19 February, 2016
Hong Kong property tycoon Thomas Kwok and ex-deputy leader Rafael Hui saw their appeals against conviction and sentence dismissed today before the Hong Kong Court of Appeal. In a detailed judgment, the Court of Appeal unanimously rejected the appeals brought by Kwok, Hui and two others. The judgment confirms the well-established principle that benefits offered to develop or retain goodwill may also fall foul of Hong Kong’s bribery laws.
Hui is the highest-ranking official in Hong Kong’s history to be found guilty of taking bribes. He was convicted in late 2014 of misconduct in public office and conspiracy and jailed for seven and a half years. Kwok was found guilty of conspiracy to commit misconduct in public office (ie, bribing an official) and sentenced to five years. Francis Kwan and Thomas Chan were sentenced to five and six years respectively for acting as middlemen for the payments.
Appeal
Lawyers for the defendants sought to appeal the technical elements required to establish conspiracy. They also argued that no specific advantage was received by Kwok in return for the payments to Hui. The Court of Appeal held that …”consonant with the concept of corruption by a payment as a ‘general sweetener’, it was not necessary for the prosecution to aver or prove that the conspirators agreed or intended that Rafael Hui would commit a specific act of serious misconduct.” In the appeal court’s view, the prosecution had shown that Hui’s goodwill had been brought through the sweetening process, leaving Hui vulnerable to corrupt demands.
Next steps
Hui, Kwok, Kwan and Chan will continue to serve out their sentences in the maximum security Stanley Prison. Kwok is understood to be lodging an appeal with the Court of Final Appeal. The other defendants have not indicated whether they will further appeal today’s findings.
Comment
Legally, the outcome of this appeal confirms that bribery is not limited to circumstances where a benefit is offered in return for a specific quid pro quo involving the recipient of the advantage giving or doing something in return.
Policy-wise, this judgment again demonstrates the willingness of the ICAC, the Department of Justice and the Hong Kong courts to prosecute and convict Hong Kong’s wealthiest and most senior ranking individuals. This forms part of a broader ‘no tolerance’ approach, entrenching Hong Kong’s reputation as a low-corruption jurisdiction.
For further information, please contact:
Kyle Wombolt, Partner, Herbert Smith Freehills
kyle.wombolt@hsf.com
