HKSAR v. Siao Chi Yung, Weslie and Others
Read the full judgment text of HCMA 112/2020 on BabelCite. This High Court CFI judgment was delivered on 20 May 2021.
1. There were originally four defendants in the present case. At the beginning, D1 was charged respectively with D2 and NG Wang-Leung (“D3”) for an offence of conspiracy to gain access to computer with dishonest intent [1] . D4 was charged with an offence of access to computer with dishonest intent [2] in 2018. Thereafter in 2019, the Prosecution amended the offences. D1 was then charged with D2 and D3 respectively for “conspiracy to commit misconduct as public official” [3] (“the Present Offen
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[English Translation - 英譯本] HCMA 112/2020 [2021] HKCFI 349 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL CASE NO. 112 OF 2020 (ON APPEAL FROM WKCC NO. 2550 OF 2018) ________________________ BETWEEN
________________________ Before: Hon Wong J in Court Date of Hearing: 18 to 19 February 2021 Date of Judgment: 20 May 2021 ________________________ J U D G M E N T ________________________ 1.There were originally four defendants in the present case. At the beginning, D1 was charged respectively with D2 and NG Wang-Leung (“D3”) for an offence of conspiracy to gain access to computer with dishonest intent[1]. D4 was charged with an offence of access to computer with dishonest intent[2] in 2018. Thereafter in 2019, the Prosecution amended the offences. D1 was then charged with D2 and D3 respectively for “conspiracy to commit misconduct as public official”[3] (“the Present Offence”) (Charges One and Two) and D4 for “misconduct as public official” (Charge Three). All the four defendants pleaded not guilty. 2.Before the commencement of the trial, D1 to D4 applied for a stay of proceedings. The application was heard before Magistrate Mr. Jason WAN Siu-Ming (“Magistrate WAN”) who refused the application. 3.The trial was then heard before Magistrate Ms. Kelly SHUI (“the Trial Magistrate”). 4.The Trial Magistrate convicted D1 to D3 on all counts after trial and sentenced D1 to a total of 14 months’ imprisonment, D2 8 months and D3 5 months (suspended for two years). D4 was acquitted while her application for costs was refused. 5.Now D1 and D2 appeal against refusal for stay of proceedings, conviction, and sentence. D4 appeals against refusal of her application for costs. D3 once appealed against conviction but he abandoned his appeal on 18 June 2020. The Prosecution Case 6.D1 was a tutor of Modern Education for the subject of Chinese Language. D2 and D3 were respectively appointed by the Hong Kong Examinations and Assessment Authority (“HKEAA”) in 2016 and 2017 as examiners of the Speaking Examination (“Oral Examination”), Paper Four of the subject of Chinese Language of the Hong Kong Diploma of Secondary Education Examination (“DSE”). D4 is D1’s wife. She was appointed as an invigilator of the Writing Examination, Paper Two of the subject of Chinese Language in 2017 by the HKEAA. 7.For Charge One, the Prosecution alleged that before or during the Oral Examination, D2 disclosed the Oral Examination questions to D1 by WhatsApp, a mobile phone communication software. Then D1 released the examination questions concerned on his Facebook Page. 8.For Charge Two, the Prosecution alleged that after D3 had attended the Oral Examiners’ Meeting (“Examiners’ Meeting”), he disclosed the 2017 Oral Examination grading criteria to D1, including the criteria that had never been made public. Having obtained the grading criteria, D1 produced and released a clip on YouTube in which he repeated the information that D3 had sent him and stated that such information came from “an official source”. 9.Regarding Charge Three, the Prosecution alleged that D4 left the examination venue during the invigilation period and sent the key points of the examination questions to D1 via mobile phone in the washroom. 10.In the trial, most of the matters were not disputed and were contained in the two admitted facts. In addition, the Prosecution called nine witnesses to testify. PW1 to PW4 were investigators of the Independent Commission Against Corruption, who testified on the special issue[4] related to D2. For the general issue, the Prosecution mainly relied on the testimony of Ms. WONG Wai (PW5), the former Director of Public Examinations of the HKEAA and Mr. WAN Tak-Wing (PW6), General Manager of the Assessment and Development Section of the HKEAA. 11.The following matters are not issues of dispute in the trial:
12.PW5[10] and PW6[11] pointed out in their testimonies that D2 and D3, as examiners of the Oral Examination of the subject of Chinese Language of the DSE, disclosing the Oral Examination questions and the grading criteria that were not to be made public before the examination started would make people feel that the examination was unfair and would affect the reputation of the HKEAA. 13.PW5 said that the conducts of D1 and D2[12] might have caused some candidates to come to know the examination questions in advance, and these candidates would have more opportunities to search for information related to the examination questions. In 2016, the Oral Examination was held for 9 days. Every day the examination was divided into two sessions. The first session started at 5:30 p.m. and there were four rounds of examinations, while the second session started at 7 p.m. and there were three rounds of examinations. The questions in the first session were different from those in the second session, while the questions in the same session were the same. If candidates in the first session arrived no later than 5:30 p.m. or in the second session, no later than 7 p.m., they could still participate in the examination in their respective session. Therefore, late candidates would have the opportunity to learn about the divulged examination questions on the Internet. In this way, they would have more preparation time than other candidates. Although the HKEAA did not overturn or cancel the candidates' results due to the conducts of D1 and D2, their actions would make the Oral Examination suffer from perceived unfairness, and the public confidence in the HKEAA would also suffer as a result. 14.Regarding the Oral Examination grading criteria[13], in order to ensure a fair and uniformed standardization, the HKEAA would hold an examiners’ meeting to equip examiners with the understanding of the assessment requirements, grading criteria and levels. The IOE and grading criteria distributed to examiners at the meeting were confidential documents, and the relevant grading criteria included some grading criteria that were not to be made public. The contents of the confidential grading criteria were different from those of the generally published grading criteria. Therefore, it would make people feel that the examination was unfair if such confidential grading criteria were made available to some candidates. The Defence Case 15.In the trial, none of the four defendants testified or called any witnesses. It can be seen from the submissions of Defence counsel at the trial that their lines of defence were:
Findings of the Trial Magistrate 16.For Charge One, the Trial Magistrate found:
Accordingly, the Trial Magistrate found both defendants guilty of Charge One. 17.For Charge Two, the Trial Magistrate also considered the above three matters as did she for Charge One. She was also of the view that the Prosecution had proved each of the matters mentioned. Accordingly, she found D1 and D3 guilty of Charge Two. 18.For Charge Three, the Trial Magistrate found D4 not guilty. Grounds of Appeal against Conviction D1 19.Counsel for D1, Mr. David MA and Mr. Winson YUNG put forward grounds of appeal as follows:
D2 20.Counsel for D2, Ms. Amanda LI and Mr. Marco TSE put forward grounds of appeal as follows:
Discussion and Consideration The Application for a Permanent Stay of Proceedings 21.Since the first ground of appeal of both D1 and D2 relates to this matter, so they would be dealt with together. 22.The Defence's application for a permanent stay of proceedings of this case was based on the following reasons. The “misconduct” that the Prosecution relied on to prove that each defendant committed the Present Offence was actually based on the offences set out in Section 15[14] of the Hong Kong Examinations and Assessment Authority Ordinance[15] (“Section 15 Offences”). When they were first prosecuted, the prosecution of the Section 15 Offences had already been time barred. Subsequently they were charged with other offences, depriving the Appellants of the protection granted to them by the law, thus rendering it impossible for them to have a fair trial. Therefore, the prosecution of the Present Offence was equivalent to an abuse of process. The Consideration of Magistrate WAN 23.Magistrate WAN pointed out:
24.Magistrate WAN was of the view that if the Prosecution's allegations simply referred to D2 and D3 disclosing confidential information to D1, what the Defence had put forward might have been more convincing, because such conduct was exactly what the Section 15 Offences aimed at. However, it could be seen from the Prosecution’s Brief Facts of the Case that, in addition to the conduct of D2 and D3 in disclosing confidential information, the Prosecution’s allegations also included the use of such confidential information by D1 for commercial purposes; and the consequences of that were not simply that other people came to learn of the relevant confidential information of the examination, but also that some people might use the confidential information to obtain commercial benefits on the one hand, and might enable some candidates to obtain an unfair advantage on the other, thereby dealing a blow to the fairness of the public examination system. 25.Magistrate WAN was of the view that the Prosecution had the right to choose the appropriate charge based on the focus of the allegation. He quoted the Prosecution that if the argument of the Defence was accepted, then when the facts of the case included someone bribing a public official causing him to disclose confidential information, the Prosecution could only prosecute the person for Section 15 Offences and could not prosecute him under the Prevention of Bribery Ordinance. He opined that this was unreasonable. 26.Magistrate WAN was of the view that the Prosecution had first prosecuted the defendants for the offence of “access to computer with dishonest intent” and then “misconduct in public office”. The purpose in so doing was not to circumvent the time limit for the prosecution of the Section 15 Offences, but because the relevant charge was more suited to the criminal conduct alleged in the present case, so the application for a permanent stay of proceedings was rejected. D1’s Submissions 27.In his submissions, Mr. MA reiterated the main reasons[16] put forward by the Defence in the trial. He criticized that Magistrate WAN had not properly applied the legal principles set out in R v J[17]. He also criticized that it was inappropriate for Magistrate WAN to take bribery as an example for consideration. 28.According to Section 15:
29.Mr. MA pointed out that on the charge sheet, the particulars of the two offences clearly stated:
He submitted that these acts of disclosure of confidential information were obviously the basis of the “misconduct” referred to by the Prosecution. If the Prosecution could successfully prove the conduct of D2 and D3 in the disclosure of confidential information to D1, the offence they committed should be the one stipulated under Section 15. That is to say D1 had committed subsection (3)(b) under Section 15, while D2 to D3 had committed subsection (3)(a) under Section 15. 30.Moreover, D1 himself was not a public official. Therefore, even if D1 used the confidential information for commercial purposes as stated by Magistrate WAN, that was not the conduct of D2 and D3. In addition, the conduct of D2 and D3 did not constitute any “misconduct” of public officials. In any event, the consequences of the disclosure of confidential information referred to by Magistrate WAN would only be considered factors affecting the seriousness of the allegations, but not an element of the charge, which were not necessary for the Prosecution to prove. Therefore, it did not constitute any basis for “misconduct”. 31.Mr. MA emphasized that the Prosecution ultimately had to and could only rely on the evidence that D2 and D3 had disclosed confidential information to D1 to prove that they had committed “misconduct” and then further prove their guilt. Such relevant conducts were precisely what Section 15 targeted. 32.Mr. MA also pointed out that both D2 and D3 received an Appointment Letter when they were appointed by the HKEAA, and the Appointment Letters stated the confidentiality clauses. The acts of disclosure of confidential information of D2 and D3 were made criminal acts by virtue only of Section 15; otherwise, such acts of disclosure of confidential information would only be acts in breach of a contract in nature. According to generally applicable legal principles, breaches of a contract in contract law cannot constitute the basis of criminal liability. 33.Mr. MA urged that because the “misconduct” alleged by the Prosecution in the present case was actually based on the Section 15 Offences, the prosecution of which had been time barred when the prosecution was initiated, and the Prosecution prosecuted the defendants with the Present Offence for the purpose of circumventing this time limit, thus causing injustice to D1. Submissions of D2 34.Ms. LI, counsel for D2, also emphasized that the Prosecution's basis to prosecute has not changed. She pointed out that from the particulars of the offence of Charge One[19], it could be seen that the misconduct that the Prosecution relied on was only D2’s disclosure of confidential information to D1. Even before the charge was amended, the alleged offence of access to computer with dishonest intent was D2's disclosure of the relevant examination questions to D1 through WhatsApp. Therefore, the criminal conduct alleged by the Prosecution was all along D’s disclosure of confidential information. 