HKSAR v. LUK KIN PETER JOSEPH AND ANOTHER

FAMC Nos 68, 69 of 2015 & 15 of 2016

FAMC No 68 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 68 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

____________________

BETWEEN

HKSAR Respondent
and
LUK KIN PETER JOSEPH (陸健) Applicant
(1st Defendant)

____________________

FAMC No 69 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 69 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

____________________

BETWEEN

HKSAR Respondent
and
YU OI KEE (余藹琪) Applicant
(2nd Defendant)

____________________

FAMC No 15 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 15 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO 283 OF 2014)

____________________

BETWEEN

HKSAR Applicant
and
LUK KIN PETER JOSEPH(陸健) 1st Respondent
YU OI KEE (余藹琪) 2nd Respondent

____________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Tang PJ

Date of Hearing: 19 May 2016

Date of Determination: 19 May 2016

________________________

DETERMINATION

________________________

Chief Justice Ma:

1. Leave is given for all three applications, on the following questions: –

(1) What is the meaning of “agent” for the purposes of s.9 of the Prevention of Bribery Ordinance, Cap. 201 (“the POBO”) and specifically whether a person who is under no legal, contractual or fiduciary obligation to act inrelation to the affairs or business of another is that person’s “agent” for the purposes of s.9?

(2) Whether the words “or other document” in s.9(3) of the POBO are to be construed ejusdem generis with the words which precede them and specifically whether board minutes are documents which come under this definition?

(3) Whether or not the common law principle as espoused in R v McDonnell [1966] QB 233 and Attorney-General’s Reference (No. 2 of 1982) 1 QB 624, in the context of the offence of conspiracy to defraud or theft, namely, the principle that the mind and will of the sole director(s)are treated in law as the mind and will of the limited company, applies in the context of the statutory anti-corruption regime underthe POBO and, in particular, to the offence of conspiracy for agents to use a document with intent to deceive their principal, contraryto sections 9(3) and 12(1) of the POBO and sections 159A and 159C of the Crimes Ordinance, Cap. 200?

2. These appeals will be listed for hearing on 23 November 2016.

(Geoffrey Ma)
Chief Justice
(R A V Ribeiro)
Permanent Judge
(Robert Tang)
Permanent Judge

Mr Edwin Choy and Mr Joe Chan, instructed by V. Hau & Chow, for the 1st Defendant (Applicant in FAMC 68/2015)

Mr Gerard McCoy SC leading Mr Albert N.B. Wong in FAMC 69/2015, and leading Ms Nisha Mohamed in FAMC 15/2016, instructed by Leung& Lau, for the 2nd Defendant (Applicant in FAMC 69/2015)

Mr William Tam SC, DDPP, and Ms Samantha Chiu, SPP, of the Department of Justice, for the HKSAR (Applicant in FAMC 15/2016)