HKSAR v. Chui Sing Chi Grace
Read the full judgment text of HCMA 590/2018 on BabelCite. This High Court CFI judgment was delivered on 8 April 2020.
1. The appellant, a doctor at the Department of Health was convicted after trial by a magistrate [1] of an offence of misconduct in public office contrary to common law and punishable under section 101(I) of the Criminal Procedure Ordinance cap 221. She was sentenced to 4 months’ imprisonment, suspended for 18 months and a fine of $20,000.
Cited by 2 cases · Cites 8 cases
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HCMA 590/2018 [2020] HKCFI 581 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 590 OF 2018 (ON APPEAL FROM KCCC 788 OF 2018) ________________________ BETWEEN
________________________ Before: Hon D’Almada Remedios J in Court Dates of Hearing: 3 June and 8 October 2019 Date of Judgment: 8 April 2020 ________________________ J U D G M E N T ________________________ 1.The appellant, a doctor at the Department of Health was convicted after trial by a magistrate[1] of an offence of misconduct in public office contrary to common law and punishable under section 101(I) of the Criminal Procedure Ordinance cap 221. She was sentenced to 4 months’ imprisonment, suspended for 18 months and a fine of $20,000. 2.The appellant now appeals her conviction and sentence. Overview 3.The appellant was the sole doctor and officer in charge at the San Po Kong Elderly Centre (“the Centre”) set up by the Department of Health (“DH”). Her family members were not eligible to the services at the Centre as they were not 65 or over. As the officer in charge, the appellant took clinical specimens from her family members at the Centre. She made use of staff at the Centre to make a total of 75 requests for testing of the clinical specimens to two government laboratories over a period of 12 years. The government laboratories then analysed the specimens and produced laboratory reports which were sent to the appellant at the Centre, which the staff at the Centre then passed onto her. 4.The magistrate found this was a case of dishonest appropriation by a public officer of valuable human and technological resources belonging to the public and the government, public resources that are of obvious importance, because the laboratory reports contained technical information of diagnostic significance and the appellant’s misconduct was serious.[2] 5.The magistrate found that the appellant had committed a malfeasance. He found that she was dishonest and had a secondary improper motive namely to obtain laboratory reports of diagnostic significance for the benefit of her family members[3]. 6.As a result of her request for the clinical specimens to be tested through the Centre and at the laboratories she :-
The charge of misconduct in public office 7.The particulars of the amended charge were as follows:
The undisputed facts at trial 8.The appellant was the sole doctor and officer-in-charge of the Centre set up by the DH, located in San Po Kong between September 1999 and October 2016. There were also nurses, clerical staff and workman working at the Centre. 9.The Centre provides integrated health services including health assessments and medical consultations to the elderly aged 65 and over on a membership basis. The members of the Centre are entitled to medical services, namely health assessment, medical consultation by medical officers and clinical specimen tests which tests were obtained from either one or two laboratories under the DH. 10.Enrolled members are required to pay an annual fee and a fee for each medical consultation, which includes the fee for drug prescriptions and clinical specimens testing services (laboratory tests). 11.Members paid fees either as eligible persons or as non-eligible persons. Members holding a valid Hong Kong Identity Card and other persons approved by the Director of DH are eligible for the rates of charges applicable to eligible persons. Eligible persons are required to pay an annual membership fee of $110 and a consultation fee of $50 ($45 before June 2017) for each medical consultation, which included the fees for prescriptions, x-ray examination and clinical specimen tests, if necessary. 12.The appellant’s core duty was to provide medical and health services to the elderly who were members of the Centre. 13.From July 2004 to April 2016, that is for a period of 12 years, whilst in her position as the sole doctor and officer in charge of the Centre she obtained free of charge, 75 laboratory tests (on 67 occasions) in respect of four of her family members who were not eligible to the service at the Centre as they were not 65 or over. 14.In order to make a request for a laboratory test for the appellant’s family members, the appellant had to complete and endorse a Test Request Form. The appellant took the specimens herself from her family members and placed them together in sealed packets for delivery to the laboratories. The nurses working at the Centre made entries in the daily registers stipulating that the specimens were sent to the laboratories “care of the appellant” and when the reports were received at the Centre, the nurses would chop them with the receipt stamp and hand them over to the appellant. The magistrate described these as “menial tasks”[4]. 