35.In the application for stay of the proceedings, the Prosecution alleged that due to the seriousness of the case and the fact that the basis of the prosecution far exceeded the scope of Section 15 Offences, therefore it was based on the practical considerations of circumstances that the Prosecution did not prosecute under Section 15 Offences. Ms. LI responded that if the Prosecution was truly of the view that the Section 15 Offences could not reflect the seriousness of the allegations in the present case, they should be prosecuted misconduct in public office right from the very beginning instead of access to computer with dishonest intent particularly because the offence of access to computer with dishonest intent could not possibly be suited to the gist of the allegations made by the Prosecution. That is, D2, as a public official, conspired with D1 in the disclosure of confidential information, thus harming the fairness and recognition of the public examination system. She criticized that the Prosecution’s position on seriousness was only to cope with the Defence’s application for a stay of proceedings, and it was not the original intention of the Prosecution. 36.As for Magistrate WAN’s opinion that the Prosecution’s allegations were not only about the disclosure of confidential information, but also included D1’s use of confidential information for commercial purposes, as a result dealing a blow to the fairness of the public examinations rather than merely having other people learn about the confidential information about the examination. Ms. LI submitted that how D1 used the information disclosed by D2 and its consequences must have been included in the scope of Section 15 Offences at the time of legislation. Whether there were such circumstances and consequences in the case was just a matter of the severity of the facts of the case, it would not change the fact that disclosure of confidential information was an offence under Section 15. How D1 used such confidential information and the consequences of D2’s actions were only the facts of the case, reflecting only the severity of such, instead of being any different criminal conduct. Therefore, Magistrate WAN was incorrect in taking the view that the criminal conduct alleged by the Prosecution in the present case was not limited to the scope of Section 15. 37.Ms. LI also submitted that the correct starting point for consideration should be the nature of the criminal conduct alleged by the Prosecution instead of also incorporating the alleged facts for consideration. There was a difference between the Charge Sheet and the Brief Facts of the Case, with the former reflecting the nature of the offence while the latter describing the alleged facts of the case. Different facts of the case or degree of severity of those facts would never change the nature of the criminal conduct. Regarding the present case, the nature of the offence was disclosure of confidential information. She also pointed out that the relevant charge alleged that as a public official D2 and D1 conspired to commit improper conduct. However, the alleged improper conduct was only committed by D2. Therefore, even if D1 obtained commercial benefits from the confidential information, or how D1 subsequently used the examination questions was not part of what the Prosecution alleged as criminal conduct per se, but just an aggravating factor to the facts of the case. 38.Ms. LI’s submission was that the present case did not involve more than one type of criminal conduct that could not be fully covered by Section 15, but that the alleged criminal conduct all along was only the disclosure of confidential information. Magistrate WAN erred in mixing up the aggravating factors and the criminal conduct of the case. 39.Magistrate WAN once explained with the example that if the circumstances of the present case involved bribery causing the disclosure of confidential information by public officials, then according to the Defence, the Prosecution could not prosecute the case under the Prevention of Bribery Ordinance. Ms. LI said that this example showed exactly that Magistrate WAN had not accurately grasped the importance of ascertaining the criminal conduct alleged in the first place, because if bribery was involved, another criminal conduct had already occurred, which could not be covered by the ambit of Section 15 Offences. This was not the situation of the present case. 40.Ms. LI pointed out that the reason why the Prosecution initially chose to prosecute with access to computer with dishonest intent was because that was an offence not subject to any time bar, thus avoiding the time limit of prosecution under Section 15. But because of the judgment of the Court of Final Appeal in Secretary for Justice v Cheng Ka Yee & Others[20], the Prosecution could no longer prosecute with access to computer with dishonest intent, and the charge was changed to the Present Offence. Obviously, it was once again an attempt to circumvent the time bar for prosecution under Section 15 by way of change of charges. 41.Ms. LI also pointed out that the maximum penalty for the Present Offence was higher than that of the Section 15 Offences, which showed that the Prosecution intended to circumvent the maximum penalty imposed by the legislature for the disclosure of confidential information. The legislation of the Section 15 Offences showed that the legislature also considered that the penalties under Section 15 were sufficient for the disclosure of confidential information, namely a maximum penalty of 6 months’ imprisonment and a fine at level four. Having been prosecuted for the offence in the present case, D2 would be possibly facing a greatly augmented penalty of a maximum of 7 years in prison and fines. As a result, D2 was sentenced to 8 months’ imprisonment, which exceeded the maximum penalty under Section 15. 42.Ms. LI submitted that based on the same facts of the case, the Prosecution prosecuted with different offences while the alleged conduct had always remained the disclosure of confidential information. Such approach of prosecution in effect deprived D2 of the protection of the statutory time bar and the maximum penalty, which was an abuse of process. Respondent’s Submissions 43.Ms. Irene FAN[21] (Ms. FAN), SADPP of Department of Justice, for the Respondent pointed out that the decision made by the Prosecution on this occasion was completely due to the fact that Section 15 Offences was unable to cover the criminal conduct of the Appellants and had nothing to do with circumventing the time bar or maximum penalty. 44.She cited cases including R v Rimmington[22], SJ v Siew Yun Long[23] and R v Stockli[24], submitting that the Prosecution could choose to prosecute offences which are suited to the criminal conduct alleged in the case under the common law rather than those under the statutory law. And she supported Magistrate WAN’s decision. 45.She forcibly submitted that it was incorrect to say that the Prosecution in the present case was only based on the confidentiality obligation stated under Section 15 because the Section 15 only covered the acts of disclosing confidential information, but not the motive, purpose or the foreseeable consequence of such conduct. The focus of the present case was not merely based on the disclosure of examination questions by D2 and D3 to D1, but also based on their actions that brought about perceived unfairness to the fairness and impartiality of the DSE. 46.The Prosecution originally prosecuted D1 and others for the offence of “conspiracy to access to computer with dishonest intent”, and the actus reus required for this charge was to gain access to computer, and at the same time, the Prosecution had to prove the various requisite intents or purposes required for the offence. Obviously, the offence of access to computer has higher requirements than those for Section 15 Offences and covers a wider range of criminal conduct. 47.She emphasized that the range of criminal conduct covered by the Present Offence was also broader than Section 15. The elements of the offence that the Prosecution shall prove are of a higher standard than those under Section 15. The Prosecution shall prove that the acts of the defendants had caused damage to the fairness and recognition of the DSE and the reputation of the HKEAA. The seriousness of their act of disclosing confidential information was an element of the offence in the present case, and the act of disclosing information was only part of the element of the offence. She submitted that since the criminal acts of the Appellants were beyond the scope of Section 15, so the Prosecution had solid grounds to prosecute the Present Offence. Consideration and Discussion 48.The court has the right to exercise its discretion to stay legal proceedings, but this power will only be exercised under special circumstances as the situation requires. In consideration, the interests of the accused must be balanced with the interests of the society as a whole.[25] 49.In an application for stay of legal proceedings, the court must consider:
50.According to Article 63 of the Basic Law, the Department of Justice is in charge of criminal prosecution without any interference. Generally speaking, under the circumstances that the Prosecution initiates a prosecution in good faith and that the accused can have a fair trial, the court will not lightly intervene in the decision of the Prosecution.[26] However, in R v Stockli, the English Court of Appeal pointed out that even if the accused is not denied a fair trial, if the prosecution constituted a manipulation of the process which the court could not sanction[27], the court has the right to exercise its discretion to order a stay of proceedings. The primary intention is to preserve the integrity of the criminal justice system.[28] 51.The development of this case may have its own special circumstances. However, in the end, the key issue is whether the Prosecution's subsequent prosecution of the Present Offence constitutes an abuse of judicial process, or causes serious injustice to the accused, or in any case, constitutes sufficient grounds for a stay of proceedings. 52.In the end, both D1 and D2 were found guilty of the Present Offence. Of course, whether the verdict is sound or not still needs to be reviewed. However, when Magistrate WAN dealt with the application, whether the evidence was sufficient to support the charges was not an argument put forward by either party, neither did the Defence put forward as an argument for the application that evidence was insufficient. 53.The cases cited by both parties have reference value, among which the following cases have considerable value reference and guidance:
54.It can be seen from these cases that the following matters should be considered:
55.I believe that this case should be considered based on the above-mentioned principles that are in line with this case. The key consideration is whether the actions alleged by the Prosecution were fully covered by the Section 15 Offences. If it is the case, then even if the relevant acts could also constitute the current offence of conspiracy, the court still has basis to stay the proceedings. 56.I also referred to SJ v Siew Yun Long[51] cited by Ms. FAN. This case is not a criminal case, but a civil summons for contempt of court that arose from non-compliance with a court injunction order. However, one of the issues in dispute in the case also involved whether the matter should be prosecuted under a statutory offence[52]. If that was the case, since the statutory time bar has passed, the prosecution could not be proceeded. Having considered Rimmington[53], Chow J of the Court of First Instance of the High Court (as he then was) pointed out that this issue involved the interpretation of the statute creating the offence. The key issue was to determine whether the legislative intent was that based on the overall circumstances of the case, after a statutory offence was established, only the statutory offence should be used for prosecution, and the corresponding common law offence could no longer be used for prosecution. 57.Although Siew Yun Long[54] was not a criminal prosecution case, Chow J’s views were reasonable and well-founded, and were consistent with the process of consideration[55] in R v J[56]in the House of Lords. In the R v Cotton[57], Pollok B's process of consideration also involved the interpretation of relevant provisions. 58.The Prosecution’s allegations of the conduct of D1, D2 and D3 can be seen in paragraphs six to eight above. 59.Magistrate WAN had a clear grasp[58] of the allegations of the Prosecution. 60.I notice that the details of the allegations stated by the Prosecution have not been elaborated in the particulars of the Present Offence. For example, the particulars of Charge One are as follows:
However, since the Prosecution had clearly stated its allegations to the court and the Defense before the trial that apart from disclosure of confidential information, there were other circumstances,[60] both the court and the Defence were fully aware of the Prosecution’s allegations and the Defence’s response and preparation were not affected, which did not cause serious injustice, so it was not a problem.[61] 61.Whether the Prosecution can prove the alleged matters is for the Trial Magistrate to deal with. 62.Magistrate WAN explained the reasons for his decision, with the following highlights:
