Court of Appeal concludes that lower court was wrong to absolve Stephen Chan

The top judge of the District Court, who previously acquitted former Television Broadcasting general manager Stephen Chan Chi-wan, was criticized by the Court of Appeal for misinterpreting evidence and almost "destroying" the clear intent of Hong Kong's anti-graft laws.

The Prevention of Bribery Ordinance states that any agent who, without lawful authority or reasonable excuse, accepts any advantage as a reward for acting in relation to his principal's business, commits an offense. He or she is therefore liable to a HK$500,000 fine and seven years in jail.

Chan, on New Year's Eve 2009, appeared as a guest on a countdown show hosted by a shopping mall. At the time, as TVB general manager, Chan was paid HK$112,000 by the mall for his appearance. The show was also broadcast live on TVB channels.

But TVB Chief Executive Mark Lee Po-on testified that he had never been informed of this. Chan and his agent, Edthancy Tseng Pei-kun, were both charged with bribery in 2010.

Chief District Judge Poon Siu-tung in 2011 initially acquitted Chan. This is because Chan was not considered to be an "agent" for TVB while acting as a talk show host. The Court of Appeal dismissed the ruling in 2012. He ordered the District Court to find out in a retrial whether Chan could provide a "reasonable excuse" in order to avoid conviction.

Poon again cleared Chan of the charge in 2013. This was on the grounds that Chan had a "reasonable excuse" in assuming his principal had approved of the paid appearance. It was also not the first time Chan had reported doing other work.

The panel of three judges of the Court of Appeal handed down its second review of the case on Monday. It overturned the acquittal and ordered the District Court judge to convict the pair in a retrial.

The appeal court said Poon made a number of fundamental errors of law when reaching his acquittal decision.

Previous outside paid work by Chan, for instance, bore no relation to the affairs of TVB. Chan had never obtained his supervisor's consent when accepting rewards for work relating to the station's business.

Poon's belief that Lee would agree to Chan's deal with the mall "had no grounds and was erroneous". The conclusions drawn by the District Court judge would not have been reached by any reasonable tribunal, the three judges concluded.

To qualify as a "reasonable excuse", the appeal court said an agent must prove to the court he had done his best to fulfill the statutory requirements of the bribery law. The court would essentially "destroy" the purpose of the law if any court causally tolerated an agent's omission of these important legal steps.

An example of this was given by the higher court - if an employee had always been approved by management that he could be paid for outside work, the agent would very likely be cleared of the bribery charge even if his supervisor rejected a particular application filed later.

Because the Court of Appeal had clarified the doubts about "reasonable excuse", the chief district judge was ordered to convict and sentence Chan and Tseng. The pair was granted bail of HK$100,000 on condition they did not leave Hong Kong. This is because the lower court will hold a hearing on Nov 13.

kahon@chinadailyhk.com

(HK Edition 10/27/2015 page5)