15.Upon receipt of the clinical specimens and the Test Request Forms from the Centre, staff members of the laboratories would conduct the analysis of clinical specimen tests. After the analysis, the laboratories would send the test reports to the Centre by fax. The prosecution case at trial 16.The case for the prosecution was that for the relevant period the appellant misconducted herself in her public office as the sole doctor and officer in charge as she abused her official position in acting preferentially in favour of her family members who were not eligible for services at the Centre. By her conduct she made use of the staff at the Centre and falsely represented to the laboratory staff that they were eligible for testing when they were not. 17.The prosecution referred to the relevant civil service circulars and guidelines on conflict of interest and abuse of official position. A government officer is expected to serve the public with integrity, honesty, and impartiality. He must avoid conflicts, actual or potential, between his official duties and his private interests; he must not use his official position to further his private interests; and he must not coerce or induce his subordinates or others to do anything to his own benefit or that of his family and friends. The officer must not, in his official position, act or be seen to be acting preferentially in favour of them.[5] The defence case at trial 18.The appellant elected not to give evidence or call any witnesses. The appellant relied on the exculpatory part of her answer to the questionnaire prepared by the DH[6] and her cautioned statements given to the Independent Commission Against Corruption (“ICAC”)[7]. The appellant said that her sister and daughter had consulted her when they felt unwell, she had arranged for the necessary laboratory tests for them out of concern for their health, it had never occurred to her that doing so at the Centre was improper and she would not have done so had she known that it was improper, and she had never intended to deceive or take advantage of anyone; and she apologised for her ignorance and undertook not to do so again.[8] 19.The appellant relied on her appraisal reports, character references, donation records, appreciation letters and her good character. The defence case as put by way of cross examination and closing submissions was that the prosecution case put in context both factual and legal was not such that the appellant had committed the offence of misconduct in public office. 20.The defence submitted that the conduct by the appellant was a mistake or error of judgment on the part of the appellant. Her conduct was not of sufficiently serious misconduct to satisfy the offence of misconduct in public office. Further it was the defence case that she did not act dishonestly. Issue at trial and on appeal 21.The practice of the Centre and the 75 requests (on 67 occasions[9]) for laboratory tests made during the 12 years by the appellant in respect of her family members who were not eligible to the service were all not in dispute. 22.The sole issue at the trial and on this appeal was and is whether the appellant’s misconduct was so serious as to warrant a criminal conviction. Or in other words was the appellant’s conduct so serious as to move it from the realm of administrative fault to that of criminal behavior. The magistrate’s findings 23.In convicting the appellant, the magistrate set out his reasons and considered the relevant law in his comprehensive and extensive statement of findings (“SOF”). 24.He set out the elements of the offence of misconduct in public office as reformulated in Sin Kam Wah and Another v HKSAR (2005) 8 HKCFAR 192 at paragraph 47 of the SOF:-
25.The magistrate found all the prosecution witnesses truthful and reliable. He placed no weight on the appellant’s exculpatory answer to the DH’s questionnaire[10] and considered the defendant’s cautioned statement made to the ICAC did not take the matter any further[11]. 26.The magistrate found that the appellant whilst acting in her official position as the doctor in charge of the Centre she was to provide medical and health services to the elderly[12]. He found that she was well familiar with the criteria of the member’s eligibility for services provided at the Centre. She was the only person who could make requests for analysis on clinical specimens from members. She knew that either of the two laboratories would test the clinical specimens[13]. He found that she had abused her powers and discretions in the course of her public office for the benefit of her family members[14]. She had abused her powers and discretions for personal purpose which was clearly contrary to the public objects pursued by the DH[15]. She was acting preferentially in favour of her family[16]. 27.He found that the appellant caused the members of the staff of the Centre to process the requests for the tests which they would not otherwise have had to do[17]. As the doctor of the Centre she was aware that her requests for laboratory tests on the clinical specimens sent from the Centre would be processed by the two laboratories[18]. By her conduct she falsely represented, namely by using the test request forms belonging to the Centre[19], to the staff at two laboratories that her family were persons eligible of the Centre. Her misrepresentation to the laboratory staff at the two laboratories caused the staff to conduct the laboratory tests and issue reports. 28.The magistrate further found her acts were clearly dishonest according to the Ghosh test;[20], she had a secondary improper motive, namely to dishonestly obtain laboratory reports of diagnostic significance for the benefit of her family members[21]. He found her misconduct was without reasonable excuse or justification[22]. 29.The magistrate was satisfied beyond all reasonable doubt that this is a case of serious misconduct in public office as it was a dishonest appropriation by a public officer of valuable human and technological resources belonging to the public and the government, public resources that are of obvious importance, because the laboratory reports contained technical information of diagnostic significance[23]. Grounds of appeal 30.The appellant admits by her conduct she has apparently breached circulars and guidelines[24] issued by the Hong Kong Government[25] but that such breaches of duty or misconduct was not so serious as would reasonably justify a criminal conviction against her. 31.The appellant’s broad grounds of appeal against conviction are that the learned magistrate erred in finding that:-