63.Whether the examples of bribery mentioned by Magistrate WAN were fully in line with the relevant analysis and considerations was not critical. He was just citing some examples during the process of his consideration. 64.As mentioned above, the key issue was: In the present case, whether the Prosecution’s overall allegation of the defendants was completely covered by the Section 15 Offences[65], so that under the premise of fully respecting the legislative purpose and intent, prosecution should only be proceeded with under Section 15. 65.I agree that if the Prosecution’s allegations include the realization of the consequences alleged, that would clearly go beyond the scope of Section 15. 66.Therefore, it is necessary to distinguish whether, in the present case, the alleged consequence is a constituent element[66] of the conspiracy alleged by the Prosecution, or just the alleged modus operandi or the circumstances affecting the severity of the criminal liability. If the Prosecution’s alleged consequences are a constituent element of the conspiracy in this case, there is no doubt that the allegations go beyond the scope of Section 15. 67.The offence in the present case is conspiracy to misconduct in public office.[67] I am of the view that the alleged consequences of the alleged disclosure of confidential information are, in this case, the constituent elements of the conspiracy because the severity of the consequences has important bearing on whether the conspired conduct constitutes misconduct in public office. 68.The Prosecution had to prove more than what was required in Section 15. From another perspective, the Prosecution relied on more facts to support the Prosecution than simply “disclosure of confidential information”. Therefore, I am of the view that the present case did not involve a factual situation that could be fully covered by the offence under Section 15. 69.I have taken into consideration that the person who committed the offence in the present case must be a public official, not any person mentioned in Section 15, and one of the important elements of the offence in the present case was that the alleged misconduct was serious, a situation of malfeasance[68] that affected public confidence.[69] The Section 15 Offences do not have such a requirement. 70.My judgment is that the allegations made by the Prosecution against the Appellants were not fully covered by Section 15. Therefore, prosecuting the Present Offence was reasonable and well-founded. This judgment alone was sufficient to uphold Magistrate WAN’s reasons for his decision. 71.In addition, my consideration also goes to exploring the spirit of the legislation of Section 15. 72.The information and consequences involved in the disclosure of confidential information by personnel are inevitably capable of being minor or serious. Section 15 offences are offences that can only be prosecuted through summary proceedings[70]. It is difficult to imagine that the legislative intent is that regardless of the nature of the disclosure of confidential information, the information involved, the consequences of the disclosure, and its degree of severity, the offence could only be prosecuted through summary proceedings instead of adopting other appropriate offences, including those under the common law for prosecution. 73.Based on the aforementioned principles for consideration, having taken into account the overall situation alleged by the Prosecution in the present case and the submissions made by all parties, I am of the view that even if there were the consequences stated by the Appellants, the Prosecution still had good and sufficient grounds to proceed with the Present Offence instead of Section 15 Offences. Therefore, I rule that Magistrate WAN’s refusal for a stay of proceedings applied by the Defence was correct and in accordance with the legal principles and practical circumstances. 74.Taking into account the consequences of being prosecuted for Section 15 Offences as stated in the Appointment Letters of D2 and D3 should there be disclosures of confidential information, I am of the view that this was not sufficient ground to hinder the Prosecution to decide the appropriate offence based on the above-mentioned principles, nor could it amount to a reason justifying a stay of proceedings. Are D2 and D3 Public Officials? 75.Parts of the ground of D1's ground of appeal (II) (1) and D2's ground of appeal (II) are related to whether D2 and D3 are public officials. D1’s Submissions 76.Mr. MA’s submission was that neither D2 nor D3 was a public official targeted by the Present Offence. Ms. LI also submitted that D2 was not a public official. 77.The Trial Magistrate cited the judgment of the Court of Final Appeal in HKSAR v Wong Lin Kay[71] and made the following observations:
78.Mr. MA criticized that the Trial Magistrate ignored a key point in the judgment of the Wong Lin Kay, that was, whether it was based on the public interest that the relevant person was delegated powers, discretion or responsibilities. 79.Mr. MA submitted that the duties entrusted to D2 and D3 for the sake of the public interest were only to make fair assessments during the examination as examiners. Apart from that, the two did not have any power or discretion to make any decision bearing on the public interest. It was wrong for the Trial Magistrate to place too much emphasis on the status of D2 and D3 as examiners which entitled them to have priority in acquiring the examination questions or the grading criteria because the fact that the two knew the above information in advance was only for them to fulfill their duties in making assessments, not because of the rights conferred to them were based on the public interest. 80.Mr. MA also emphasized that D2 and D3, at most, were only in breach of their contractual duty of confidentiality owed to the HKEAA. D2’s Submissions 81.Ms. LI’s submissions were that although when the Trial Magistrate explained herself in finding the relevant persons as public officials, the reasons listed were not limited to those mentioned, there are also the following reasons[73]:
However, the grounds that the Trial Magistrate relied on were still insufficient to support the conclusion that D2 was a public official, so her judgment in this respect was wrong. 82.Ms. LI pointed out:
83.Ms. LI also cited Wong Lin Kay[81] and R v Mitchell (William)[82] of the English Court of Appeal to support her argument and pointed out that the Trial Magistrate's decision was wrong. The Respondent’s Submissions 84.Ms. FAN pointed out that the work of the HKEAA was obviously closely related to the public interest, and the elements of its public interest could also be seen by its inclusion as a public body[83] in the Prevention of Bribery Ordinance[84]. The most important thing was that DSE was an important part of Hong Kong's education system and had a great impact on the public (whether in employment, further studies, etc.). As examiners, D2 and D3 played an important role in the DSE. In addition to assessing candidates fairly and accurately and being responsible to the candidates assessed by them, they also shouldered the responsibility in observing the duty of confidentiality and guaranteeing the fairness and impartiality of the DSE, and were accountable to the public. If examiners performed their duties improperly, it would have an impact on the fairness and recognition of the DSE, as well as the overall education system in Hong Kong. 85.She emphasized that the focus should be on the function of the relevant person, not the capacity. Therefore, although D2 and D3 were independent contractors, they met the requirements of being a public official when they were appointed as examiners. She submitted that the ruling of the Trial Magistrate was consistent with the principles laid down in Wong Lin Kay and R v Mitchell (William). Discussion & Consideration 86.In my consideration, I took into account the elements of the Present Offence as determined by the Court of Final Appeal in Sin Kam Wah v HKSAR[85]:
87.I have also taken into consideration Wong Lin Kay[87], a Court of Final Appeal case relating to the relevant issues. 88.The appellant in Wong Lin Kay was a driver employed by the Agriculture, Fisheries and Conservation Department. He continued to perform his driving duties after being disqualified from driving and was charged with misconduct in public office. He was convicted by a magistrate, but his appeal was successful. After that, the Prosecution appealed. One of the arguments was that public officials included all employees of the government or public organizations. 89.Lord Millet NPJ[88] of the Court of Final Appeal pointed out:
90.The Court of Final Appeal pointed out: It is often out of focus and risky to isolate and independently consider whether the accused is a public official, or whether the accused is a public official and whether his conduct constitutes “misconduct” as two separate issues. 91.Under this premise, Lord Millet pointed out: In fact, there is only one question: Did the accused person’s conduct involve abusing the power, duties, or responsibilities that the person had been entrusted with and must exercise in the public interest?[91] 92.Ribeiro PJ[92] of the Court of Final Appeal, also pointed out that the essence of the offence of “misconduct in public office” is in the abuse of power. When deciding whether a person is a “public official”, the correct approach is to examine whether the accused has been delegated powers, discretions or duties based on the public interest, and then decide whether and how the alleged misconduct involves the abuse[93] of such powers or discretion, etc. 93.In R v Cosford[94], the English Court of Appeal pointed out that what the court should examine whether position held by the accused was a public duty. The key consideration should be addressed to the nature of the duty undertaken. A public duty is the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty.[95] 94.Cosford involved nurses working in prison. The English Court of Appeal ruled that the duties of these nurses are different from those working in general hospitals because in addition to the responsibilities of a nurse owed to the patients for whose care they are responsible; they are also responsible to the public for, so far as it is within their power to do so, the proper, safe and secure running of the prison in which they work. Under this circumstance, whether the prison is directly run by the government or by a private organization, the public nature of the duties of its related personnel will remain unchanged.[96] 95.The above considerations were approved in R v Mitchell (William). In this case, the English Court of Appeal pointed out that the court should not focus on the responsibilities of the agency, but the duties and responsibilities of the accused who work for the agency and examine whether those duties and responsibilities are accountable to the public. Based on this principle for consideration, the court ruled that an ambulance man employed under the National Health Service Trust[97] is not a public official because his duties are limited to providing services to individual patients. 96.Not any employee of the government or public organizations will commit the Present Offence. On the other hand, people who may commit the Present Offence are not limited to those in employment contracts with the government or public organizations. The important point is whether that person occupies the position to fulfill the public objective in which he is conferred with power, discretion or responsibility based on the public interest, and whether his alleged misconduct involves the abuse of such power or discretion. 97.The Trial Magistrate made important observations[98] in her ruling in this regard as follows:
