“Advantage” in Dispute

Mr Gordon Chan was the sole advocate in seeking leave to appeal against the conviction of a public servant conspiring to solicit advantage. The single judge reserved this case for the full bench of the Court of Appeal.

The dean and programme director of a tertiary education institution were convicted of “conspiracy to solicit advantage as a public servant”.

In CACC 178/2022, Mr Gordon Chan, acting for the programme director in seeking leave to appeal, raised two grounds of appeal. The first ground challenges the alleged conspiracy agreement in the indictment, while the second ground questions the definition of “advantage” under the Prevention of Bribery Ordinance (Cap 201).

The first ground concerns the inconsistency between the alleged conspiracy agreement in the indictment and the judge’s finding. In essence, while the indictment alleged a specific agreement, the judge had found a wider agreement.

The second ground concerns the definition of “advantage” under the Prevention of Bribery Ordinance, arguing that the “advantage” in the charge is not prohibited and thus it is not an offence known to law. This is an interesting ground. If it succeeds, it means that the charges faced by both defendants were not criminal offences to begin with.

As the leave application was heard before a single judge, Mr Justice Pang JA reserved both grounds for arguing before the full bench of the Court of Appeal.

It is hoped that this appeal could clarify the scope of “advantage” under the POBO.

“Advantage” in Dispute
Gordon Chan avatar
Gordon Chan, Esq

Barrister of the High Court of Hong Kong. Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.

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