Professional Documents
Culture Documents
CACC 444/2014
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COURT OF APPEAL
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JUDGMENT
1. Kwok Ping-Kwong, Thomas, described as the 2nd defendant on the
indictment at trial, seeks leave to appeal against his conviction on 19
December 2014 after trial by Macrae JA and a jury of Count 5, namely
conspiring together and with Rafael Hui, Raymond Kwok, Thomas Chan
and Francis Kwan respectively the 1st, 3rd, 4th and 5th defendants, to
commit misconduct in public office.
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Count 5
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between 1 March 2005 and 30 June 2007 that Rafael Hui, whilst the
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filed with the leave of the court on 14 August 2015 two grounds of appeal
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the offence shall exist at the time when the conduct constituting
the offence is to take place in subsection 159A(2):
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2.1
The Learned Trial Judge erred in the following respects
in his directions to the jury in relation to Count 5:(1) Failing to direct the jury that the Prosecution was
required to prove (a) it was intended and agreed that D1
would carry out a specific act in abuse of power of a
sufficiently serious nature while in public office; (b)
alternatively as a minimum, it was intended and agreed
that D1 would in future, while in public office, when the
opportunity arose, commit at least one identifiable act
that would amount to a serious abuse of power.
(2) Directing the jury that the merits of D1's decisions or
conduct during his tenure as Chief Secretary was
irrelevant.
(3) Failing to summarise adequately or at all the evidence
supporting the defence case that D1 had not committed
any act of favour or breach of duty in respect of D2, D3,
D4 or SHKP and to explain how such evidence might
be relevant to the defence case that D2 had never agreed
or intended that D1 would commit an act of misconduct
The Learned Trial Judge erred in giving a note book
summary of the evidence and failed to assist the Jury
in his summing up when he failed to summarise and
explain the significance of the material evidence with
respect to count 5 on this issue. In particular he failed to
identify the specific relevance of D2s good character to
this aspect of the case.
(4) Directing the jury that it could convict even if no act of
favour was identified as being intended or agreed or
was in fact performed.
(5) Directing the jury that acceptance of money by a public
official in return for him in a general way being
favourably disposed to the persons giving him money
was itself capable of amounting to misconduct without
any direction to the jury as to any of the facts or
circumstances in which this would not amount to
misconduct (for example if there was full disclosure of
the payment) and the need to prove D2s knowledge of
those facts and circumstances before they could convict.
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(7) Failing to direct the jury that it was necessary but not
sufficient for the prosecution to prove that any
misconduct particularized was a breach of duty.
4. Mr Perry, QC, for the respondent, filed with the court on 18 August
2015 written objections to the grant of leave to appeal against conviction
in respect of six of the grounds of appeal advanced by Thomas Chan and
one of the grounds of appeal advanced by Francis Kwan. Apart from
noting that, with the leave of the court, Thomas Kwok had withdrawn
ground 3 of his grounds of appeal against conviction, Mr Perry made no
other reference to the ground of appeal against conviction advanced by
Thomas Kwok. Clearly, Mr Perry does not oppose the grant of leave to
appeal to Thomas Kwok. In those circumstances, the court is able to deal
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conviction of Thomas Kwok involves questions of law only, such that the
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reasonably arguable.
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Conclusion
(Michael Lunn)
Vice-President
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