Impacting a company or not, secret commissions can be a crime: Judge

Court of Appeal judges on Wednesday agreed with arguments by the Department of Justice that intent and the effects of one's behavior are not key elements in the determination of whether there has been commission of a crime under the Prevention of Bribery Ordinance. The court heard on the second day of the prosecution's appeal, in the case involving ex-TVB executive Stephen Chan Chi-wan.

Chan and his former assistant, Edthancy Tseng Pei-kun, are accused of corruption and fraud in connection with a New Year's Eve countdown show at the Olympian City Shopping Mall, for which Chan received payment without the knowledge of TVB. Chan and Tseng were acquitted on all charges in September 2011. Chan had received HK$112,000 payment to host his well-known TVB talk show, Be My Guest, during the countdown in the mall. Payment for Chan's appearance was made to a company controlled by Tseng.

Counsel for Tseng argued that, in order to prove Chan guilty, the prosecutor should prove that Chan attended the show as the general manager of TVB, thus the show would fall within the scope of the company's business. In addition, he contended, the prosecution should also prove that Chan's behavior caused "negative impact" on the company.

Justice Peter Cheung Chak-yau questioned the defence counsel's argument, asking if the actions presented no "negative impact" on the company could it then not be called a criminal offense?

In line with the submission of the Department of Justice on Tuesday, Cheung contended that the legislative intent of the Prevention of Bribery Ordinance is to deter employees from taking secret commissions. Thus, no matter whether the related behavior incurred any impact on the company, the matter still could constitute a crime.

Continuing his submission on Wednesday, Joseph Tse Wah-yuen, representing Chan, stuck to his original arguments despite sharp criticism from Justice Yeung Chun-kuen, Vice-president of the Court of Appeal on Tuesday.

Tse said Chan had done many jobs outside TVB, of which the company was not unaware and no objection was ever raised. Tse continued that Chan attended the talk show and was paid as a "celebrity". Also, Chan's contract, though it forbade him from moonlighting, changed after he took the job.

Tse reiterated that an implied acquiescence from TVB management should be considered as a reasonable defence. Tse said the organizer, Olympian City, hired guests to appear on the show. Tse then cited the fact that Chan and the other artist Wayne Lai Yiu-cheung from TVB both wore tags bearing the name of the shopping mall while other artists on the stage that night wore no such tags. That, argued Tse, proved that TVB, which broadcast the show live, knew what was happening.

Both sides agreed on Wednesday that the Court of Appeal could return the case to the lower court for a retrial, if the higher court finds that the original judgment was erroneous. The prosecution's appeal petition originally sought a direct ruling from the Court of Appeal.

The case has been adjourned pending judgment.

Chan left TVB last December after his acquittal and joined Commercial Radio as chief executive officer earlier this year.

stushadow@chinadailyhk.com

(HK Edition 11/08/2012 page1)