Two contractors twice convicted of bribing disgraced former housing official and Canto-pop singer Eason Chan's father Chan Kau-tai walked free yesterday after appeal court judges ruled that the anti-graft agency's method of collecting evidence was unjustified.
The judges also ordered a permanent stay of proceedings against the two appellants, Wong Hung-ki and Yu Chi-wai.
The Court of Appeal's decision was the latest twist in a high-profile bribery case that has landed dozens of corrupt contractors in jail and triggered a review on eavesdropping by law enforcers.
Mr Justice Frank Stock, in explaining the appeal court's decision in January to quash the two defendants' convictions, said Independent Commission Against Corruption officers had clearly infringed legal professional privilege when they taped a conversation between Yu and his lawyer in November 2002.
The conversation formed the central argument in the trial against Wong, Yu and two other accomplices in 2005, and the four dependants had obtained a stay of proceedings on grounds that evidence had been unfairly obtained.
But the ruling was later overthrown in a judicial review lodged by the ICAC, with Mr Justice Michael Hartmann ordering a retrial, saying the original judge had not given the graftbusters a fair chance to defend themselves. His ruling was upheld by both the Court of First Instance and the Court of Final Appeal.
The four defendants again asked for a stay when the case returned to the District Court for retrial, but the application was turned down by Mr Justice Chan Hing-wai.
Yesterday, while acknowledging it was unusual for an appellate court to overturn a judge's decision based on issues of fact, the three Court of Appeal judges said they had made the exception as they found Chan's mistakes very 'striking'.
They included Chan's acceptance of the investigators' claim that they had not expected a lawyer to be present at the meeting they taped, despite a warning. Chan had also ignored the fact that the officers continued to listen to the conversation after they knew a lawyer was present.
Evidence given by the graftbusters also contradicted the prosecutor's admission in the first trial that they knew a lawyer would be present, the appeal court judges said.
The ICAC declined to comment but a person close to the agency said all covert surveillance is now closely monitored by the Commissioner on Interception of Communications and Surveillance.