32.I turn now to deal with the specific grounds of appeal. Ground 1- The magistrate was wrong in introducing a new category of misconduct without considering that the conduct must be serious not trivial. 33.The appellant complains that the magistrate erred in introducing a new category of misconduct by regarding that “misappropriation of valuable public human and technological resources” (the “Novel Concept”) per se, as “a species of misconduct in public office” without considering the essential elements of the offence that the misconduct must be “serious, not trivial”. 34.The appellant referred to previous authorities which had not only stressed but also extensively evaluated this essential element which elevates a disciplinary misconduct to a crime. The appellant submitted that a proper and careful analysis is called for, as held by Sir Anthony Mason in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at paragraph 86:
Discussion 35.I accept Mr Johnathan Man SADPP appearing with Mr Andrew Cheng SPP counsel for the respondent’s submission that ‘Misappropriation of valuable public human and technological resources’ was just the magistrate’s choice of expression to summarise the misconduct of the appellant. 36.Misconduct in public office may take many different forms. Sir Anthony Mason NPJ said at paragraph 81 and 91 of Shum Kwok Sher :
37.The offence can therefore be committed in vast variety of circumstances. There is not an exhaustive list of the situations which fall within the reach of misconduct in public office. 38.The magistrate went on to explain his meaning of his couched expression in para 117 of the SOF :
39.The couching by the magistrate of the all-encompassing phrase of misappropriation of valuable public human and technological resources as a species of misconduct in public office was his manner of conveying the form of misconduct taken as whole. 40.The magistrate had considered the element of serious not trivial throughout his SOF. At the very outset of his SOF at paragraph 6 he said: -
41.This ground fails. 42.Before I deal with ground 2 I shall deal with grounds 3, 4 and 5. Ground 3 43.The appellant complains that the magistrate erred in finding that the appellant had misrepresented to the laboratories that her family members were members of the Centre and were entitled to the laboratory services. 44.It was the appellant’s case that the Test Request Forms were not falsified as they clearly reflected the age of the appellant’s family members who were under 65. 45.It was not in dispute that the appellant stated the true age of her family members on Test Request Forms from the Centre. The appellant submits that there were no documents which contained any falsity nor was there any oral evidence that suggested the appellant falsely represented anything. 46.The respondent submits that the prosecution never relied upon any falsification of documents or oral falsification by the appellant as is clear from the amended charge at particulars (b) and (c). The particulars set out that the appellant falsely represented to the staff members of the two laboratories that the clinical specimens in respect of her family members were from persons eligible for clinical specimens testing of the Centre. The prosecution submits that by sending the test requests from the Centre, the appellant made implied representations that the clinical specimens came from persons eligible (65 years and over) for testing services of the Centre. Discussion 47.The particulars (b) and (c) of the amended charge set out that the appellant falsely represented to the staff members of the laboratories that her family members were persons eligible from the Centre without specifying that it was by documents or orally. 48.The magistrate found the misrepresentation was by conduct. At para 93 of the SOF he said :
49.As can be seen in the above passage the magistrate did not rely upon the falsification of any documents or oral words spoken by the appellant. He found that the appellant’s conduct of using the Centre’s request forms the appellant misrepresented to the laboratories that her family members were members of the Centre and entitled to the laboratory tests. 50.In the preceding paragraph 92 of the SOF the magistrate said under the sub-heading ‘misrepresentation’ that the laboratory technicians do not check the request forms. He said:
51.The responsible officer mentioned by the magistrate is PW3 Dr. Janice Lo, she was the Head of Public Health Laboratory Services Branch (“PHLSB”). Her evidence[28] was that she did not know there was a membership programme for the Centre. She also did not know that to be eligible to apply to be a member of the Centre that person’s age must be 65 or above. The questions of and answers of PW3 that followed were[29]:
52.It is apparent from the evidence of Dr Janice Lo and as the magistrate found the laboratory staff have no role in verifying the details provided in the requests form[30]. Hence they do not consider any aspects of eligibility of the tests and there was no duty nor was it the responsibility of the laboratory staff to consider if persons were eligible. The laboratory staff relied on the doctor’s professional judgment as to whether the patient needed any of the specimen tests of which tests were carried out accordingly. 53.The magistrate accepted the appellant had stated the true age of her family members on the request forms and found the staff of the laboratories played no role in verifying the details provided in the request forms. 54.Quite simply whatever was submitted to the laboratories from the doctors they trusted the doctor that the tests were needed and conducted them. They relied on the doctor’s professional judgment. 55.The magistrate found beyond a reasonable doubt that the appellant as the officer in charge of the Centre since 1999 was aware of this long- standing practice[31]. By sending the test request forms and the clinical specimens from the Centre to the laboratories for testing the appellant made implied representations that the clinical specimens came from persons eligible for the testing services. Thus by her conduct she falsely represented to the laboratory staff her family members were persons eligible for testing from the Centre. 56.Ground 3 fails. Ground 4 – The magistrate erred in finding the appellant’s acts were dishonest 57.The appellant complains that the magistrate erred in finding that the appellant’s acts “were clearly dishonest[32]” It is submitted by the appellant that she never hid the fact of her family members going to the Centre and she declared the correct ages of her family members on the request forms. Further in her answer to the Questionnaire the appellant said that it had never occurred to her that it was improper for the clinical specimens of her family members to be tested. The appellant contends that the appellant was not dishonest on either the objective or subjective prong of the Ghosh test. Discussion 58.The fact that the appellant never hid the fact that her family members went to the Centre and she correctly declared on the request form their true ages is not supportive of the fact that she was not dishonest. The fact that one openly breaches a rule or law is not evidence that one is not dishonest. Mr Man’s example was this. A robbery committed in broad daylight in public does not mean there is no dishonesty in it. The stealing by itself manifests the dishonesty. My example would be this if a cashier at a supermarket openly steals money from the cash till in front of her observing colleagues her appropriation of the money does not make it an honest one. 59.What the appellant did was a blatant and brazen disregard to the purposes and objectives of the Centre. Her indifference to its objectives does not transform what is clearly dishonest to honest. 60.Under the sub-heading of dishonesty the magistrate stated at para 94 to 97 and 100 the following :
61.For the sake of completeness the magistrate said the following at para 92 and 93 of the SOF:-
62.The magistrate was entitled to find the appellant to be dishonest. The appellant’s requests for the clinical tests for her family members was with a view to advancing her personal gain. She misrepresented to the laboratories that her family were members of the Centre and made use of the nurses’ compliance to their work and in following her instructions in dealing with the clinical specimens. The appellant herself must have known that her acts were dishonest by the ordinary standards of a reasonable and honest person. 63.Ground 4 fails. Ground 2 –Serious not trivial - The magistrate erred in finding that the appellant’s misconduct was sufficiently serious to be a criminal offence. 64.The appellant complains that even if the magistrate had considered the element of “serious not trivial” he erred in finding that the appellant’s misconduct was sufficiently serious to be a criminal offence. 65.The appellant submits that the appellant’s misconduct was not sufficiently serious when considering (i) the context in which it happened, (ii) the consequence of the misconduct and (iii) the lack of improper motive of the appellant. 66.The appellant referred to the magistrate’s express finding that there was no evidence at all on the following matters:
67.It is the appellant’s contention there was no evidential basis at all to say precisely what valuable public human and technological resources were misappropriated. Context 68.The appellant submitted that the “context”, i.e. the appellant’s position as the doctor of the Centre providing medical consultation and making requests for specimen tests by exercising her professional judgment as a doctor must be considered in determining the issue of seriousness. It was contended that the appellant was not involved in any policy making and utilisation of public funds in the DH. There was no evidence that her conduct had any effect on the integrity of the system and the public at large and the magistrate had found that there was no demonstrable loss to the public revenue, nor was any public service affected by what she did. 69.It was the appellant’s submissions that the appellant was acting within her legal power and authority in committing the alleged misconduct. Mr Cheng SC appearing with Mr Paul Leung, Mr Quinson Leung and Mr Dixon Tse for the appellant likened her case to that of the Canadian case in Quebec, R v Boulanger [2006] 2 RCS 49 which espoused her misconduct was an error of judgment. 