Rafael Hui case: Hong Kong Court of Final Appeal judgment in brief
Case centred on joint count of conspiracy to commit misconduct in public office
The Hong Kong Court of Final Appeal was asked in May in a high-profile corruption appeal to quash the convictions of four defendants – former joint chairman of Sun Hung Kai Properties Thomas Kwok Ping-kwong, former government chief secretary Rafael Hui Si-yan, former Sun Hung Kai executive director Thomas Chan Kui-yuen and former stock exchange official Francis Kwan Hung-sang.
The appeal centred on one of the charges, a joint count of conspiracy to commit misconduct in public office, concerning HK$8.5 million Kwok offered to Hui shortly before he took office in 2005 through Chan and Kwan.
The prosecutors, during a 131-day trial in 2014, were never able to established anything specific Hui did in favour of Sun Hung Kai. Instead, they argued the HK$8.5 million was a sweetener to secure his favourable disposition towards the company.
Five top judges were asked to decide whether this “favourable disposition” was a strong enough criminal element by the standards of law.
The five justices dismissed the appeal unanimously on Wednesday.
EXCERPTS OF THE JUDGMENT IN BRIEF
The court considered the law on misconduct in public office and bribery in Hong Kong. Ever since the first Hong Kong legislation on bribery in 1898, the essence of an advantage being corrupt was its tendency to obtain improper influence or secure a disloyal inclination. Subsequent legislative development has widened the anti-corruption net without abandoning this concept.
A broad range of different acts and omissions can constitute the conduct element of the common law offence of misconduct in public office. There must however be a relationship between the act or omission constituting misconduct and the public office. The essence of the offence is the abuse of public trust by the officer. The misconduct must be serious, not trivial, having regard to the responsibilities of the office and the office holder.
The appellants were charged with conspiracy to commit misconduct in public office. It was therefore necessary to focus on the character of the conspiratorial agreement alleged by the prosecution.
As the chief secretary, Rafael Hui Si-yan was the second most senior officer in the Hong Kong government. 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 Sun Hung Kai had substantial interests. He was also a principal official and hence subject to government regulations relating to conduct and conflict of interest.
The conspiratorial agreement concerned Hui being paid HK$8.5 million in return for his favourable disposition while in the office of chief secretary. This bargain was therefore clearly corrupt. Its purpose was to cause the anticipated chief secretary to be inclined to show favour to the other conspirators’ interests.
Analysed in this way, the conspiracy alleged was an agreement under which, in return for a substantial payment of money, Hui would incline himself in a manner consistent with his duty as a public officer. This improper inclination was wholly inimical to his duties as chief secretary and involved a serious abuse of office and public trust.
The abuse of public trust contemplated by the conspirators was clear and, by agreeing to replace himself in such a compromised state, Hui made an agreement which contemplated a continuing act of misconduct whilst he was chief secretary. 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 the payment was made. That payment was made to secure an ongoing inclination on the part of Hui towards Sun Hung Kai once as chief secretary 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 misconduct in public office.
The appeals were accordingly dismissed.