Neither identity nor individual's intention should be examined in such case: Prosecutor

Former TVB executive Stephen Chan Chi-wan returned to court on Tuesday to face a prosecution petition to the Court of Appeal on a 2011 lower court decision that threw out charges of corruption and fraud against Chan. The prosecution is disputing legal interpretations made at the first trial.

The high-profile case focused on circumstances surrounding a New Year's countdown show produced by TVB on New Year's Eve, 2009. Chan, who served as general manager of TVB at the time, was paid HK$112,000 directly by the event's sponsor to appear in his familiar role as talk show host.

Payment for the appearance was made to a company controlled by Chan's former assistant Edthancy Tseng Pei-kun. Chan's supervisor, TVB Group General Manager Mark Lee Po-on, testified at the trial, saying that Chan's payment for the appearance was neither vetted by the company, nor approved by it.

Despite Lee's testimony, District Court Judge Poon Siu-tung acquitted Chan and his two co-defendants on all charges.

In the appeal before the Court of Appeal on Tuesday, the prosecution submitted nine questions disputing the interpretation of laws and the evidence presented at the original trial.

The prosecution contended, the lower court erroneously concluded that an implied acquiescence from TVB management about the payment to Chan had satisfied a permission expressly defined in article 9(5) of the Prevention of Bribery Ordinance.

Vice president of the Court of Appeal, Justice Wally Yeung Chun-kuen, said at the hearing that the lower court's conclusion appeared "not very correct" to him. Counsel appearing for Chan, Joseph Tse Wah-yuen, acknowledged the error.

Tse stood by his submission at the lower court trial, in which he argued Chan's "state of mind" should be considered. Chan accepted the contract to host the New Year's show as a "celebrity", and not as an executive of TVB. Tse argued that Chan had no "state of mind" under which accepting the offer would appear to him to affect the affairs of TVB.

That point was accepted by the lower court, but the prosecution contended that neither the identity, nor the intention of the individual should be examined at the trial, in consideration of a case involving corrupt transactions and agents.

Eric Kwok Tung-ming, senior counsel acting for the Department of Justice, said the "desirably wide" definition was intended by lawmakers to prevent agents from receiving advantages not granted to the principal.

The "state of mind" argument came under tough questions from the Court of Appeal panel of judges.

Peter Cheung Chak-yau pointed out that Chan had sometimes asked permission of management for individual performances, demonstrated that Chan was aware that consent of his employer was necessary, prior to his acceptance of moonlighting jobs.

Justice Yeung said, since no one knows what was going through Chan's mind at the time, it was up to the judges to determine what his "state of mind" may have been, based on the available evidence and on legal principles. "What we have to consider now is whether the judge at the first trial was correct in this deduction," Yeung stated.

Four final questions were raised about the lower court's acceptance that there were reasonable grounds for Chan to bypass company management and accept the freelance job. The conclusion that "there was no reason for TVB naively to believe that Stephen Chan was not paid" for the appearance was not backed by evidence, the prosecution argued.

Tse, the defense counsel came in for sharp criticism from Justice Yeung, after Tse suggested that Stephen Chan could also be "reasonably excused" for the alleged crime if he believed accepting payment would be good for TVB.

"That thinking is very dangerous. You better think it through," Yeung lectured the counsel before adjournment on Tuesday. Tse's submission continues on Wednesday, but the court suggested that a judgment would be handed down later due to the complexity of the case.

Stephen Chan had left TVB last December and assumed his new role as chief executive officer at Commercial Radio earlier this year.

kahon@chinadailyhk.com

(HK Edition 11/07/2012 page1)