04 November, 2015
On 26 October, the Court of Appeal handed down its long-awaited judgment regarding bribery charges against former TVB general manager and TV presenter, Stephen Chan and his assistant, Tseng Pei-kun. The men had twice been acquitted but now face jail terms when sentenced next month.
The judgment confirms the limited practical application of the "reasonable excuse" defence in the context of bribery offences. It also highlights the grave consequences that may flow from relatively small benefits when they are legally construed as unlawful advantages.
The case is relevant both to employers and employees, especially employees who have frequent dealings with third parties. Employees should ensure that they seek consent from employers when receiving payment or other benefits, and comply with their employer's reporting policies. Employers should in turn take care to provide clear disclosure guidelines and training to employees as to when reporting is required.
Background
Chan and Tseng were alleged to have acted contrary to section 9 of the Prevention of Bribery Ordinance (Cap. 201) (POBO) when Chan accepted HKD 112,000 from Olympian City, a shopping centre in Hong Kong, to appear on a live TV programme on 31 December 2009 broadcast by TVB. Both were tried and acquitted in September 2011 on three counts of bribery and two counts of conspiracy to defraud, on the basis that TVB had given Chan implied consent and he therefore had reasonable excuse to accept the payment.
After the acquittal, Hong Kong's Department of Justice (DOJ) appealed concerning the three bribery charges. The DOJ's appeal was allowed in November 2012, and the Court of Appeal remitted the case back to the District Court for a second trial. The same trial judge acquitted Chan and Tseng in March 2013, based on the reasoning of his first judgment.
Second Appeal
This judgment concerns the DOJ's second appeal on the three bribery charges. The DOJ's appeal was again based on the reasoning that Chan had no reasonable excuse to accept the payment from Olympian City for his appearance in 2009 without notifying TVB. The DOJ argued that despite the fact that TVB was aware of and actively participated in the production of the programme, it did not follow that TVB would have consented to Chan accepting the payment from Olympian City.
Chan's counsel argued that he had implied consent from TVB as he had accepted external engagements before without reporting to TVB, which did not result in criminal prosecution. However, the Court of Appeal said this argument failed to distinguish between Chan's external engagements not connected with the business of his employer and those (like this) which were. His appearance at Olympian City was clearly connected with the business of TVB. This was governed by strict reporting policies which Chan failed to comply with.
The Court of Appeal ruled unanimously that the previous acquittals had no legal or factual basis and ordered the trial judge to convict Chan and Tseng on a joint charge of conspiracy of an agent to accept an advantage, contrary to section 9(1)(a).
Analysis
The judgment provides practical insights as to how the defence of reasonable excuse will be treated in relation to POBO offences:
- The prosecution has no duty to prove that a defendant had no reasonable excuse in doing what he did. Should the defence be raised, the burden of proof rests firmly with the defendant and the standard of proof is on the balance of probabilities;
- Whether a defendant can rely on reasonable excuse can only be determined on a case-by-case basis and will vary depending on particular facts and circumstances;
- Courts generally take a fairly limited view of what constitutes a reasonable excuse when considering whether consent has been obtained by an employee to accept payment or other benefits from someone other than his employer; and
- Courts will take into account whether the employer's internal policies and reporting duties have been complied with when determining the question of reasonable excuse.
A copy of the judgment (available only in Chinese) is available here.
For further information, please contact:
Justin D’Agostino, Partner, Herbert Smith Freehills
