Client Update
22 February 2016
2
The appellants’ case relied on different forms of the argument that “remaining
favourably disposed” to someone was a state of mind, rather than an act of
misconduct. As a result, they argued, a case of misconduct in public office (or
conspiracy to commit the same) could not be made out in the absence of proof of
a specific act of misconduct (or agreement to commit such an act). The court of
appeal rejected these arguments, holding that the concept of corruption by a
payment as a “general sweetener” was sufficient, without more, to prove
misconduct in public office. After the payment, “[Hui] had been sweetened; his
goodwill had been bought.
That is the abuse of office.”6 Or, in the words of Vice
President Yeung, “having received $8.5 million from SHKP, Rafael had
completely destroyed the duty of loyalty he owed HKSAR Government and the
people of Hong Kong…”7
The facts of the Hui case are quite stark and the judgment does not provide clear
guidance as to when an advantage short of $8.5 million should be considered a
“general sweetener” sufficient to prove misconduct in public office or bribery.
However, Vice President Lunn’s judgment drew on a number of bribery cases,
and serves as a reminder that it is possible to make a case for bribery without
evidence of a specific quid pro quo. As long ago as 1978, Leonard, J in the court of
appeal stated that “I would regard being or remaining favourably disposed to the
person solicited as sufficient to amount to an ‘act’ within the meaning of
[Section 4 of POBO].”8 The same is true for commercial bribery under Section 9.
The prosecution in the Hui case and Vice President Lunn9 referred to the Section
9 case Li Defan & Another v. HKSAR,10 in which the prosecution offered no
evidence as to why the money was paid, but the appeal was dismissed as it was
permissible to infer an improper act because “people do not usually pay large
sums of money to business acquaintances without expecting something in
return.”
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Please do not hesitate to contact us with any questions.
6
7
Id.
at ¶ 35.
8
Attorney General v. Chung Fat-Ming [1978] HKLR 480, 497.
9
HKSAR v. Hui at ¶ 225.
10
www.debevoise.com
Id.
at ¶ 226.
(2002) 5 HKCFAR 320, 335 (Lord Hoffman, NPJ).
.