HKSAR v. So Ping Chi

CACC 186/2016

[2018] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2016

(ON APPEAL FROM DCCC 338 OF 2015)

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Before: Hon McWalters JA in Court

Date of Hearing: 13 December 2017

Date of Judgment: 13 December 2017

Date of Reasons for Judgment: 15 February 2018

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REASONS FOR JUDGMENT

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1.The applicant was charged with one charge of “Misconduct in public office”, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221.

2.He was tried before District Judge Douglas Yau (“the judge”) and on 7 June 2016 was convicted of this charge.  On 21 June 2016 he was sentenced by the judge to a period of 16 months’ imprisonment. 

3.He subsequently applied for leave to appeal against both his conviction and his sentence.  Before the hearing of these applications he applied for bail pending appeal and on 11 November 2016 I granted that application and ordered that the applicant be released on bail. 

4.His applications for leave to appeal then came before me.  The application for leave to appeal his sentence was not opposed, given that I had earlier been persuaded to release the applicant on bail.  I granted the applicantleave to appeal his sentence 

5.On the hearing of the application for leave to appeal his conviction I granted the applicant leave to appeal in respect of only his grounds 4, 7, 8, and 9 of his Amended Perfected Grounds of Appeal and said that I would later hand down my reasons for doing so.  These are my reasons.  

The trial

6.The background to the offence is fully set out in my Reasons for Decision dated 11 November 2016 granting the applicant bail pending appeal. I shall not repeat in any detail the basis of the prosecution and the contents of the judge’s Reasons for Verdict.  Essentially the prosecution case was that the applicant misconducted himself by deliberately continuing a policy, not initiated by him, of not enforcing legislation relating to the requirements imposed on vessel owners in respect of the lifejackets they must carry on their vessels.

7.The judge found as a fact that the applicant had misconducted himself in the way alleged by the prosecution and he then had to decide whether these actions of the applicant constituted the offence of misconduct in public office.  In this respect he directed himself on the legal principles to be derived from a number of decisions of the Court of Final Appeal on this offence. 

8.Before convicting the applicant, the judge addressed the element of the offence of the seriousness of the misconduct. He found that the applicant’s departure from his duty to enforce the law was not merely negligent but “amounted to an affront to the standing of the public office held.”[1] The judge said:

“The seriousness of the defendant’s misconduct lies in his decision to disregard the will of the legislature and replace it with his own.”[2]

9.He directed himself that, as a matter of law, it is not necessary in order for the misconduct to reach the level of seriousness required for it to attract criminal sanction that it must be shown that the defendant’s acts of misconduct were accompanied or prompted by a dishonest, corrupt or malicious motive.

10.After directing himself that the threshold of seriousness is a high one he found:

“The extent of the defendant’s departure from his responsibility to enforce the relevant provisions is large and the nature serious.”[3]

11.He then turned to examine the consequences of the applicant’s misconduct and said:

“I find that the consequences of the defendant’s non-enforcement instruction potentially serious.”[4]

12.He then concluded his discussion of the element of seriousness by saying:

“Having taken into consideration all the circumstances, I find that the defendant’s misconduct is serious enough to warrant criminal sanctions.”[5]

13.The judge then turned to the element of whether or not the applicant’s misconduct could be reasonably excused.  Having found that the excuse was the “smooth implementation” of the new requirements in the Cap 548G Regulations, he concluded that it could not.  He said it was not for the applicant to choose what law should be enforced and he must have known he had no statutory power to exempt vessels from compliance with the law albeit the Director of Marine did have such a power. 

14.He said it was not for the applicant “to choose appeasement over enforcement” and that “the appeasement of the industry is not a reasonable excuse for the defendant to decide to issue the non-enforcement instruction to his subordinates, nor is it a reasonable excuse for his failure to rescind the instruction at any time thereafter.”[6]  The judge thereupon convicted the applicant. 

The grounds of appeal   

15.In Amended Perfected Grounds of Appeal the applicant complains that:

(i) the judge erred in finding the applicant had a case to answer;

(ii) the judge erred in finding the applicant gave the instruction concerning the new children’s lifejackets rules in April 2007 when there was no evidence to make such a finding;

(iii) the judge erred in finding the applicant deliberately failed to rescind an instruction initiated by a predecessor of “old law, old ships, new law, new ships”;

(iv) the judge erred in failing to properly consider, in relation to the elements of “wilful” and “seriousness of the consequences” in the offence of misconduct in public office, the applicant’s state of mind at the time he gave the instruction regarding the children’s life jackets Regulation; 

(v) the judge failed to consider and deal properly with the issue of whether the applicant was empowered to exercise a discretion as to the implementation of the new children’s lifejacket rules and to consider properly whether the applicant had exercised this discretion honestly;

(vi) the judge erred in finding the applicant’s instruction was a blanket one covering all local vessels prior to the enactment of the new law;

(vii) the judge erred in directing himself that “motive is not an element of seriousness” in the offence of misconduct in public office;

(viii) the judge erred in his approach to the defence of reasonable excuse in finding the applicant had the necessary mens rea to commit the offence; and

(ix) the judge erred in finding there was no expert evidence to enable him to decide if the Marine Department approved or accredited or accepted dual purpose lifejackets as being as safe as children’s lifejackets when used by child.

Discussion

16.Grounds 1, 2, 3 and 6 all relate to factual findings made by the judge.  In making these findings the judge thoroughly examined the evidence and made a careful analysis of it.  In my view it is not reasonably arguable that those findings are plainly wrong.

17.In respect of ground 5 I did not consider it reasonably arguable that the applicant was possessed of the discretion that he contended was vested in him.

18.The grant of leave on grounds 4 and 7 was not opposed by Mr Andrew Bruce SC for the respondent and I was persuaded that they are reasonably arguable.  

19.At the hearing of the application Mr Daniel Marash SC, for the applicant explained that grounds 8 and 9 were inter-related.  It was the applicant’s case that the life jackets used on Hong Kong vessels were suitable for both adults and children and the applicant was aware of this when he made the decision to continue the policy of “old ships, old law, new ships, new law.”  That the new law made little practical difference was, in fact, adverted to by one of the prosecution witnesses.  All of this went to the applicant’s state of mind and was relevant to the assessment of his culpability, the seriousness of his misconduct and whether he had reasonable excuse for his actions.

20.Having heard Mr Marash on how he intended to advance grounds 8 and 9 of his Amended Perfected Grounds of Appeal I was satisfied that they were reasonably arguable.

Conclusion

21.For these reasons I refused leave in respect of grounds 1, 2, 3, 5 and 6 and granted the applicantleave to appeal his conviction in respect of the grounds 4, 7, 8 and 9 of the Amended Perfected Grounds of Appeal and also granted him leave to appeal his sentence. 

Mr Andrew Bruce SC and Ms Denise Souza, on fiat of the Department of Justice, for the respondent

Mr Daniel Marash SC and Ms Maggie Wong, instructed by Stephenson Harwood, for the applicant

[1] AB 79P-R, paragraph 256.

[2] AB 79S-T, paragraph 257.

[3] AB 80R-S, paragraph 261.

[4] AB 81E-G, paragraph 262.

[5] AB 81H-I, paragraph 263.

[6] AB 84K-Q, paragraphs 278-279.