TVB manager Stephen Chan acquitted in re-trial
We reported in previous updates that a private-sector bribery case involving a former executive of the local television station, TVB has been appealed and re-tried. The decision of the re-trial has just been handed down, but it will not be the end of the matter as the Department of Justice immediately filed an appeal on the same day.
By way of background, Stephen Chan Chi-wan was charged with a private-sector bribery offence (s9(1)(a) of the POBO) for allegedly receiving payments to host talk shows while acting as an agent of TVB. Chan was tried and was acquitted at the district court, a decision which was subsequently appealed and unanimously quashed by the Court of Appeal last November. The matter was re-directed to the same trial judge for a re-trial and a decision was handed down on March 7, 2013. After a two-day hearing, the district court again acquitted Chan of all three counts of corruption charges on the basis that he had a "reasonable excuse" defence.
There are three distinct defences an accused may raise to a S9 charge – "lawful authority", "reasonable excuse", or "permission" from the principal. The judge held that S9(1) could encompass a broad range of conduct committed by employees (as agents of their employer principal) even in the absence of improper intentions. Accordingly, it was not the legislative intent for the "reasonable excuse" defence to be construed narrowly. While the "permission" defence does not qualify the operation of the other two defences, why an agent did not obtain "permission" by the principal could be a relevant factor to consider in assessing whether the agent had had a "reasonable excuse". In this case, TVB's acquiescence to Chan's undertaking of the talk shows, together with the historical background and pattern of cooperation between the parties, were, in the judge's opinion, sufficient evidence in support of Chan's defence that he had a "reasonable excuse" to accept payments.
Despite the favourable verdict to Chan, the day after the decision was handed down, the Department of Justice expressed that it did not consider the judge has correctly addressed the evidence and/or the relevant legal principles and had accordingly filed an appeal by way of case stated. It is anticipated that the discussion of the "reasonable excuse" defence will be the center-stage of the appeal.
Kwok brothers plead "not guilty" to corruption charges
We reported in previous updates that the joint chairmen of Sun Hung Kai Properties, Thomas Kwok Ping-kwong and Raymond Kwok Ping-luen, former Chief Secretary Rafael Hui Si-yan, and two others were formally charged by the ICAC in July 2012. Following an amendment of charges in February 2013, the defendants together face a total of eight offences, including three counts of misconduct in public office, three counts of conspiracy to commit misconduct in public office, one count of conspiracy to offer advantages to a public servant in violation of s.4(1)(a) of the POBO and s.159A of the Crimes Ordinance, and one last count for furnishing false information.
On March 8, 2013, the five defendants all pleaded not guilty to the corruption charges and remain to be released on bail. The matter is still in its preliminary procedural phase and no trial dates have yet been fixed.
Former executives of Anglo Starlite Insurance charged with embezzlement & falsification of records
After more than three years' of investigation, the police formally laid charges against four former executives and a secretary of Anglo Starlite Insurance Company Limited (in liquidation). Prior to its liquidation, the company was an insurer engaged in motor insurance business for taxis and goods carrying vehicles.
The defendants were charged with a total of 20 counts of offences, including embezzlement of company property worth of HKD113 million, forgery and falsification of accounts and records, and use of false instruments in the company's submission to the Office of the Commissioner of Insurance in April and May 2009. Two of the defendants are of foreign nationality (Singapore and Indonesia).
The case is adjourned to mid June 2013 to allow the prosecution to obtain evidence in Singapore.
Former chairwoman of Pacific Challenge Holdings appeals fraud conviction over share-option scam
High-profile businesswoman Lily Chiang Lai-lei, who was put in jail in 2011 for her involvement in a share-option scam, appeals her conviction after being released on parole.
Chiang was the former chairwoman of Pacific Challenge Holdings and the first woman to chair the General Chamber of Commerce. She was convicted by the District Court in 2011 for fraud, conspiracy to defraud, and authorising of a prospectus containing false information and was sentenced to 3 ½ years.
The present appeal challenges the trial judge's fact finding concerning the critical course of events that took place at the headquarters of the Bank of China. It was found that 2 minutes and 59 seconds after Chiang's assistant had withdrawn HKD2.5 million cash Chiang took the money to the bank safe. The appellant submitted a floor plan of the bank, fresh evidence, and argued that it was practically impossible for Chiang’s assistant and the bank to handle that large amount of cash in such a short time, that the statement made by Chiang’s assistant was not reliable, and that there was therefore a "fundamental flaw" in the District Court trial judge’s reasoning during the fact-finding exercise. During the appeal, the judge has paid a visit to the relevant bank to inspect the relevant site. No decision has yet been made and the matter is adjourned.
"Warrant King" appeals market manipulation conviction while DoJ seeks review of sentence
Raymond Ng Chun-to, the alleged mastermind of a derivative warrants market manipulation scam involving over HK$103 million, appealed against his and his wife's convictions. The two were sentenced for 4 and 3 years respectively in 2010 on seventeen counts of money laundering, four counts of conspiracy to defraud, one count of perverting the course of justice. At the same time, the Department of Justice considered the penalties too lenient and sought a review of the sentences. Both matters were heard at the same time.
The couple argued in their appeal that they were denied a fair trial. They alleged that ICAC had used improper means to examine witnesses and infringed their privacy in obtaining evidence and the court did not exercise its discretion to disregard those evidences. Relevantly, three former ICAC investigators were convicted in May 2012 for coaching a witness to give false evidence in the couple's case. They were jailed for between 18 and 30 months.
On the other hand, the prosecution took the view that the couple should have received heavier sentences to reflect the gravity of the charges and the large amount of profits involved and has sought a review.
Both decisions have been adjourned.