Former TVB executive Stephen Chan Chi-wan will face a second trial, after the Court of Appeal overturned a lower court's ruling that acquitted him of corruption charges.

Three judges of the appeal court concluded unanimously on Wednesday that the District Court erred in its identification and differentiation of factors that constituted the alleged offense.

The lower court will carry out a retrial under the points of law rectified by the judgment handed down by the Court of Appeal. Chan, again listed as a criminal suspect, was freed on HK$100,000 bail.

The drama began when the former TVB general manager (GM) appeared in the role of talk show host on a countdown to midnight show produced by the broadcaster on New Year's Eve, 2009.

Without the knowledge of his employer, Chan accepted remuneration of HK$112,000 from the event's sponsor. His payment was channeled through a company controlled by Chan's assistant at the time, Edthancy Tseng Pei-kun.

Chan and Tseng were arrested in 2010 on charges of accepting a reward for an act related to his principal affairs. The District Court acquitted the pair after a 2011 trial.

The prosecution sought an appeal, raising nine questions on points of law adopted by the lower court. The judgment handed down by the Court of Appeal on Wednesday, found many of the prosecutions' arguments- unfavorable to Stephen Chan - have sufficient standing to merit a retrial.

The lower court had concluded that Chan's appearance on the show should not have affected TVB's affairs, because it was not a contractual obligation for Chan to host the segment, and Chan held no intention to "aim at" the affairs of the broadcaster.

But the Court of Appeal ruled the finding that Chan's activities should not have affected the affairs of his employer had been too narrowly understood. The appeal court found that if Chan had refused to take part in the show, the broadcaster might have suffered from an incomplete rundown, lower ratings and a damaged relationship with the sponsoring organization.

Through an understanding of the circumstances, the judgment stated, "any reasonable person will inevitably conclude" that Chan's appearance was in relation to and affected the business of TVB. And the bribery law needs not prove the presence of an intention for Chan to "aim at" the principal.

As it was agreed by all sides at the hearing, the Court of Appeal concluded that the lower court had found erroneously that "implied acquiescence" is a form of permission, expressly described in the law. There was thus no ground for Chan to rely on the defence of legal authority.

But the Court of Appeal was unable to draw any conclusion on whether Chan had the reasonable excuse to accept the reward. Chan had not depended upon "reasonable excuses" to defend himself in the first trial, but his defense lawyers claimed the defense was raised in the closing submissions. The lower court also suggested grounds in the ruling to justify such excuses.

But the Court of Appeal did point out that it appeared that the lower court had not considered testimony of the broadcaster's representative when it came up with the suggestion over "reasonable excuses".

The District Court will hold a retrial on December 18.

kahon@chinadailyhk.com

(HK Edition 11/22/2012 page1)