98.Based on the above reasons, the Trial Magistrate ruled that D2 [and D3] were public officials at the time of the alleged offence, and that he [they] deliberately committed improper conduct without reasonable excuses or reasons for (disclosure of confidential information) during their public office. The misconduct was serious and not trivial. Although the examiner was an independent operator in the contract, this did not prevent him from attaining the status of a public official in law by being employed as an examiner, because it was his functions rather than status that needed to be focused on.[119] 99.I am of the view that in the circumstances of the present case, whether the HKEAA would use public resources had little effect in judging whether D2 and D3 were public officials. Based on the function of the HKEAA, it must be an organization that enforces public power. This is a factor that can be considered, but it is not the most important consideration. The key is whether the duties and responsibilities of D2 and D3 and their respective alleged actions are related to important public interests[120]. Even when the HKEAA is not a government employee or agent, nor does it enjoy any government status, immunities or privileges[121], D2 and D3 were independent contractors appointed by the HKEAA, not employees or agents of the latter. When considering whether a person is a public official, the focus is still on whether the powers and responsibilities entrusted to him because of his status are closely related to some important public interest, and whether the accused person’s conduct includes abusing the person’s powers, duties or responsibilities entrusted to him to be exercised in the public interest. 100.Although I agree that the HKEAA is an organization with public powers, I cannot conclude that D2 or D3 were public officials simply for this reason. 101.In their capacity as examiners, it was correct to say that the main responsibility of D2 and D3 was to assess each candidate fairly and impartially during the examination. However, to assert that they were only responsible for the candidates assessed by them, their duties not related to the public interest, and so even serious dereliction of their duties would not cause harm to the public interest, is unrealistic. If they committed an act that violated the ethics of their position, and the act would undermine a major public expectation of a fair examination, this must be in breach of the duties and responsibilities conferred on them for the sake of public interest. The main responsibility of an examiner is to assess the candidates, but he also bears the responsibility to ensure the fairness and impartiality of the examination. The HKEAA has set up a system to keep examination questions confidential. Due to the functions of an examiner, D2 and D3 had the privilege to know the examination questions and grading criteria in advance, and they had the responsibility of keeping them confidential. Even if the two of them could still fairly assess the performance of candidates after leaking relevant information, their respective actions would cause the public to lose confidence in the HKEAA and examination arrangements, and would also bring about at least perceived unfairness to the examination from the public’s point of view and thus affecting the recognition of the relevant examination. The importance of the DSE needs no repetition. The reasonable expectation of the public from an examiner is that, in addition to assessing candidates fairly, it must also be that he will not improperly disclose important information. This is an important public interest. Therefore, the duties of an examiner must be entrusted based on the above-mentioned public interests. The improper disclosure of the information involved in the present case is an abuse of power and violation of duties. 102.Although D2 and D3 were not government employees or agents, their work and responsibilities involved considerable public interest. Mr. MA’s submissions[122] focused too much on the “powers”[123] and “discretions”[124] mentioned in Wong Lin Kay, ignoring the “duties”[125] or “responsibility”[126] mentioned at the same time by the Court of Final Appeal, and overemphasized the duty of D2 and D3 in being only responsible for assessing candidates, ignoring the key responsibility in keeping information confidential. 103.Another line of submissions made by Mr. MA was that D4 was found not guilty in this case. One of the reasons was that the Trial Magistrate was of the view that she had no discretion or not much authority[127] in major matters. Mr. MA said that as an invigilator, D4 also had the privilege to know the examination questions in advance. The situation was similar to that of D2 and D3. The trial Magistrate found D4 not guilty, but ruled that in disclosing examination questions to D1, D2 abused the powers, responsibilities and duties entrusted on him based on the public interest. The verdicts were contradictory. 104.In this regard, Ms. FAN’s submissions were that D4 was just an invigilator, and her role in the DSE was different from that of D2 and D3. It was inappropriate to confuse the two. Not only was the judgment of the Trial Magistrate not inconsistent, it even showed that she had a clear grasp of the differences between the powers, responsibilities or duties assigned to D2 and D3 from those to D4. 105.She put forward the following arguments to support her position:
106.I am of the view that the matters raised by Ms. FAN should be taken care of by the trial Magistrate, and in fact she did. I am also of the view that there was no contradiction between the Trial Magistrate's verdict on D4 and those on D2 and D3. The Trial Magistrate's verdict on D4 was perhaps lenient, however, the key was whether her findings on D2 and D3 as public officials were safe and sound. 107.Having considered the overall relevant evidence, the submissions of various counsel (including those of Mr. MA on the grounds of appeal (II)(2)[132]), taking into account the reasons stated by the trial Magistrate, and her explanation showed that she had fully and properly considered all the matters raised by the Appellants, I agree with the judgment of the Trial Magistrate, that D2 and D3 were both public officials involved in the Present Offence. The grounds of appeal on this issue were dismissed. Have D2 and D3 Abused the Powers and Responsibilities Entrusted to Them in the Public Interest?[133] 108.This ground of appeal was related to D1’s grounds of appeal (II)(2). Mr. MA’s submissions were that the relevant acts of D2 and D3 in disclosing information to D1 did not constitute an abuse of the powers, responsibilities and duties entrusted to them in the public interest. Discussions in this area can be dealt with independently. It was also related to whether D2 and D3 were public officials. I have taken this aspect into consideration when considering the issue in question. I now deal with the issue of whether the conduct in question constitutes an abuse of power and responsibility. D1’s Submissions 109.Mr. MA made criticism towards the following two paragraphs in the Statement of Findings of the Trial Magistrate:
110.Mr. MA emphasized that the confidentiality obligations imposed on D2 and D3 were only the contractual responsibilities of the two to the HKEAA, which was clearly stated in their Appointment Letters. According to the confidentiality clause, Oral Examination examiners were required to keep permanent confidentiality of all the information they obtained in the performance of their duties. In other words, their confidentiality clauses were still valid even when the examination was over and the relevant information was already made known to the public. This showed that such responsibility for confidentiality must be borne to the HKEAA, not to the public because once the relevant examination questions or grading criteria became public knowledge, this duty of confidentiality no longer made any sense to the public. 111.He criticized that the Trial Magistrate mistakenly confused the responsibilities of the two to the HKEAA and those to the public. It was wrong for her to rule that D2 and D3 had the confidentiality obligation to the public. Therefore, it was also wrong for her to rule that their act of disclosing confidential information to D1 constituted an abuse of the powers, duties, or responsibilities entrusted to them for the public interest. Discussion and Consideration 112.Indeed, according to the terms of the contract between the two Appellants and the HKEAA, their contractual confidentiality obligations would still be valid even after the examination and the relevant information had already been widely made known to the public. The contractual clause in upholding the confidentiality obligation is permanent. The inclusion of the clause into the contract must have been intended to have its meaning and effect, and the two were bound by this clause. 113.However, the Present Offence did not target at the two appellants in their violation of the confidentiality clause of the contract, but rather targeted at the two appellants, being clear of their rights and responsibilities as public officials knowing full well that improper disclosure of relevant information would violate an important public interest and would be in breach of their official duties towards the public, still committing the relevant acts. Moreover, the alleged acts of disclosure by the Prosecution was actually conducted within a time when the relevant information could not have been made known to the public. The violation of the permanent contractual confidentiality obligation was not what was targeted at. 114.I believe that although D2 and D3, employed by the HKEAA, had a contractual relationship with it and were also bound by the confidentiality clause in the contract, this could not mean that how they performed their duties or whether they were in breach of their duties would not be of a certain degree of concern in the eyes of the public. Their duties lied great in the public interest, which were the responsibility owed to the society, not just to their direct employers. 115.The two types of responsibilities mentioned by Mr. MA were not incompatible with each other. I agree with the Trial Magistrate’s ruling that if D2 and D3 disclosed the examination questions and grading criteria to D1 at an inappropriate time, in addition to the possibility of breaching contractual obligations, it also constituted an abuse of the powers, responsibilities or duties entrusted to them by the public interest. This ground of appeal is dismissed. The Severity of the Appellants’Conduct 116.This issue involves D1's grounds of appeal (II)(3)[136] and part of the grounds of D2's grounds of appeal (II)[137] and can be dealt with together. D1’s Submissions 117.Mr. MA cited HKSAR v Ho Hung Kwan Michael[138] arguing that the severity of the relevant conduct did not constitute the “misconduct” of the Present Offence, and also criticized the Trial Magistrate for placing improper and excessive emphasis on the perceived unfairness[139] brought about by the conduct and for not having fully considered the overall situation of the present case. 118.Mr. MA pointed out:
119.He emphasized that according to Ho Hung Kwan Michael, the threshold was a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder.[141] D2’s Submissions 120.Ms. LI also submitted that D2's conduct did not reach the threshold for constituting the Present Offence. 121.She cited AG’s Reference (No 3 of 2003)[142]stating that the Trial Magistrate did not fully consider and evaluate the following related matters:
122.She pointed out that even if D2 violated the confidentiality obligations listed in the Appointment Letter, the court must still consider the consequences and impact of the violation when considering its severity. 123.She cited the following matters and submitted that D2's conduct had not reached the “severity” requirements of the law to constitute an offence of misconduct:
She emphasized that if the examination questions were leaked after the examination, the examination questions would have already been “made public”, and the severity of such act did not constitute the element of “misconduct in public office”. The Trial Magistrate was wrong in her judgment. 124.Ms. LI also pointed out that all WhatsApp messages showed that D2 did not send the examination questions to D1 until after 5 pm and 6:30 pm. No candidates could benefit from the questions released after the two time periods. She criticized the Trial Magistrate for not having fully considered the following evidence:
125.Ms. LI emphasized that there was no evidence in the present case to prove that candidates were denied a fair opportunity in the examination, and it was not necessary to overturn or cancel candidates' results in the 2016 DSE Oral Examination for them to retake it again. Under those circumstances, it was wrong for the Trial Magistrate to point out that the Appellants’ actions would lead to perceived unfairness because when a bystander clearly knew the various measures taken by the HKEAA to prevent unfairness, perceived unfairness would definitely not be brought to the public examination. Therefore, she submitted that even if D2 violated the confidentiality obligations listed in his Appointment Letter, those actions did not affect the fairness of the examination, and as a result, such severity did not reach the threshold of the offence of “misconduct in public office”. Respondent’s Submissions 126.Ms. FAN supported the findings of the Trial Magistrate. She said that in view of the important roles and responsibilities of D2 and D3 in the DSE, the importance of the DSE and the significant impact on the public, the two violated their responsibilities to protect the fairness and justice of the examination and divulged the examination questions and grading criteria to D1. It was a serious departure from their assigned duties and responsibilities. The actions of the two aroused public criticism and doubts about the fairness and impartiality of the DSE, brought perceived unfairness to the DSE, undermined the public's confidence in the HKEAA, and affected the reputation of the HKEAA and the public confidence in the DSE. The actions of D2 and D3 were obviously serious misconduct. 127.Ms. FAN cited two cases, HKSAR v Wong Kwong Shun, Paul[152] and HKSAR v Yuen Wai Chong[153] to support her argument. Discussion & Consideration 128.In Wong Kwong Shun, Paul, Yeung VP[154] of the Court of Appeal stated:
129.In Yuen Wai Chong[155], Barnes J of the Court of First Instance of the High Court reiterated the legal principles in Wong Kwong Shun, Paul. The appellant in that case was a senior education officer under the Education Bureau. She referred a student for “the places open for walk-in applications”. During the period, she did not declare that she and the student's relatives were good friends. Barnes J pointed out that regardless of whether the accused's misconduct would result in the relevant student being admitted to the school, her misconduct was already serious. The reason was that the appellant's misconduct had deviated from the public objectives that she was to serve – to make fair and just arrangements for the allocation of school places. She had also abused the discretion conferred upon her by her office[156]. 130.When considering whether the actions of D2 and D3 were serious, it was necessary to take into consideration the relevant public office and the responsibilities of the relevant public officials, the significance of the goal of the public office, and the nature and extent of the offence as a deviation from the responsibility to determine whether the relevant misconduct was serious instead of trivial. 131.The Trial Magistrate considered the duties and responsibilities of D2 and D3, the examiner's role in the DSE, the importance of the DSE, the examination itself and the impact of the examiners' conduct on the public, D2 acting as an examiner for a number of days in the course of the examination divulging a number of examination questions to D1, the confidential content of the examination that D3 sent to D1 prior to the examination, why the two of them did so respectively, whether there was any substantive adverse impacts, and the impact of their improper conduct on the society, and found each of their respective misconduct serious. 132.The Trial Magistrate pointed out[157]:
133.Regarding the first charge, the Trial Magistrate considered that the time when D2 provided information to D1 was important in the present case. She pointed out:
134.The contents and relevant time of the examination questions disclosed by D2 to D1 can be found in Annex 1[159]. 135.The Oral Examination was divided into two sessions every day, with different examination questions in each session. The first session was divided into four periods and the second session three periods. Each candidate took the examination in one of the periods. Candidate obtained the examination questions 10 minutes before the examination and had 10 minutes to prepare for it. 136.In short, the relevant information was sent to D1 after candidates had reported their attendance, and D1 posted the relevant information on his Facebook page within a short time. Although the HKEAA had set up various measures mentioned by Ms. LI, in theory at least two categories of people still had the opportunity to benefit during that period of time namely those who were late for no more than 30 minutes and those who went to the washroom during the waiting period and went against the rules after they had reported their attendance[160]. I accept that normally candidates were not aware of the above 30-minute period of discretion and in any case, those who benefited from this must be those who were minded to cheat. However, the existence of related risks could not be ruled out. There was indeed no evidence in the present case that any candidates benefited from such act of disclosing confidential information, nor did the HKEAA re-host the examination or adjust the scores due to the D2 and D3’s acts of disclosure. However, one could not ignore that it was the perceived unfairness brought about by the matters alleged by the Prosecution that the Trial Magistrate targeted at in deciding the case. 137.Mr. MA said that the evidence of the perceived unfairness came only from a prosecution witness and the fact that someone had complained to the HKEAA. I do not agree with this statement. The fact finder could according to the overall evidence decide whether the inference could be drawn that perceived unfairness was caused. Based on the circumstances of the present case, the perceived unfairness caused was the only reasonable inference drawn supported by the evidence. After all, the examination questions were leaked before some candidates started sitting for the examination. 138.I am of the view that the judgment of the Trial Magistrate on the seriousness of D2's conduct was reasonable and well-founded and supported by sufficient evidence. 139.Regarding the second charge, when assessing the severity of the relevant conduct, it is necessary to look at what information D3 provided to D1, how important it was and whether the information was as Mr. MA said widely known, or at least was within reasonable prediction or was just a cliché. 140.The relevant information related to the grading criteria. One thing that was not controversial in the case was that many grading criteria were already widely known, and many criteria were only about some predictable general directions. However, Ms. FAN pointed out that the following matters were first raised in the meeting that D3 attended on 4 March 2017, and they were not the type of information mentioned by Mr. MA. These materials involved the scope of examination questions and evaluation criteria, such as:
141.Mr. MA responded that whether such information was new was unsubstantiated by evidence. Besides, it was also in dispute in the trial. 142.I inspected the original trial transcripts, and during cross-examination of relevant witnesses[166], the Defence brought up the following matters[167]:
143.I am of the view that the so-called dispute did not specifically address the above-mentioned matters. 144.I also notice that D1 posted some information on the Internet on 9 March. He said something while sending out the message. His words contained the following important points[168] reflecting on the importance of the information:
145.Considering the overall relevant evidence, I am of the view that the Trial Magistrate was entitled to make a finding that D3 had disclosed to D1 the information that he was responsible for keeping confidential as a public official. 146.Although the severity of divulging grading criteria was not the same as divulging examination questions, it still had quite a serious connection with major public interests. 147.I am of the view that the Trial Magistrate’s consideration and analysis of the seriousness of the conduct of D2 and D3 were reasonable and well-founded. She fully considered the relevant legal principles and applied them. She also took into account the Defence submissions. She ruled that the relevant conduct constituted the “misconduct” of the Present Offence, which was consistent with legal principles and was supported by sufficient evidence, which was a safe ruling. This ground of appeal is dismissed. Did D1 Conspire with D2 and D3? 148.This issue was related to D1's grounds of appeal (II)(4)[169] and D2's grounds of appeal (II)[170] and can be dealt with together. Submissions of D1[171] 149.Mr. MA criticized the following ruling of the Trial Magistrate as wrong:
150.He cited the decision of the Court of Final Appeal in SJ v Chan Chi Wan Stephen[173]and insisted that the Prosecution must prove the relevant criminal intent of the conduct of the offence. 151.He said that the offence of “conspiracy to misconduct in public office” must involve a public official, which was like the requirement of an agent in section 9 of the Prevention of Bribery Ordinance[174]. When considering the Prosecution’s proof of the criminal intent in the offence of “conspiracy to misconduct in public office”, the Prosecution must also prove that when a person conspired with a public official, the person intended to conspire with a public official, and with the intent for the public official to commit “misconduct”. In other words, as regards the present case, the Prosecution must prove that D1 knew that D2 and D3 were public officials. If D1 did not know that D2 and D3 were public officials, or D1 had a bona fide belief that (regardless of whether the belief was correct) they were independent contractors of the HKEAA and were not public officials, in that case D1 would not have the intent to cause D2 and D3 to deliberately commit misconduct as public officials. Therefore, the Trial Magistrate erred on the intent required for proving the Present Offence by the Prosecution, and likewise erroneously ruled that D1 had intent to conspire with D2 and D3 who were public officials and caused them to commit misconduct. Discussion and Consideration 152.In my consideration, I have taken into account that the offence of conspiracy is stipulated by section 159A of the Crimes Ordinance[175], which is as follows:
153.In R v Chapman[176] cited by Ms. FAN, the English Court of Appeal stated in a case involving the same offence[177]:
154.Ms. FAN stated that whether D2 and D3 were “public officials” involved complex legal issues and needed to consider a basket of factors (their responsibilities, powers and duties) as in Chapman[181] in considering the extent of seriousness of the misconduct in order to make a decision. D1 knew that D2 / D3 were examiners. The basic duties of an examiner, the obligation to maintain fairness and impartiality in the examination, the importance of DSE and the public interest and so on, are basically common sense, and as a private tutor for the DSE, D1 must have understood such matters. If the Appellants were allowed to argue that they did not know that D2 and D3 constituted public officials in law when they were aware of the above-mentioned relevant facts and circumstances, it was equivalent to letting them rely on their ignorance of the law as their defence. Ignorance of the law is obviously no defence[182]. 155.Mr. MA pointed out that the Prosecution must prove the corresponding criminal intent (also known as mens rea)[183] in this case, which is of course correct. 156.However, I do not agree with his statement as follows: if D1 did not know that D2 and D3 were public officials, or D1 sincerely believed (regardless of whether the belief was correct) that they were independent contractors of the HKEAA and not public officials, D1 would not intentionally cause D2 and D3 as public officials to deliberately commit misconduct. Having reviewed the relevant provisions above and considered the judgment of Chapman[184], I disagree that the law required the Prosecution to prove that D1 knew that D2 and/or D3 were public officials in law. Moreover, regarding the matter of bona fide belief mentioned by Mr. MA, in the absence of D1's testimony, even if D2 and D3 were only independent contractors of the HKEAA, there was no definite evidence at the time of the trial whether D1 knew about this situation. 157.I believe that what the Prosecution had to prove was that D1 knew the situation of D2 and/or D3 when they made the agreement, including what D2 and/or D3 did and under what responsibility, and that the situation was sufficient for the seriousness of the relevant conduct to reach the threshold for committing the Present Offence. 158.It was enough for the Prosecution to prove that D1 knew the above-mentioned required circumstances. Although the seriousness of the conduct was closely related to the duties of D2 and/or D3, the key was the duties of the two persons, not whether the two persons fell within the legal definition of public officials. 159.I agree with the judgment of the Trial Magistrate on the seriousness of the conduct of D2 or D3 with reasons already given. 160.I also believe that the evidence clearly showed that D1 definitely knew that D2 and D3 were examiners, definitely knew the situation of D2 that he could not disclose the examination questions to him when there were still candidates waiting to sit for the examination, and also definitely knew that D3, prior to the examination, should not disclose to him the examiner's grading criteria only provided to examiners and not open to the public. 161.I am of the view that what the Prosecution had to prove about D1’s knowledge was supported by sufficient evidence, and the judgment of the Trial Magistrate was correct. Submissions of D1 and D2 162.Mr. MA and Ms. LI also submitted that there was no agreement between D1 and D2, and there was no consensus between them that D2 should engage in conduct which would constitute "misconduct". 163.Ms. LI pointed out that there was no direct evidence in the case to support the inference that there was such an agreement between the two. The Prosecution relied heavily on the WhatsApp messages between D1 and D2 to prove that there was such a conspiracy or agreement between the two. However, at best, the messages of the two were only after the examination that D2 gave the examination questions to D1 for him to have them explained to his students in class and have them filmed. For example: it can be seen from the WhatsApp records[185] of D1 and D2 dated 11 March 2016 that:
164.Ms. LI said that the above dialogue brought out two important points:
165.She also said that if the two had an agreement or consensus, both parties should have known earlier about when D2 would be the examiner. However, the fact that D1 asked D2 if he would serve as an examiner[186] on 17 and 21 March 2016 indicated that he did not know. Furthermore, D2's knowledge or understanding of D1's requests from the message was that D1 would explain the questions and take a video in the classroom after the examination. The targets would definitely not be the candidates on the examination day, but it was only to prepare candidates for future examinations. 166.Ms. LI submitted that there is absolutely no evidence in the case to show that D2 knew that D1 would directly put the examination questions on the social platform, and that there was no evidence to prove that the two parties conspired or agreed that D1 would disclose the questions of the upcoming Oral Examination before the it started. 167.A line of submissions by Ms. LI was that even if there was an agreement between D1 and D2, the court would still have to consider the nature of the agreement, whether it was of the kind alleged by the charge, especially when D2 sent out the examination questions to D1 only after the examination had begun. 168.She also pointed out that the core responsibility of D2, as an examiner, was to assess and grade candidates’ performance fairly and accurately, and there was no evidence in the case indicating that D1 intended or D2 agreed to do anything other than assessing and grading candidates fairly, impartially and accurately. She submitted that D1 and D2 had no intention at all to affect the fairness of the examination and/or the public confidence in the HKEAA, and their conduct did not actually affect the fairness of the examination and / or the public confidence in the HKEAA at all. 169.In fact, D2 sent the examination questions to D1 before the examination was over. Ms. LI made submissions on why D2 sent the examination questions so early since D1 only asked D2 to give him the examination questions after it was over. She said that after the Oral Examination had started, D2 had to carry out the assessment work as an examiner. It was possible that D2 hoped that D1 would get the questions earlier (rather than waiting for him to complete the assessment/grading work of the whole session of the examination) to enable him to have more time to prepare for the evening’s class and the teaching clips. In addition, the candidates taking the examination had entered the attendance-reporting room and had no chance to communicate with the outside world. D2 had reason to believe that the fairness of the examination would not be affected, or D2 might not have been alert and thought that much, so he sent the questions to D1 after receiving the questions. 170.On the above grounds, Ms. LI contended that there was no conspiracy between D1 and D2 to cause D2 to commit misconduct in his public office. 171.The Trial Magistrate gave the following account of her consideration of the conspiracy issue:
Submissions of the Respondent 172.Ms. FAN submitted that the Trial Magistrate's analysis was reasonable. She pointed out that:
Discussion and Consideration 173.As mentioned earlier, the timing of D2’s sending D1 the information and D1’s releasing it and some responses made by D1 are important. For example:
174.As for D3, the information was also sent to D1 immediately after the Examiners’ Meeting. D1's statements on the Internet (see paragraph 144 above) was also evidence for the Trial Magistrate to consider whether the necessary inference could be drawn. 175.The offence of conspiracy was committed when the parties entered into an agreement to commit the relevant offence. 176.I agree that, in the absence of any testimony made by any of the defendants, there was sufficient evidence in the case to support the inference that an agreement had been reached. Obviously:
177.There was also sufficient evidence in the case to prove that:
178.I find the submissions that D2 did not know that D1 would immediately release the information on the Internet feeble because what D2 had done already enabled D1 to freely disclose the information to the public at any time under any circumstances. 179.Therefore, in my opinion, the Trial Magistrate's verdict in finding them guilty of conspiracy was safe and there was sufficient evidence to support the inference. D2’s Good Character D2’s Submissions 180.Ms. LI criticized that throughout the entire Statement of Findings, the Trial Magistrate simply stated in paragraph 17 that D2 “had evidence of good character. In law, their propensity to commit criminal offences was relatively lower”. Other than that, the Trial Magistrate did not give sufficient direction or consideration on the credibility and criminal propensity of D2's positive good character. 181.Citing Tang Siu Man v HKSAR (No 2)[188] and HKSAR v Kotecha[189], she stated:
182.She submitted that as a teacher, D2's work ethics, integrity, work performance and attitude had a lot to do with the important issue of his criminal propensity which also touched on the core disputes involved in this case, including whether D2’s misconduct was intentionally committed and the seriousness of the misconduct. In the absence of any evidence indicating that D2 had received any benefits or rewards, coupled with the fact that D2 had positive and good character, the Trial Magistrate should carefully consider whether he would deliberately commit the misconduct. Would he agree to do something that affected the fairness of the examination? However, the Trial Magistrate did not explain in detail how she handled the relevant evidence, showing that she neglected the value of D2's character evidence and did not fully consider D2's relatively lower propensity in disclosing confidential information with the intention of affecting the integrity and fairness of the examination system, thus rendering the conviction unsafe or unsound. Discussion and Consideration 183.The Trial Magistrate stated at a very early stage in her Statement of Findings:
184.When she considered the statement made by D2 at his interview, she again pointed out:
185.The Trial Magistrate is a professional fact finder. Since she had raised relevant issues and gave herself appropriate guidelines, in the absence of clear evidence to the contrary, it is difficult to say that she handled it improperly and did not consider it carefully in the circumstances of the present case. As I have indicated in dealing with the matters in the other grounds of appeal, the Trial Magistrate made her findings on the various issues only after detailed and careful consideration. 186.This ground of appeal is dismissed. Whether the Conviction Is Unsafe and / or Unsound? 187.Both D1 and D2 raised this ground of appeal[192], but did not put forward independent justification for this ground. The validity of this ground of appeal depends on the other grounds of appeal put forward by the Appellants, which I have considered one by one. I am of the view that none of them is justified. 188.Magistracy appeals are conducted by way of retrial. On the whole, I am of the view that the convictions of all the offences by the Trial Magistrate are safe and sound and are supported by sufficient evidence. Sub-Conclusion 189.The appeals against conviction lodged by D1 and D2 are both dismissed, and convictions upheld. Appeal against Sentence Reasons for Sentence by the Trial Magistrate 190.The Trial Magistrate believed that the facts of the case were serious because the acts of D1, D2 and D3 undermined the examination system. 191.Regarding D1's sentence, the Trial Magistrate was of the view that for the benefit of his own prestige and personal interest, D1 had affected the impartiality of the DSE. For Charge One, the Trial Magistrate took 12 months' imprisonment as the starting point for sentencing. Taking into consideration the reasons for mitigation for D1, coupled with the delay in the case and D1's background, D1 was given a total of 3 months' sentence deduction and was sentenced to 9 months' imprisonment. For Charge Two, the Trial Magistrate stated that the case was not as serious as Charge One, so she adopted 9 months as the starting point, without giving any further deductions and sentenced D1 to 9 months’ imprisonment. Taking the totality of sentence into consideration, the Trial Magistrate ordered that 4 months of Charge Two to run concurrently with the sentence of Charge One, thus D1 was sentenced to a total of 14 months’ imprisonment. 192.Regarding D2, the Trial Magistrate also adopted 12 months as the starting point for sentencing. Due to D2’s background, contribution to society, enthusiasm for teaching and delay in the case, he was given a total of 4 months’ sentence deduction. D2 was sentenced to 8 months’ imprisonment for Charge One. 193.The Trial Magistrate made the following explanation[193] on her Reasons for Findings:
D1’s Submissions on Appeal against Sentence 194.The grounds of appeal against D1's sentence put forward by Mr. MA were:
195.Mr. MA pointed out that the seriousness of the two charges of “conspiracy to commit misconduct as public official” was largely reflected in the perceived unfairness, and that for each charge, the sentence of 9 months' imprisonment was manifestly excessive. The overall sentence of 14 months’ imprisonment was also manifestly excessive. 196.He also said that since the Trial Magistrate considered that Charge Two was less serious than Charge One, Charge Two should be punishable by means of a non-custodial sentence. Even with a custodial sentence, the sentence on Charge Two should be lower than that of Charge One. In addition, under the totality principle, the whole or most of the length of the custodial sentence for Charge Two should run concurrently with the sentence for Charge One. Thus, the overall sentence was too heavy. D2’s Submissions on Appeal against Sentence 197.Ms. LI's grounds of appeal against D2's sentence were:
198.Ms. LI’s submissions were that the Trial Magistrate erred in principle when sentencing for the following reasons:
199.Ms. LI emphasized that D1 and D2 were classmates in university. The Prosecution case never alleged that D2 received any benefit or advantage from D1, and there was no evidence that there was any element of corruption in the case. Although the Trial Magistrate also pointed out that the evidence did not show the motives of D2, and accepted that there was no evidence that D2 received a benefit D1, she repeatedly emphasized in sentencing that D2 must have benefited in a certain way, or D1 and D2 must have a special relationship of interests. In the absence of evidence in support of that, the Trial Magistrate subjectively used D2's acceptance of certain advantages as the basis for sentencing, which was an error in principle. 200.Ms. LI pointed out that D1's ability to obtain official information at the earliest opportunity and to offer elaboration on such information fortifying his popularity or reputation bringing in substantial benefits to his business. The Trial Magistrate also believed that in the present case, for the sake of fame and fortune, D1 used D2 to solicit more gains to his business whereas D2 did not get any benefit. So, it could be seen that D1 was the instigator of the whole incident. However, the Trial Magistrate did not consider this important distinction and adopted the same starting point in sentencing D1 and D2, in which she failed to properly distinguish the culpability of each defendant. She cited R v So Hung Lee[196] in support of this argument. 201.She also criticized that the Trial Magistrate did not fully consider that the conduct of disclosing confidential information that the Prosecution had been alleging was exactly the same as the conduct targeted by Section 15. She also raised the issue of whether Section 15 could be taken as the alternative charge in the present case at the end of the final submissions, yet she mistakenly believed that the maximum sentence[197] in Section 15 was of no assistance to the consideration of sentencing in the present case. 202.Ms. LI’s submissions were that in the absence of sufficient consideration of the overall situation, the Trial Magistrate erred in not having considered any non-custodial sentences such as suspended sentences. Respondent's Submissions on Sentence 203.Ms. FAN made the following submissions on the sentences of D1 and D2:
Discussion and Consideration 204.There are no sentencing guidelines for such cases. Sentencing depends on the uniqueness and the overall circumstances of the case. In assessing criminal liability, consideration should be given to the duties entrusted to the accused, the nature and extent of his dereliction of duty, and the impact made on the relevant public interest, etc. 205.Since D1 and D2 have been convicted, sentencing shall be based on the fact that D1 conspired with D2 and D3 respectively to commit misconduct in public office. Any arguments in the submissions of Mr. MA and Ms. LI that were inconsistent with this consideration would have nothing to do with the sentencing under consideration. 206.The matters[198] raised by Ms. FAN should have been taken into consideration. I concur with the Trial Magistrate in her judgment. Both charges of conspiracy have tarnished the reputation of the public examinations in Hong Kong and shaken the public’s confidence in the impartiality of the DSE examinations, which were quite serious. 207.There are many reasons why the HKEAA did not cancel the results of the examination, arrange for a re-examination, or deal with any candidates. Even if in reality no candidates cheated and there was no evidence proving any candidates had improperly benefited from that, yet such conduct for self-interest has affected important public interests, so it is necessary to tackle the problem squarely in sentencing so as to deter that from happening again. 208.As D1 was engaged in the business of tutoring, such conduct must have brought substantial benefits to him. 209.As for D2, there was no clear evidence indicating his actual motives. Therefore, it could not be viewed as safe to consider the sentence of D2 on the basis that he committed the offence with a view to reap financial benefits out of it. However, the key was whether the final punishment was appropriate. Even if D2 did not receive any money or economic benefits, it cannot be ignored that had he not participated in it, D1 could not have achieved anything. Furthermore, as an examiner, it was impossible for D2 not to have a full grasp of his conduct amounting to a serious breach of duty. 210.The argument that D2 did not know how D1 would use the relevant information or that he would use it immediately was feeble. The reasons have already been explained when dealing with the issue of whether there was collusion between the two parties. Moreover, D2 providing information to D1 at an inappropriate time, in all relevant circumstances, was tantamount to allowing the latter to use it in any manner or at any time. 211.I agree that when considering the sentence, the Trial Magistrate was not necessarily bound by the maximum penalty in Section 15. 212.In my opinion, for Charge One, the adoption of 12 months as the starting point was within the reasonable range in sentencing D1. 213.The information involved in Charge Two was not as important as the examination questions. The Trial Magistrate was also of the view that the charge was less serious than Charge One, so she took 9 months as the starting point in sentencing, which in my opinion, was also within the reasonable range. 214.Considering D1's background and the delay in prosecution, the Trial Magistrate granted him a 25 % discount reducing the sentence by 3 months. I am of the view that the above-mentioned sentence reduction has already fully reflected the relevant reasons for mitigation. 215.On the above grounds, the Trial Magistrate granted D1 a 3-month sentence reduction on Charge One but did not grant him any reduction on Charge Two. The reason given by the Trial Magistrate seemed to be that a sufficient deduction has been given for Charge One. The implication was that if the sentence of Charge Two was reduced again, there would be a risk of double reductions. 216.D1’s reasons for mitigation applied to both charges. Under the pretext that each charge should be subject to an appropriate reduction if the reasons for mitigation were applicable, every charge should be granted an appropriate sentence reduction. If the reduction of sentence for each charge was calculated and expressed in percentage, it was equivalent to giving the same degree of reduction after the final appropriate sentence has been determined. Doing so is not only in line with the principle of sentencing, but the concern of double reduction would also be eliminated. 217.Based on the above reasons, I consider that the sentence of Charge Two should also be deducted by 25%. Therefore, D1’s appeal against sentence is allowed, and the order is as follows:
218.The way the Trial Magistrate handled it was inconsistent with the above principle, so the sentence for Charge Two needs to be adjusted. Yet the key consideration is whether the final overall sentence was manifestly excessive. 219.At the end of the day, the Trial Magistrate sentenced D1 to a total sentence of 14 months’ imprisonment, which reflected that she, having taken into account the overall situation and the totality of sentence, considered the overall sentence to be appropriate. 220.I have carefully considered the overall situation and consider that, for the two charges for which D1 was convicted, a total sentence of 14 months was not manifestly excessive. It was within the reasonable range and was not inconsistent with the totality principle of sentencing. Although maintaining the total sentence of 14 months means that the sentence to run consecutively will be longer than the former order, from 4 months to 5 months, and taking up a greater proportion of the sentence for Charge Two, based on my assessment of the overall circumstances and D1's criminal liability, having taken into account the principles for consideration stated by the Court of Appeal in HKSAR v Ngai Yiu Ching[199], I consider that it is appropriate to maintain the total sentence of 14 months. 221.As I am of the view that a total sentence of 14 months is appropriate, I exercise the powers conferred by section 119(1)(d) and (e) of the Magistrates Ordinance[200] to order 5 months of the sentence for Charge Two[201] to run consecutively with the sentence of Charge One. D1's total sentence remains 14 months. 222.It was obvious that D1 committed the offences out of self-interest, yet it was not definite if D2 committed the offences under the same incentive. However, as mentioned above, D2’s guilt remains serious in its own right. Therefore, although the circumstances of the two were different, adopting the same starting point for sentencing was not unreasonable nor erroneous. 223.Ms. LI put forward a number of matters for D2 and submitted that the Trial Magistrate did not fully consider those mitigating factors, which ultimately resulted in an excessive sentence imposed. 224.The Trial Magistrate granted D2 a discount of 25% of his sentence. Although the matter had brought forth serious consequences for D2, it is difficult to say that the imposition of such a discount of such extent had not been preceded by the thorough consideration of the matters raised on behalf of D2. 225.Due to the substantial severity of the case, even if D2 had a good character in the past and has contributed to the society, considering the Court of Appeal case SJ v Wade[202], it is difficult to criticize the Trial Magistrate for not having ordered a suspended sentence. The fact that D3 was sentenced to a suspended sentence was based primarily on the Trial Magistrate's assessment of D3's duties, conduct and special personal factors[203]. The situation of D2 was different from that of D3, and the key was whether the sentence imposed on D2 was appropriate. 226.Ms. LI did not expressly submit that the Trial Magistrate should consider imposing a Community Service Order, another form of non-custodial sentence. In any case, since D2 has always denied the charges, it is difficult to say that there was sufficient remorse which was an important factor for consideration. Coupled with the seriousness of the case, it is difficult to say that it was wrong for the Trial Magistrate not to have considered the Community Service Order. D4’s Appeal for Costs Reasons for the Trial Magistrate's Verdict 227.The Trial Magistrate pointed out that D4's power or discretion as an invigilator of the DSE and her conduct (i.e. she told D1 that Paper 2 was about “Talking about Anger”, “Footprints” and “After This Incident or Finally the Knot in the Heart was Untied”) seemed to be at quite some distance away from the abuse of power, duty and discretion. The Trial Magistrate found that D4's misconduct was by no means trivial, but its seriousness had not met the threshold for conviction. The Trial Magistrate considered that the appropriate offence with which D4 should be charged should be Section 15, but as the time limit for prosecution had expired, she could no longer be charged under Section 15. 228.The Trial Magistrate pointed out that since the charge involved complex legal provisions, and all evidence had to be considered in order to reach a correct decision, it was understandable for the Prosecution to think or expect that the Prosecution case could successfully be proved in law. The Trial Magistrate pointed out that D4’s conduct brought suspicion on herself. She knowingly committed the offence and disclosed the information of Paper 2 to D1 during the invigilation period. Her final escape was but a fluke, and her application for costs was refused. D4’s Submissions 229.Mr. MA, representing D4, criticized that the Trial Magistrate erroneously ruled that D4's conduct brought suspicion on herself, and then erroneously refused D4's application for costs. 230.Generally speaking, an accused person who is acquitted should be entitled to costs unless there are positive reasons for depriving him of the same. The positive reasons include whether the defendant had brought suspicion on himself, whether his conduct misled the Prosecution into believing that the evidence was stronger than it was, and whether he was acquitted on technical grounds. 231.Mr. MA pointed out that the reason for D4’s exoneration was that the Prosecution failed to prove that she was a public official and that she did not commit any acts bringing suspicion on herself. The Trial Magistrate erred in finding D4’s act as bringing suspicion on herself, so it was also wrong for her to deny D4’s application for costs. Respondent's Submissions 232.Ms. FAN submitted that the Trial Magistrate’s finding of D4's bringing suspicion on herself was reasonable and justified. In addition, she cited Tong Cun Lin[204], arguing that unless the trial Magistrate had considered matters that should not have been considered, generally speaking, the court dealing with the appeal will not easily interfere with how the lower court had exercised its discretion. Discussion and Consideration 233.In Tong Cun Lin and Ting James Henry v HKSAR (No 2)[205], the Court of Final Appeal stated that in deciding whether to exercise its discretion to award costs to an acquitted accused, the conduct of the accused during investigation or trial which brought suspicion on himself was described as the “most relevant” factor of consideration. However, if before the investigation or trial, it is clear that the defendant might have engaged in conduct that raised suspicion, such as conduct that formed part of the background of the charge, there is no reason for the court to ignore such conduct, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the accused’s acquittal by the fact finder[206]. 234.In a subsequent case, HKSAR v Chan Yau Hei[207], the Court of Final Appeal allowed the appeal of the appellant and overturned the original conviction and ruled that the Trial Magistrate’s decision to refuse costs was correct. 235.In that case, the appellant published a piece of information on the Internet inciting others to commit terrorist acts. While the relevant offence was outraging public decency, the information was published on the Internet without the act being carried out in a place that physically existed. The conviction was quashed only because this element of the offence could not be proved. 236.Fok PJ of the Court of Final Appeal pointed out that the relevant information was inciteful and inflammatory[208]. In addition, there were several aggravating matters in the case with conduct deserving condemnation[209], where the appellant brought the prosecution upon himself[210]. He pointed out that in considering how to exercise the relevant discretion, such matters could be taken into consideration, and he agreed with the trial magistrate's decision in not ordering costs to the appellant. 237.D4's conduct was to divulge information that should not have been divulged, and such conduct was in breach of interests of society. The Trial Magistrate was of the view that she had committed the Section 15 Offences. 238.The Trial Magistrate considered that the reason why D4 was not charged with the Section 15 Offences was because the time limit had elapsed, which had nothing to do with D4. 239.D4 was acquitted not because of technical issues, or because of legal issues raised by the Defence which were beyond what the Prosecution could reasonably have expected, but because the Trial Magistrate considered that the evidence was insufficient to prove an element of the offence, and it was not the result of the Defence having raised evidence to undermine the Prosecution case. The Defence did not adduce evidence, and The Trial Magistrate’s judgment was that the Prosecution's evidence was insufficient. The Trial Magistrate pointed out that because the charges involved complex legal provisions, it was understandable for the Prosecution to think or expect that the Prosecution case would be successfully proved in law. 240.Although, in exercising the relevant discretion, the Trial Magistrate could take into account conduct which formed part of the setting for the charge laid, and Litton PJ[211] of the Court of Final Appeal in Tong Cun Lin[212] also stated that there was no reason to ignore such conduct, Litton PJ also stressed that the condition must be that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the accused’s acquittal by the fact finder. Otherwise, it is equivalent to punishing the accused improperly. This view was endorsed by Li CJ[213] in Ting James Henry v HKSAR (No 2)[214]. 241.In the present case, according to the line of thought of the Trial Magistrate, D4 committed the Section 15 Offences. This view was not without basis, but it was impossible to prosecute under Section 15. As for the Present Offence, the judgment of the fact finder was different from that of the Prosecution. The former found that one of the elements of the offence could not be proved, which occurs from time to time and is not limited to the present case. The conduct of D4 was indeed quite serious, but it was quite far from the severity of the conduct of the appellant in HKSAR v Chan Yau Hei, especially the Trial Magistrate’s judgment was that the severity of the conduct did not reach the threshold[215] of the element of the offence. In general, I think that the Trial Magistrate had placed too much emphasis on the fact that D4 had committed an offence under Section 15 for which she could no longer be prosecuted, and erred in considering the exercise of her discretion. It appeared that she had not considered or had not adequately considered whether in the circumstances of the present case, such exercise of discretion would inappropriately adopt a position inconsistent with D4’s acquittal. 242.Based on the above reasons, I allow D4's appeal against the Trial Magistrate's order refusing her application for costs, quash the trial Magistrate's order in respect of D4's costs and order costs of the original trial be to D4. If no consensus can be reached between the parties, costs be taxed according to the law. Conclusion Appeal against Refusal to Stay Proceedings 243.I dismiss the above appeal of D1 and D2 and rule in favour of the decision for refusal. Appeal against Conviction 244.The appeals of D1 and D2 against conviction are dismissed and the original convictions upheld. Appeal against Sentence 245.Part of D1’s appeal against sentence is allowed and the new sentences are as follows:
246.D2’s appeal against sentence is dismissed and the following sentence is upheld:
Appeal in respect of Costs 247.D4's appeal is allowed. Costs of original trial be to D4.
