Court of Appeal finds that Personal Impact of Defendant’s Conviction is No Basis for Stay of Execution

On 7 December 2015, the Court of Appeal (“CA”) ordered a District Court Judge to convict Stephen Chan, the General Manager of TVB and his assistant Tseng Pei-kun, following protracted proceedings (case citation). In 2011, Chan and Tseng had been acquitted in the District Court of charges brought under the Prevention of Bribery Ordinance (Cap. 201). The Department of Justice appealed the 2011 acquittal on the grounds that the District Court Judge had not fully set out the evidence which supported the defence of a “reasonable excuse”. That appeal was allowed and the case was remitted back to the District Court Judge to consider the evidence and to decide whether Chan and Tseng had a “reasonable excuse”. The District Court Judge then found the Defendants had a reasonable excuse and acquitted them. The Department of Justice then appealed the second acquittal. On 26 October 2015, the CA reversed the acquittal and found the pair guilty of one of the bribery charges. The Court remitted the case back to the District Court Judge, directing him to convict and sentence the Defendants on that charge. To this end, the Defendants appeared at the District Court on 13 November 2015, but made an application to stay execution of the CA’s order as the Defendants had applied for leave to appeal to the Court of Final Appeal (“CFA”) on a point of law of great and general importance. The District Court Judge adjourned the case to 18 December 2015. On 7 December 2015, Chan applied to the CA to stay its own order that he be convicted and sentenced until he had secured a final decision from the CFA.

The Decision

In refusing a stay of execution, the CA said that the reason the case was remitted to the District Court was to prevent Chan from losing his right of appeal against conviction and sentence. Unless expressly stated by the CA, where a case is remitted to a lower Court with a direction to the trial judge to convict and sentence the defendant, it should be done immediately or as soon as possible. There was no basis for the submission that the CA had not indicated to the District Court Judge to execute the CA’s order within a set time. All convicted defendants will face a certain degree of difficulties. The difficulties faced by defendants will depend on their backgrounds and on occasion may affect the people related to defendants, but Chan’s background, social status, personal wealth and the impact of his conviction and sentence on other people would not affect how the CA deals with matters. Where a sentence may lead to an appeal or review, as something that only may happen, it did not serve as a basis for staying the CA’s order to convict and sentence Chan.

Take Aways

When the CA remits a case back to a lower court with a direction, that direction should be complied with by the lower court as soon as possible. Personal circumstances, or the possibility of an appeal or review, do not affect how the lower court should treat that direction. 

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