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Rafael Hui Si-yan

Former Hong Kong No 2 Rafael Hui’s acceptance of HK$8.5m did not amount to misconduct, court hears

Lawyer says the payment by tycoon Thomas Kwok was to buy the official’s ‘good feeling’ and that without an agreement of anything in return, the pair should not have been convicted

PUBLISHED : Tuesday, 09 May, 2017, 4:48pm
UPDATED : Tuesday, 09 May, 2017, 11:40pm

A former top Hong Kong government official jailed for corruption began his final appeal on Tuesday, with his lawyers arguing that he should not have been found guilty even if he took money from a property giant in exchange for his “good feeling”.

Defence lawyers told the Court of Final Appeal that former chief secretary Rafael Hui Si-yan would otherwise be innocent as there was no evidence of any specific agreement or act to favour his paymasters, who included billionaire Thomas Kwok Ping-kwong, former joint chairman of Sun Hung Kai Properties (SHKP).

That raised the eyebrows of Chief Justice Geoffrey Ma Tao-li, who expressed concern about public reaction to such an ­assessment.

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“It’s an odd thing to say, isn’t it? You have been paid HK$8.5 million,” Ma said, referring to payments Hui pocketed in the days and hours before he was sworn in as Hong Kong’s No 2 official. “You are indebted to someone.”

Hui was jailed in 2014 for 71/2 years for accepting HK$19.7 million in bribes and misconduct in public office.

He shook hands on Tuesday with Kwok just before the start of their two-day appeal hearing to challenge a joint conviction of conspiracy to commit misconduct in public office, involving a payment of HK$8.5 million, which they claimed was outstanding consultancy fees.

Also in the dock were former SHKP executive Thomas Chan Kui-yuen and former stock exchange official Francis Kwan Hung-sang, who are serving six and five years respectively for handling HK$11.18 million as middlemen.

It’s an odd thing to say, isn’t it? You have been paid HK$8.5 million ... You are indebted to someone
Chief Justice Geoffrey Ma Tao-li

Kwok, who is out on bail pending the appeal, said he was a little nervous but putting his fate in the hands of God. “My mind is at peace, and I sleep well. And I hope for the best,” he said.

Prosecutors were unable to establish during the 131-day trial that Hui had in fact committed any particular act as chief secretary to favour SHKP after he pocketed the HK$8.5 million.

But they argued that it was a general sweetener to secure Hui’s favourable disposition towards the company.

At issue is whether Hui’s “favourable disposition” to Kwok was a strong enough criminal ­element by the standards of law.

If successful, Kwok could see an early end to his five-year jail sentence for the offence. But Hui will remain in prison even if his appeal succeeds, as he was also found guilty of four other charges that the top court did not grant him permission to challenge.

Clare Montgomery QC, ­defending Kwok, said prosecutors needed to prove there was a specific act or omission to act, as well as an agreement among parties for him to act that way after pocketing the payments to establish the offence.

Buying Hui’s “good feeling”, as prosecutors have pitched their case, was therefore insufficient to be characterised as a breach of duty unless he had agreed to abuse his office, she continued.

When asked how the public could be sure that he would not have done anything, Montgomery replied: “They can’t. But the test is not what the public thinks.”

She noted that even Hong Kong chief executive candidates received million-dollar donations during campaigns, and suggested the courts could be looking at a whole range of activities that the law did not criminalise if the ­offence was defined too broadly.

The prosecution responds on Wednesday.