1. The Appellant was Chief Executive (“CE”) and President of the Executive Council (“ExCo”) and was charged with one offence of bribery and two offences of misconduct in public office arising from the following facts. 2. In late 2009, the Government invited applications for sound broadcasting licenses. In April 2010, four applications were made, one of which was submitted by Wave Media Limited (“WML”), a company of which Mr. Wong Cho-bau (“Wong”) was a major shareholder, and Mr. Arthur Li (“Li”) was another shareholder. In late 2010, WML applied to surrender a previously granted sound broadcasting licence. Between July and November 2011, a further application was made for Li, a legally disqualified person, to exercise control over WML, by then renamed Digital Broadcasting Corporation (“DBC”), as its director and Chairman (collectively the “Applications”). All of the Applications were ultimately approved by the Appellant as CE in Council. There was no evidence of any irregularity in the applications or the administrative process by which they were handled. 3. At the same time, the Appellant was arranging to live in a Shenzhen apartment (the “Property”) owned by a company controlled by Wong (the “Company”). The Appellant claimed that, in early 2010, the proposal was that he or his wife would take a lease of the Property for three years commencing 1 July 2012, the rental amount being the market price of RMB 800,000 per annum, and that renovations would be carried out by the Company at its expense but in accordance with the requirements of the Appellant and his wife. The cost of the refurbishment was to be around HK$3.5 million, with an additional amount of HK$350,000 for the engagement of a well-known interior designer. 4. The Appellant had made declarations of interest on many occasions during his term of office, and was obviously aware of the importance of declaring interests when necessary. He made no declaration of interest to the ExCo regarding the Property. 5. On 20, 21 and 22 February 2012, media reports raised concerns about the Appellant’s integrity in respect of his associations with prominent business people. On 26 February 2012, the Appellant revealed in a radio interview (the “Interview”) his renting of the Property. He explained in the Interview that it did not occur to him a declaration of interest regarding the Property to the ExCo was required, and that such a requirement was “pretty farfetched”. The Independent Commission Against Corruption (“ICAC”) commenced an investigation thereafter. 6. The Applicant was tried in the Court of First Instance before a judge and jury on three counts. The first count was accepting an advantage as CE contrary to s.4(2B)(a) and s.12 of the Prevention of Bribery Ordinance (Cap. 201) (“Count 1”), the essence being that the refurbishment of the Property was a bribe for the Appellant’s handling of the Applications. The second and third counts were two counts of misconduct in public office, contrary to common law and punishable under s.101I(1) of the Criminal Procedure Ordinance (Cap.221) (“Counts 2 and 3”), the essence of Count 2 being primarily the deliberate concealment of the Appellant’s dealings with Wong, with an alternative case of failing to declare or disclose, or concealing the dealings. 7. At his trial, the jury was unable to reach a verdict in respect of Count 1 but the Appellant was convicted on Count 2 and acquitted on Count 3. He was sentenced to a term of imprisonment in respect of his conviction on Count 2. On a subsequent re-trial of Count 1, a second jury was also unable to reach a verdict and Count 1 was no longer in issue. This appeal related solely to Count 2. 8. The Court of Appeal regarded the jury’s guilty verdict on Count 2 as indicating a complete rejection of the Appellant’s explanation given in the Interview for his non-disclosure of the Property to the ExCo. The Appellant’s appeal against his conviction was dismissed. He was granted leave to bring a further appeal to the Court of Final Appeal. ISSUES 9. The primary prosecution case was that the Appellant’s dealings with Wong were corrupt, and that they were deliberately concealed in order to hide that corruption. If that case had been accepted, there would have been a conviction on Count 1, and a conviction on Count 2 would have been almost inevitable. The jury was however unable to reach a verdict on this primary case. 10. The alternative prosecution case on Count 2 proceeded on the basis that the dealings between the appellant and Wong were not proven to be corrupt, and simply relied on the Appellant’s non-disclosure of his dealings with Wong. Under this alternative case, issues regarding wilfulness and seriousness of the non-disclosure became prominent in relation to the offence of misconduct in public office. The central question in this appeal was therefore whether the jury was appropriately guided on how to approach these elements of wilful misconduct and seriousness. 11. In his summing up to the jury, the trial judge said on the issue of wilfulness that “wilfully” in this context meant “deliberately”, rather than by accident and inadvertence or oversight. On the issue of seriousness, the trial judge said that it had to be “serious, not trivial”, and that the jury should assess this by considering the responsibilities of the Appellant and the office, and the extent of departure from such responsibilities. 12. In the circumstances of the present case, the trial judge’s direction on the issue of wilfulness was inadequate. A decision-maker’s failure to disclose an interest in the subject matter of the decision might be deliberate in the sense that he considered disclosure and decided against it, but not wilful because he did not know or believe there was an obligation to disclose in the circumstances of the case, and did not disregard the risk of there being such an obligation. A conscious but erroneous decision not to disclose was not the same as a wilful failure to disclose, or concealment. On the prosecution’s alternative non-corrupt case, there was a viable issue on the element of wilfulness, and it was not explained to the jury in the judge’s direction on wilfulness. The jury’s guilty verdict on Count 2 could not simply be regarded as a total rejection of the Appellant’s explanation given in the Interview for the non-disclosure such that the judge’s inadequate direction on wilfulness could be treated as immaterial. 13. The trial judge’s direction on the issue of seriousness was also inadequate. If the primary prosecution case of corruption was accepted by the jury, corruption as the motive for concealment would have been established and the element of seriousness would have required little elaboration. In the present case, since corruption had not been established, an evaluation of the nature and extent of the Appellant’s departure from his responsibilities and the seriousness of possible consequences required consideration of the motives behind his omission, what he was required to disclose, and the consequences of non-disclosure, none of which were properly analysed. DISPOSITION 14. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction and sentence quashed. 15. As the Appellant had already served his sentence for the same offence for which he could now be re-tried, the interests of justice did not require a new trial, and so no order was made for a re-trial of Count 2.