The case HKSAR v Wilson Fung Wing-yip & Cheyenne Chan Ung-iok  HKDC 1113 has caught much media attention. The unsuccessful prosecution on the defendants’ bribery charges raises the question of whether a romantic relationship can ever be used as a shield to defend a couple from bribery charges.
On 28 September 2004, Ms Cheyenne Chan (“Chan”), director and shareholder of 3 aviation companies including Helicopters Hong Kong, Hong Kong Express Airways and Heli Express, bought a flat. Chan paid an initial deposit of HK$510,000 but named Mr Wilson Fung (“Fung”), her secret lover, as the property purchaser and signed the provisional agreement for sale and purchase on Fung’s behalf.
Fung, who was the Deputy Secretary for Economic Development and Labour Bureau between April 2003 and July 2006 responsible for sensitive decisions on valuable air traffic rights and other aviation-related policies, approved an application by Hong Kong Express Airways to operate flights from Hong Kong to Guangzhou and Shenzhen on 9 December 2004 without making any disclosure of his relationship with Chan and the joint property purchase with Chan.
Fung faced two charges: (1) public servant accepting an advantage, contrary to Section 4(2)(a) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”), and (2) misconduct in public office, contrary to Common Law. Chan also faced one charge of offering an advantage to a public servant, contrary to Section 4(1)(a) of the POBO.
The District Court found Fung guilty of misconduct in public office for failing to declare an obvious conflict of interest and was sentenced to 9 months’ imprisonment. The Judge, however, acquitted Fung of charge (1) and found Chan not guilty of offering an advantage to a public servant.
Analysis of the Decision
S.4(2) of the POBO provides that a public servant (including a government servant) commits an offence if he, without lawful authority or reasonable excuse, accepts an advantage as an inducement to or reward for doing or not doing something in his capacity as a public servant. Any person who offers the advantage will also commit an offence under s.4(1) of the POBO.
Prima facie, this looks like a POBO section 4 offence concerning private dealings between a senior Hong Kong official and a Macau businesswoman, where property has been transferred in exchange for routes and air traffic rights, rent reduction and expansion of landing sites. However, upon scrutiny of the case, it is not difficult to discover that the love element between Fung and Chan did play a part in leading the Judge to rule in Fung and Chan’s favour.
The relationship between Fung and Chan, as described by District Judge Douglas Yau Tak-hong, was “as genuine as husband and wife”, and Chan had always been grateful to Fung for assisting her in the negotiation of house prices and arranging commission discount. It was not an impossible inference that Chan made an agreement with Fung to offset the HK$510,000 initial deposit with profits Fung helped Chan earn from another property transaction.
Against this background, it became difficult for the prosecution to prove beyond a reasonable doubt that the only rational inference of Chan offering HK$510,000 to Fung was to maintain a good relationship with Fung in his capacity as a public servant. Since there exists a possible inference that the offset of HK$510,000 could be a couple’s investment decision, the inference more favourable to Fung and Chan has to be drawn, and this constitutes the main reason why Fung and Chan were acquitted from the bribery charges.
Concerning the accusation of misconduct in public office against Fung, the evidence in support of his guilt is more straightforward. The acceptance of HK$510,000, the non-disclosure, the failure to declare an obvious conflict of interest all points to serious misconducts of Fung as a public servant. The Judge was of the view that it was impossible for Fung not to know or understand the conflict of interests in his private dealings with Chan. While Fung and Chan are cleared of bribery, the misconduct verdict sent Fung to jail for a period of 9 months.
The romance relationship between Fung and Chan in itself is not a defence to a bribery crime. Yet, the existence of this affair serves to justify a possible inference that the offer of HK$510,000 could be a couple’s private investment decision instead of a sweetener inducing Fung to approve an application favourable to Chan. Given that the presumption of innocence imposes on the prosecution the burden of proving the charges and guarantee no guilt can be presumed until the charge has been proved beyond a reasonable doubt, this alternative inference gives Fung and Chan the benefit of doubt, thereby leading to the acquittal of their bribery charges.
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This article was originally published on ONC Lawyers.
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