse was challenged by the
Respondent in the second case stated. The Court of Appeal did not
decide on this as the Court had already concluded that the Appellant
had no reason at all to think that he could accept the money and this
conclusion was based on undisputed evidence.
22 | P a g e
A3/ 461
CACS2
Para. 90-91
at A3/
505-506
41.
Not only was Mark Lee’s evidence unchallenged, but there was
also no evidence adduced by the defence which contradicts him.
Mark Lee’s evidence, in particular, as to why he would not give
permission even if asked, is supported with reasons. There is simply
no basis for the learned trial Judge to reject it.
42.
This is not a case of moonlighting as the Appellant’s act was in
relation to TVB’s affairs or business. There is no requirement of
corrupt intent as submitted above, what is required is the intention to
do what was forbidden by the POBO.
43.
It is therefore submitted the conclusion that the Appellant has
reasonable excuse is one which no reasonable tribunal could have
come to.
The Issue of Misjoinder
44.
The Appellant based his argument that the burden of proving
‘reasonable excuse’ is different.
As submitted above, there is no
difference. The Appellant bears the burden of proving ‘reasonable
excuse’ no matter the charge is one of substantive offence under
section 9 or conspiracy to commit it by virtue of section 12A(1).
45.
In any event, whether an accused will be prejudiced or
embarrassed in his defence as a result of a joinder of counts, then he
is in the best position to render assistance to the court. However,
the Appellant had not made any application against the joinder of
counts before the trial Judge. In fact, this was not raised in his
23 | P a g e
A3/ 461
CACS2
Para. 82-85
at A3/
501-503
application to this Honourable Court for leave to appeal.
Dated this 7th day of September 2016.
Eric Kwok S.C.
Senior Counsel for the Respondent
Felix Tam, SPP
Counsel for the Respondent
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FACC 11/2016
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL APPEAL NO. 11 OF 2016
(ON LEAVE TO APPEAL FROM
CACC NOS. 103 OF 2012 AND 183 OF 2014)
_______________________
HKSAR
Respondent
and
CHAN CHI WAN STEPHEN (陳志雲)
_______________________
THE RESPONDENT’S CASE
_______________________
Dated:
Filed:
7th September 2016
7th September 2016
Department of Justice
5th -7th Floor, High Block,
Queensway Government Office,
66 Queensway, Hong Kong
Tel: 2867 3190
Fax: 31051387
25 | P a g e
Appellant