Rafael Hui’s “golden fetters” – The CFA in FACC Nos. 12-15 of 2016 affirmed a wide scope to catch misconduct in public office
The former Chief Secretary of the HKSAR, Rafael Hui (“Hui’), lost his appeal against conviction in the Court of Final Appeal. On 14 June 2016, the Court of Final Appeal unanimously rejected and dismissed the appeal.
The case centres on the payments made by the Kwok brothers, Co-Chairmen of Sun Hung Kai Properties Limited (“SHKP”) at the time, though middlemen Thomas Chan and Francis Kwan to Hui immediately before he took office as the Chief Secretary of the HKSAR. It was claimed that payments were part of a verbal agreement supplementing a consulting contract that SHKP had with Mr. Hui in 2003.
On appeal, the key issue was whether such an agreement is capable of answering the description of an agreement which would amount to misconduct in public office. The appellants contended that no relevant act of misconduct was involved and that what was alleged to constitute the intended misconduct was merely a state of mind.
The Court of Final Appeal ruled that the payment was made to secure an ongoing inclination on the part of Hui towards SHKP. The inclination was improper since it was wholly inimical to Hui’s duties as Chief Secretary of the HKSAR and involved a serious abuse of office and abuse of public trust.
Despite the lack of a specific act, by accepting the conspiratorial agreement, Hui had committed a continuing act by placing himself in “golden fetters” and placed himself in a “hopelessly compromised” position from when he entered government office to the end of his term. The Court concluded that the payment was made to secure “favourable disposition” which was sufficient to constitute an act of misconduct in public office, and was clearly therefore a corrupt bargain.
This judgment has sent a clear message to Hong Kong society that the Court maintains a zero tolerance in relation to corrupt conduct by public officials.
The threshold to convict a public officer under the common law offence of misconduct in public office is a much lower threshold than that under the Prevention of Bribery Ordinance (“the POBO”) because the POBO requires proof of specific act. This type of case is always highly fact-sensitive. It very much depends how the evidence is presented to the jury during Trial.
Tsang Yam Kuen, the former Chief Executive, has lodged an appeal against his conviction of misconduct in public office. The impact of the Court of Final Appeal’s judgment on the upcoming appeal remains to be seen. We will keep you informed in due course.
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