70.Mr Cheng further relied on Macrae JA (as Macrae VP then was) in HKSAR v Tsang Yam Kuen, Donald [2018] HKCA 425 when he explained the importance of context by referring to Boulanger. He remarked that “not all misconduct by a public official is necessarily “an abuse…of the power and duty entrusted to him for the public benefit or of his official position” (at paragraph 129) 71.Mr Cheng also referred to Ho Hung Kwan Michael v HKSAR (2013) 16 HKCFAR 525 where the Court of Final Appeal considered the context in the public medical system. Mr Cheng submitted that the appellant’s apparent breach of circulars and guidelines cannot be said to have seriously tarnished the integrity of the system of out-patient service at the Centre simply because “valuable human and technological resources were used.” Consequence 72.As to the consequences Mr Cheng re-iterated that the magistrate made the express findings that there is no evidence whatsoever of any demonstrable loss to the Government revenue or the effect on the services to the elderly in the Centre or the workload of the laboratories. Improper motive 73.Mr Cheng contends there was no improper motive. He submitted that in a case of misfeasance of duty, given that it was within the appellant’s lawful power and authority to order tests the prosecution did not prove by evidence or inference the appellant was acting with an improper motive. Their submission was the appellant did not possess any improper motive or dishonesty as discussed above. Discussion 74.When discussing the offence of misconduct in public office, in Shum Kwok Sher v HKSAR, Sir Anthony Mason NPJ observed (at [69]) quoting the words of PD Finn: ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p.315:
“It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.” 75.In HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264 at paragraph 84 the Court of Final Appeal set out acts which have been held to constitute the offence of misconduct in public office. Further at paragraph 86 the CFA said :
76.The magistrate gave detailed consideration as to context. He specifically referred to[44] the question posed by Sir Anthony Mason in Shum Kwok Sher at paragraph 86 as to how serious the misconduct must be:
77.At paragraphs 86-89 of the SOF,[45] the magistrate properly identified the power, duty and discretions of the appellant’s office. In particular, the Magistrate said:
78.At paragraph 112 of the SOF he said:
79.The magistrate at paragraph 40 of his SOF considered that a breach of duty or of trust is not enough he referred to the case of R v Chapman and ors [2015] 2 Cr App R 10. He said: -
80.The magistrate said at paragraph 110 of SOF that the defence submits rightly that “context” is everything. He went on to consider the cases of Boulanger’s case,[48] Wong Lin Kay’s case,[49] and HKSAR v Ho Hung Kwan Michael[50]. He correctly distinguished the above cases. In this case contrary to that of Boulanger, the appellant had no legal power and authority to arrange clinical specimen tests for her family members. 81.It is clear that the magistrate considered the context of the appellant’s impugned conduct. 82.In the present case the appellant as the sole doctor collected the clinical specimen’s at the Centre’s premises, she used its request forms to request for testing of the specimens and reports from the laboratories dishonestly for her family members at the Centre who were not entitled to the services and at no cost. The forms were processed by the staff at the Centre. 83.The magistrate pointed out that the appellant’s role was to provide medical and health services to the elderly members of the Centre and not to her family members who were not entitled to the services. Her family who were not elderly benefited from the specimen testing. They were accorded preferential treatment as they had a connection to the appellant. The appellant had used her official position in her public office in such a manner that caused the nurses at the Centre to do menial work to benefit her family members. The nurses were not required to do the work for her family members as they were not members of the Centre. 84.The appellant did not carry out her duties in an impartial manner. As the sole doctor she was expected to exercise her powers and discretions to carry these duties in an impartial manner. This was a blatant and serious abuse of the official position conferred on her for the public benefit. She substantially departed from her responsibilities as the sole doctor and officer in charge of the Centre. Her conduct adversely impacted the integrity of the public health services system and public confidence in the impartiality of the system. 85.What the appellant did was a serious breach of her duties and deviated from the public objects which she was required to serve. Her family members benefited by the appellant providing assistance to them so that they enjoyed an unfair advantage. 86.It is apparent that the appellant breached various government guidelines. Various government and departmental circulars setting out the policies and guidelines on avoidance of conflict of interest and misuse of official position were made the subjects of admitted facts.[51] A central theme of these policies and guidelines is prohibition of officers to use their official position to further their private interests, or to accord preferential treatment to persons with whom they have connections. Officers should not use or permit the use of their government position or title or authority associated with their public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit to himself or his relations, friends or associates. Officers should not ask or direct any subordinate to perform any act or to provide service other than those legitimately required in the performance of official duties.[52] 87.By requesting for the laboratory tests at the Centre the appellant was blatantly abusing her powers, duties and discretions exercisable by virtue of her official position as the sole doctor and officer in charge of the Centre and substantially departed from her responsibilities. Her conduct was far below acceptable standards as to amount to an abuse of the public’s trust in her office. The conduct of the appellant adversely affected the integrity of the public health system and the public confidence in the impartiality of public administration. 88.The integrity of the system of out-patient service at the Centre would be seriously tarnished by what the appellant had done. Consequence and Improper motive 89.As can be seen below Chan PJ said in HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, where corruption, dishonesty or other illegal practices are involved it is not necessary to specifically consider the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct of public office. 