Married ex-Hong Kong official appeals against misconduct conviction over property payment from businesswoman, who was also his lover
- Wilson Fung was jailed last year for misconduct in public office after not telling the government about his dealings with Cheyenne Chan
- His lawyer says trial judge was ‘plainly wrong’ to find that Fung – who handled Chan’s aviation-related applications while in office – knew of her business interests
A married former Hong Kong official who served nine months in prison for failing to declare a payment from his lover while he was still in government handling her business applications has returned to court to challenge his misconduct conviction.
The high-profile case centred on Chan settling an initial HK$510,000 (US$65,000) deposit on a Mid-Levels flat bought by Fung in 2004, while he was deputy secretary for economic development and labour handling aviation-related applications from her companies, Helicopters Hong Kong, HK Express and Heli Express.
In defence, Fung revealed a 13-year love affair with Chan that stole the spotlight but said he did not know she was a shareholder or director to those companies. On introspect, he conceded there was a potential conflict of interest, which he did not declare to the government.
The District Court found the payment could simply be part of property dealings between lovers and acquitted the pair of bribery charges, but ruled that Fung was guilty of misconduct by failing to declare an obvious conflict of interest.
On Thursday, defence counsel Joseph Tse Wah-yuen SC argued at the Court of Appeal that the trial judge was “plainly wrong” in finding that Fung must have known about Chan’s business identity when he accepted the payment for buying the apartment in September 2004.
Tse also argued that mere acceptance of benefit and the subsequent non-disclosure were not enough to establish misconduct, as prosecutors must also prove impropriety not involving corruption, given its failure to prove bribery.
“Why was it improper for the appellant to accept this HK$510,000?” he continued. “The prosecution has to explain it and they didn’t.”
His arguments were based on the Court of Final Appeal’s reasons for quashing the misconduct conviction of former Hong Kong leader Donald Tsang Yam-kuen, over his dealings with a mainland Chinese businessman in connection with his retirement property.
But Mr Justice Derek Pang Wai-cheong observed that the top court never said there must be a corrupt benefit underpinning the charge. The appeal judges had only raised the point because Tsang’s prosecution case had not been clear enough, unlike the present one, where prosecutors had adequately identified the particulars of Fung’s wilful and deliberate misconduct, Pang added.
Court of Appeal vice-president Mr Justice Wally Yeung Chun-kuen also observed that the judgment did not introduce any new principles.
Yeung said there was nothing wrong with an intimate girlfriend giving money, but “any reasonable person” would find the conduct improper when the recipient was the holder of an important public office handling applications from companies owned by the giver.
“Don’t you think there’s a problem?” the judge continued. “Everyone knows the answer.”
Tse said: “There could be problems for a civil servant.”
“Are you serious?” Yeung immediately replied.
The counsel said it was a legal question. Yeung, however, countered: “The law is about reason and common sense.”
Madam Justice Anthea Pang Po-kam added that the payment would sound alarms even if Chan were simply an accountant within the company, given the business connection.
Prosecutor Maggie Wong Pui-kei SC said the judge had studied Fung on the witness stand and carefully analysed all of the evidence to conclude that he knew about Chan’s identity at the material time.
Wong also pointed out that Fung had continued handling Chan’s company applications after May 25, 2005 which was the time he claimed to have finally realised her role. Tse conceded that his client had an ongoing duty of disclosure.
The three judges will give their ruling at a later date.
