Hksar v Kwan Francis Hung-sang Also Known As Kwan Francis

CourtCourt of Final Appeal (Hong Kong)
Judgment Date12 Jul 2016
Judgement NumberFAMC11/2016
SubjectMiscellaneous Proceedings (Criminal)
FAMC8/2016 HKSAR v. HUI RAFAEL JUNIOR also known as HUI SI-YAN RAFAEL

FAMC Nos. 8, 9, 10, 11 of 2016

FAMC No. 8 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

____________________

BETWEEN
HKSAR Respondent
and
HUI Rafael Junior also known as
HUI Si-yan Rafael (許仕仁) (D1)
Applicant

____________________

FAMC No. 9 of 2016

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

____________________

BETWEEN
HKSAR Respondent
and
KWOK Ping-kwong Thomas (郭炳江) (D2) Applicant

____________________

FAMC No. 10 of 2016

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

____________________

BETWEEN
HKSAR Respondent
and
CHAN Kui-yuen also known as
Thomas CHAN (陳鉅源) (D4)
Applicant

____________________

FAMC No. 11 of 2016

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 444 OF 2014)

____________________

BETWEEN
HKSAR Respondent
and
KWAN Francis Hung-sang also known as
KWAN Francis (關雄生) (D5)
Applicant

____________________

Appeal Committee: Chief Justice Ma, Mr Justice Fok PJ and Mr Justice Stock NPJ
Date of Hearing and Determination: 12 July 2016

_________________________

D E T E R M I N A T I O N

_________________________


The Appeal Committee :

1. At the conclusion of the hearing of these applications for leave to appeal, we granted leave to appeal to the applicants on one question of law (set out in paragraph 2 below) and, for the reasons which briefly follow, refused leave on the other grounds of application.

2. We granted leave to appeal to each of the applicants[1] in relation to the following question of law of great and general importance involved in their appeals against conviction on Count 5[2] of the amended indictment, namely:

“Whether in the case of a public officer, being or remaining favourably disposed to another person on account of pre-office payments, is sufficient to constitute the conduct element of the offence of misconduct in public office?”

3. We refused leave to appeal on the questions of law sought to be raised (by the respective applicants in FAMC 8/2016 and FAMC 10/2016[3]) in relation to their convictions on Count 7 of the amended indictment.[4] We are not satisfied that it is reasonably arguable that, in respect of a conspiracy to commit the offence under section 4(1) of POBO, the identity of the ultimate offeror of the advantage is an essential element of the offence.

4. We were not satisfied that it...

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