90.The magistrate properly considered the consequence of her conduct. At paragraph 114 and 115 of SOF he was well aware that the appellant’s misconduct caused little or no demonstrable loss to the government and her family members were entitled to alternative public medical services at little or her daughter at no cost. He relied on Boulanger and correctly stated that the fact the government has suffered no loss does not necessarily mean that the offence is not made out. He took into account her method in requesting for the tests for her family from the Centre and the fact that she had engaged in a dishonest exercise of her powers and discretions. 91.Although there was no evidence of any demonstrable loss to the Government or revenue or the effect of the services on the elderly at the Centre or the laboratories the appellant had engaged in a dishonest exercise of her powers and discretions. 92.In Ho Hung Kwan Michael above Chan PJ said this about the element of seriousness as regards the consequences of the abuse of office, the motive of the accused, and the integrity of the system:
93.At paragraph 40 HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 at 848 Yeung JA (as he then was) had the following to say about the motive of the accused :
94.The magistrate discussed the issue of motive at paragraphs 105 and 106 of the SOF and came to the conclusion that the defendant had a secondary improper motive. He said at paragraph 106:
95.In this case the appellant by her conduct had clearly been partial to her family members. The family members were not eligible for the services at the Centre including medical consultation and specimen testing. She had effectively treated the laboratories as her own. What the appellant did was a selfish improper motive to intentionally benefit her relatives so that they would enjoy an unfair advantage. Further as the magistrate found the appellant’s act involved a dishonest practice the seriousness of the misconduct spoke for itself. 96.This was not a mistake as was submitted by the appellant. This was a serious breach of her duties which deviated from the public objects she was required to serve. This was serious misconduct. 97.The magistrate was entitled to find that the appellant’s conduct to be serious and not trivial. 98.Ground 2 fails. Conclusion 99.The magistrate gave detailed and careful consideration to the evidence and the application of the law. It is apparent from the thoroughness of his SOF that the magistrate was alive to all the important issues in the case. 100.The seriousness of the misconduct spoke for itself as the magistrate found that the appellant’s acts involved a clear dishonest practice. The appellant had abused her position as the sole doctor and officer in charge. There was a manifest departure from her responsibilities. She provided preferential treatment to her family, to which they were not entitled to. It gave rise to the perception that the system had not been operated fairly and impartially in that her family members were given preferential treatment. In doing so, she had used the staff at the Centre to do menial tasks. Her conduct fell far below acceptable standards as to amount to an abuse of the public trust in her role as sole doctor and officer in charge of the elderly Centre. 101.In the present case there was ample evidence before the magistrate supporting the seriousness of the appellant’s conduct. 102.The magistrate was correct in reaching his conclusion that the appellant had misconducted herself in public office. I find no merit in the criticisms of the magistrate. 103.The conviction is neither unsafe or unsatisfactory. The appeal against conviction is dismissed. Appeal against sentence 104.The appellant complains that the magistrate failed to show leniency as the appellant was convicted on a novel basis of “misappropriation of valuable public resources and failed to have sufficient regard to the mitigation advanced by the appellant together with her good character, such that the sentence warranted the imposition of a non- custodial sentence. 105.The maximum sentence for this offence is 7 years’ imprisonment. There is no tariff guideline for this offence. Sentences passed in other cases are often not helpful in considering the proper sentences as the sentence in these cases are fact sensitive. 106.The magistrate took into account all the mitigation advanced by Mr Cheng. The magistrate said at paragraphs 128, 129, 131 and 132 of the reasons for sentence :
107.The appellant wrongs were using the staff of the Centre, falsely representing to the staff of the laboratories that her family members were persons eligible and obtaining test reports. She was abusing her position and obtaining benefits for her family members over a long period of time. The appellant was well aware that her family members were not entitled to any of the testing by the laboratories through the Centre. Her conduct was not a mistake or error of judgment. Her conduct breached the relevant rules and regulations concerning conflict of interests and abuse of official position. 108.As the magistrate found the appellant to have been dishonest in her conduct he was entitled to take a serious view of the appellant’s misconduct and impose the sentence he did. 109.The sentence passed by the magistrate is neither wrong in principle or manifestly excessive. 110.The appeal against sentence is dismissed. Postscript 111.It is regretful that the handing down of this judgment has been delayed in view of the General Adjournment Period necessitated as a result of the Corona Virus or Covid-19.
