Former Hong Kong No 2 begins final bid to overturn misconduct conviction
Ex-chief secretary Rafael Hui is fighting charge alongside property tycoon Thomas Kwok
Jailed former No 2 official Rafael Hui Si-yan will on Tuesday contest his conviction alongside property tycoon Thomas Kwok Ping-kwong in one of the city’s highest-profile appeal bids.
Hong Kong’s top court will hear in the next two days the pair’s appeal against the misconduct charge of which they were found guilty in 2014.
If successful, Kwok, former joint chairman of Sun Hung Kai Properties, could see an early end to his five-year jail sentence for the offence. But Hui will remain in prison even if his bid goes through, as he was also found guilty of four other charges that the Court of Final Appeal did not grant him permission to challenge.
Arriving at court shortly before 10am, when the appeal was due to start, Kwok said he was a little nervous but was putting his faith in the hands of God, adding that he had been praying every day.
“My mind is at peace, and I sleep well. And I hope for the best,” he said, surrounded by reporters.
As the hearing began, Hui made his first public appearance in months behind the dock, clad in thick black coat.
Hui shook hands with Kwok, who, after entering the dock, smiled and waved at his counsel.
The appeal is set to centre on whether Hui’s “favourable disposition” to Kwok was a strong enough criminal element by the standards of law, as the trial court heard earlier that he was paid millions to be Kwok’s “eyes and ears” in the government.
Hui, who was chief secretary from 2005 to 2007, was sentenced to seven and a half years in jail for pocketing almost HK$19.7 million in bribes and in committing misconduct in public.
Kwok was convicted of one count of conspiracy to commit misconduct in public office involving HK$8.5 million worth of illegal payments.
Kwok’s son, Adam Kai-fai, who came to support his father, described the last few days as having been “nothing out of the ordinary” as the family felt a “supernatural peace”.
He had little comment on his expectations of the case, but said: “We are very hopeful because of the [religious] faith we have.”
Thomas Kwok’s brother Raymond was also in court to support his sibling.
Two co-defendants, Thomas Chan Kui-yuen, a former Sun Hung Kai subordinate, and Francis Kwan Hung-sang, an ex-stock exchange official, are serving six and five years respectively for handling HK$11.18 million as middlemen. They are also contesting in the final appeal.
The case came to light in 2008, when the Independent Commission Against Corruption received an anonymous letter accusing Thomas and Raymond Kwok, who was acquitted of all charges during the trial, of providing Hui with rent-free accommodation at Leighton Hill.
ICAC arrested and charged the defendants in 2012 with conspiracy to bribe Hui with millions of dollars.
The HK$8.5 million conspiracy
The offence at the heart of the appeal centred on a payment of HK$8.5 million that prosecutors alleged was the result of a conspiracy taking place between March 1 and June 30, 2005.
There was no dispute that eight payments adding up to that sum were made to Hui’s account, either directly or at Kwan’s direction, at a time when it was known that Hui was about to be appointed chief secretary in 2005.
It was also not disputed that those payments came ultimately from Kwok, then co-chairman of one of Hong Kong’s largest property developers.
On June 20 and 28, Kwok gave Chan two cheques for HK$4 million and HK$4.8 million.
In between those payments, Kwan received a cashier’s order for the sum of HK$10.8 million from an account operated by Chan and his family.
The final instalments of the HK$8.5 million were paid into Hui’s account on the morning of June 30, mere hours before he was sworn into office.
Prosecutors were unable to establish during the 131-day trial that Hui had in fact committed any particular act that constituted a serious abuse of power, duty or responsibility exercisable by him as chief secretary to favour Sung Hung Kai.
But they argued that the HK$8.5 million was paid pursuant to a conspiratorial agreement for Hui’s misconduct in public office, and noted that he was personally involved in important billion-dollar projects in which the developer had substantial interests.
The payments, they continued, were in effect “bribes”, a general sweetener made to secure Hui’s favourable disposition towards the company and funnelled through elaborate means to ensure they were concealed.
Prosecutors further argued that Chan had contributed his own funds, and that Kwan was then rewarded for his part in the transactions.
The defence countered that such payments were legitimate, outstanding private consultancy fees, made in accordance with an undocumented oral agreement between Hui and Kwok, for Hui’s service from 2003 to June 2005.
The court also heard that the circuitous and devious route was adopted to avoid detection by Kwok’s mother and elder brother, Walter, who refused to endorse the decision to engage Hui.
But the nine-strong jury eventually sided with the prosecution.