Mr Man Tak Ho, Jonathan, SADPP and Mr Andrew Cheng, SPP of the Department of Justice, for the respondent Mr Cheng Huan, SC, leading Mr Paul Leung, Mr Quinson Leung and Mr Dixon Tse instructed by Yiu & Associates, for the appellant [1] Joseph To Esq [2] Paras. 114-117 of the Statement of findings (SOF) AB111-112 [3] Para 106 of the SOF AB(108) [4] Para 74 SOF, AB 29 [5] See paras. 10-16 of the SOF and Reasons for Sentence (RS) for the Prosecution’s case (AB74-76) [6] Para. 23 of the Admitted facts (Exhibit P105) (AB485) [7] Para. 25 of the Admitted facts (Exhibit P105) (AB486); Exhibits P104, 104A and 104B (AB425-479) [8] Para. 23 of the Admitted Facts (Exh. P105) [9] Para 4 footnote 4 of the SOF and AB 72 Dr Lee Siu-yin (PW1) confirmed under cross-examination that there had only been 67 occasions on which the defendant’s requests were made, in some of which more clinical tests than one to be done, making a total of 75 tests. The fees that the defendant’s family members would have had to pay if they had sought out-patient treatments were therefore $45 x 67, amounting to $3,015. In argument, the prosecution concedes that the defendant’s daughter would have been entitled to free medical services at a families clinic. The total amount of fees the defendant’s family members would have had to pay is adjusted to $2,970. [10] Para 100 of SOF and AB106 [11] Para 71 of SOF and AB 97 [12] Para 87 of SOF and AB 192 [13] Para 88 of SOF and AB 193 [14] Para 89 of SOF and AB103 [15] Paragraph 112 of SOF and AB111 [16] Paragraph 114 SOF and AB111 [17] Paras. 72-74 & 95 of SOF AB97-98, 105 [18] Paragraph 88 SOF AB 88 [19] Paras. 92-93 of SOF AB104-105 [20] Paras. 94-100 of SOF AB105-106 [21] Paras. 105-106 of SOF AB108 [22] Paras. 107-109 of SOF AB108-109 [23] Paras. 114-117 of SOF AB111-112 [24] Para 21 of the appellant’s revised submissions (“ARS”) [25] Guidelines on Staff conduct and discipline issued by the Civil Service Bureau, Department of Health exhibits P99-P103 [26] Para. 88b of the Defendant’s Closing Submissions dated 24 September 2018 [27] PW3 [28] AB854Q toV and AB855A [29] AB855 C [30] Para 92 SOF AB104 [31] Para. 92 SOF AB104 [32] Para 94 SOF AB105 [33] PW3 [34] SOF paragraph 74 AB98 [35] SOF para 75 AB98 [36] SOF para 75 AB98 [37] SOF para 75 AB99 [38] SOF para 78 AB100 at para 76 to 84 explained why he placed no weight on the inflated figure of $24,116 put forward by the prosecution as the costs of the 75 laboratory tests over the 12 year period. [39] SOF para 83 AB101 [40] SOF para 5 AB72 [41] (2012) 15 HKCFAR 185 [42] (2013) 16 HKCFAR 525, [26] [43] Element (5) of Sir Anthony Mason NPJ’s reformulation of the offence set out at [45] above. [44] Para 34 of SOF and AB93 [45] AB102-103 [46] R v Chapman and ors [2015] 2 Cr App R 10, at para. 31 [47] R v Chapman and ors [2015] 2 Cr App R 10, at para. 32 [48] R v Boulanger [2006] 2 RCS 49 [49] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [50] HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525 [51] Para. 22 of Exhibit P105 (AB484-485) [52] See:
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