Ms. Irene FAN, Senior Assistant Director of Public Prosecutions and Ms. Peggy LEUNG, Senior Public Prosecutor of Department of Justice, for the Respondent Mr. David MA and Mr. Winson YUNG instructed by Messrs. Johnny K.K. LEUNG & Co. for the 1st Appellant and 3rd Appellant Ms. Amanda LI and Mr. Marco TSE instructed by Messrs. Lo & Lawyers for the 2nd Appellant Annex I[216] Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law. [1] The First Charge and Second Charge of the present case. [2] The Third Charge of the present case. [3] The correct and proper name of the offence should be conspiracy to misconduct in public office. See footnote 67. [4] The issue on the admissibility of D2’s record of interview as evidence. [5] Cap. 261, Laws of Hong Kong. [6] Cap. 201, Laws of Hong Kong. [7] Prosecution exhibit P8, Appeal Bundle, pages 338-377. [8] Prosecution exhibit P9, Appeal Bundle, pages 378-380. [9] Prosecution exhibit P3, Appeal Bundle, pages 306-308 and Prosecution exhibit P17, Appeal Bundle, pages 516-518. [10] See para. 10 above. [11] See para. 10 above. [12] Charge One. [13] Related to Charge Two. [14] Cap. 261, Laws of Hong Kong. [15] See para. 28 below. [16] See para. 22 above. [17] [2005] 1 AC 562. [18] The complete particulars of offence can be seen in para. 60 below. [19] See para. 60 below. [21] She and Miss Peggy LEUNG, SPP of Department of Justice, acting for the Respondent. [22] [2006] 1 AC 459. [23] HCMP 2917/2015. [24] [2018] 1 WLR 5609. [25] Connelly v Director of Public Prosecutions [1964] AC 1254; Director of Public Prosecutions v Humphrys [1977] AC 1; Attorney General’s Reference (No 1 of 1990) [1992] QB 63; Attorney General of Trinidad and Tobago v Philip [1995] 1 AC 396; Hui Chi-ming v R [1992] 1 AC 34; R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42; Jago v The District Court of New South Wales and Others [1989] 168 CLR 23. [26] R v Stockli, Judgment para. 47. [27] See para. 34, of the original judgment, “a manipulation of the process which the court could not sanction”. [28] See para. 36 of the original judgment, “integrity of the criminal justice system”. [29] See footnote 17, D2’s second case in his list of authorities. [30] See footnote 22, D2’s seventh case in his list of authorities. [31] See footnote 24, D2’s twelfth case in his list of authorities. [32] [2013] EWHC 475 (QB), D2’s eighth case in his list of authorities. [33] R v J judgment paras. 15 & 38. [34] See R v J judgment paras. 25 & 46; R v Stockli judgment para 17 quoting R v Dady [2013] Lloyd’s Rep FC 300. [35] See R v J judgment para. 29 & R v Rimmington judgment para 30. [36] See R v Rimmington judgment para. 30. [37] See R v J judgment paras. 38, 56 & 62. [38] See R v J judgment para. 64, R v Rimmington judgment para 30. [39] See R v J judgment para. 14, 571 C-D. [40] See R v J judgment para. 15, 571 E. [41] See R v Rimmington judgment para. 30. [42] Original text, “good practice”. [43] See R v Rimmington judgment para 30. [44] See R v J judgment para. 46. [45] See R v J judgment para. 49. [46] See R v Stockli judgment para. 38. [47] See R v Stockli judgment para. 45, the original textis“the common law offence of public nuisance goes above and beyond the statutory offences”. In the New Zealand Court of Appeals R v Blisht ((1903) 22 NZLR 837), the court also considered whether everything the accused did was fully covered by the offence subject to the time bar, and nothing more. The original English text is “nothing more”. The term “nothing more” was also adopted in the R v J, see judgment para. 46. [48] The original text is “fell squarely within (the statutory provision)”, judgment para. 6. [49] The original text is “the same conduct”, judgment para. 18. [50] See R v Stockli, judgment para. 45, the original text is “the statutory offence in question ‘precisely caught’ the criminal conduct being alleged.”. [51] HCMP 2917/2015. [52] Cap. 228, Laws of Hong Kong, Summary Offences Ordinance, s.23: Resisting or obstructing a public officer or other person lawfully engaged in a public duty. [53] See footnote 22. [54] See footnote 51. [55] See footnote 17. [56] See judgment of the case, paras. 18, 33-37 & 62. [57] (1896) 60 JP 824. [58] Can be seen from Magistrate WAN’s Statement of Findings paras. 3-5, Appeal Bundles pages 235 & 236. [59] See Appeal Bundle, page 21. [60] See paras. 15 & 16 cited from para. 23 above. [61] Refer to Archbold HK 2021 paras. 1-94, and HKSAR v Tsang Wai Lun Wayland CACC 96/2010 judgment paras. 175 & 176. [62] Magistrate WAN’s Findings, para. 22, Appeal Bundle, pages 240 & 241. [63] Magistrate WAN’s Findings, para. 23, Appeal Bundle, page 241. [64] Magistrate WAN’s Findings, para. 24, Appeal Bundle, page 241. [65] Relevant provision, see para. 28 above. [66] Namely “essential constituent elements of the conspiracy alleged” mentioned in para. 49 of the judgment in (2019) 22 HKCFAR 248, HKSAR v Chen Keen, the Court of Final Appeal. [67] In English, “conspiracy to misconduct in public office”. I agree to this Chinese version adopted by (2012) 15 HKCFAR 185 in HKSAR v Wong Lin Kay because it is more suited to the original text and elements of offence compared to the more commonly known Chinese version “公職人員行為失當”. [68] In HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, the Court of Final Appeal pointed out in the judgment, para. 26: “… this offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or his official position… ”. [69] In HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, the Court of Final Appeal pointed out in the judgment, para. 32: “… an abuse of the public’s trust in the office holder”. [70] Namely “summary only offence”, see para. 12 cited in para. 23 mentioned above. [71] (2012) 15 HKCFAR 185,D2’s 16th case in his list of authorities. [72] PW5. [73] A summary of MI. LI’s submission was adopted here. [74] See PW5’s submission, Statement of Findings, para. 26. [75] See Statement of Findings, para. 34. [76] See Statement of Findings, para. 40. [77] See Statement of Findings, para. 41. [78] See footnote 5. [79] See P3, prosecution exhibit, i.e. D2’s Letter of Employment as an examiner for Chinese Oral Examination 2016: “…You provide the services of an Oral Examiner as an independent contractor of the Authority. Nothing in this letter shall constitute or be deemed to constitute an employment or agency relationship between you and the Authority.” [80] See para. 10 above. [81] See footnote 71. [82] [2014] 2 Cr App R 2. [83] See footnote 6. [84] Cap. 201, Laws of Hong Kong, Prevention of Bribery Ordinance, Schedule 1, item 39. [85] (2005) 8 HKCFAR 192. [86] The judgment was written in English with no official Chinese translation. The Chinese judgment summary of the Law Report is now adopted. [87] See footnote 71. [88] Lord Millett NPJ. [89] The judgment was written in English with no official Chinese translation. The Chinese judgment summary of the Law Report is now adopted. For original text, see paras. 47 & 48. [90] See judgment para. 44. [91] The judgment was written in English with no official Chinese translation. The Chinese judgment summary of the Law Report is now adopted. For original text, see judgment para. 46. [92] Ribeiro PJ. [93] Judgment paras. 20-36. [94] [2014] QB 81. [95] This is not the official Chinese translation. The original reads, “Nothing in the authorities justifies the conclusion that the ‘strict confinement’ should be to the position held by whomsoever is carrying out the duty: rather, it should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty.” [96] See para. 37. [97] National Health Service Trust. [98] See Statement of Findings, relevant paras, Appeal Bundles from p.264 onwards. [99] See Statement of Findings para. 25. [100] See Statement of Findings para. 31. [101] Admitted Facts, para. 6, exhibit P47, Appeal Bundles p.35. [102] See Statement of Findings para. 24. [103] See Statement of Findings para. 31. [104] See Statement of Findings para. 25. [105] See Statement of Findings para. 27. [106] See Statement of Findings para. 28. [107] PW6 provided exhibits P9, pages 77 & 79, Appeal Bundles pages 378, 380. [108] See Statement of Findings para. 29. [109] Prosecution exhibit P5. [110] Prosecution exhibit P6. [111] Prosecution exhibit P8. [112] See Statement of Findings para. 33. [113] See Prosecution exhibit P3. [114] See Statement of Findings para. 34. [115] See footnote 82. [116] See Statement of Findings para. 40. [117] (2013) 16 HKCFAR 525，see judgment para.32: “The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.”. [118] See Statement of Findings para. 40. [119] See Statement of Findings para. 41. [120] See R v Mitchel (William) judgment para. 17. [121] Cap. 261, Laws of Hong Kong, Hong Kong Examination and Assessment Authority Ordinance, Section 14. [122] See paras.78-79 above. [123] “Powers” mentioned in the judgment. [124] “Discretions” mentioned in the judgment. [125] “Duty” or “duties” mentioned in the judgment, see judgment paras. 17, 19, 22 & 46. [126] “Responsibility” mentioned in the judgment, see judgment para. 46. [127] See Appeal Bundle page 2197 paras. B-C. [128] IOE page 6. [129] IOE page 7. [130] IOE page 18. [131] IOE page 26. [132] Submissions & discussion see paras. 108-115 below. [133] See para.19 above. [134] Statement of Findings para. 38. [135] Statement of Findings para. 62. [136] See para. 19 (II) (3) above. [137] See para. 20 (II) above. [138] (2013) 16 HKCFAR 525. [139] See Statement of Findings paras. 28, 39 & 64. [140] See para. 13 above. [141] The judgment was written in English. This is not an official translation. The original reads, “The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder.” [142] [2004] 2 Cr App R 23. [143] See judgment para. 46. [144] See judgment para. 56. [145] See judgment para. 56. [146] PW7’s evidence. [147] Evidence of PW5, PW6 & PW7. [148] PW7’s evidence. [149] PW6’s evidence. [150] Evidence of PW5, PW6 & PW7. [151] PW6’s evidence & P9 – 2016 Chinese oral examination’s flow chart. [152] [2009] 4 HKLRD 832. [153] [2016] 1 HKLRD 702. [154] Yeung VP, Court of Appeal as he then was. [155] See footnote 153. [156] See judgment para. 96. [157] Statement of Findings paras. 37-40. [158] Statement of Findings paras. 35, 36 & 39. [159] Appeal bundles, pages 147-149. [160] See the above paras.124 (III) & (IV). [161] See D3’s information sent to D1 by his mobile phone, P33 (3), Appeal Bundle P.736. [162] See D3’s information sent to D1 by his mobile phone, P33 (3), Appeal Bundle P.738. [163] See D3’s information sent to D1 by his mobile phone, P33 (3), Appeal Bundle pages 746 & 748. [164] See D3’s information sent to D1 by his mobile phone, P33 (3), Appeal Bundle P.751. [165] See D3’s information sent to D1 by his mobile phone, P33 (3), Appeal Bundle P.752. [166] PW5 WONG Wai. [167] See trial transcript pages 2300 - 2304. [168] See transcript in Appeal Bundles pages 492 - 502. [169] See para. 19(II)(4) above. [170] See para. 20(II) above. [171] This was only related to part of the submissions of D1’s grounds of appeal; for the other part, see para.162 below. [172] Statement of Findings, para. 42. [173] (2017) 20 HKCFAR 98. [174] Cap. 201, Laws of Hong Kong. [175] Cap. 200, Laws of Hong Kong. [176] [2015] 2 Cr App R 10, the fourth case of the Respondent’s list of authorities. [177] See para. 68 of the original judgment as follows:“In our judgement the judge was correct: to convict Lucy Panton the jury had to be sure first, that Scott Chapman was guilty of the substantive offence and secondly, that there was an agreement between Scott Chapman and Lucy Panton which, if it were carried out in accordance with their intentions, would necessarily involve Scott Chapman, acting as a public official, wilfully breaching his duties. The mental element on Lucy Panton’s part was in the making of the agreement and intending Scott Chapman’s wilful breach. Moreover, that misconduct on his part had to be in circumstances known to Lucy Panton which, on an assessment by the jury, met the threshold of seriousness. In our view nothing in s.1(1) of the 1977 Act requires that the prosecution make the jury sure that, at the time of the agreement, Lucy Panton knew or intended that Scott Chapman’s misconduct would meet the requisite threshold of seriousness. Nor does anything in Saik.” [178] i.e. mens rea. [179] See para. 152 in the above. [180] i.e. “actus reas”. [181] See para. 153 in the above. [182] Ms. FAN cited Johnson v Younde [1950] 1 KB 544 page 546 to support her argument. [183] i.e. “mens reas”. [184] See para. 153 above. [185] The Prosecution Exhibit P33(2) is the screenshots of the WhatsApp messages of D1 and D2 [AB718-732], and P33(5b) is the transcript of the relevant voice files [AB758-761]. [186] See Prosecution exhibit P33(2), pages 629 & 633. [187] Statement of Findings para. 44, Appeal Bundles pages 275-276. [188] (1997-98) 1 HKCFAR 107. [189] HCMA 502/2016. [190] Statement of Findings, para. 17. [191] Statement of Findings, para. 32. [192] D1’s ground of appeal (II) & D2’s ground of appeal (IV). [193] See Statement of Findings, paras. 71 & 72, Appeal Bundles page 286. [194] See footnote 153. [195] [2020] HKCFI 581，D2’s list of authorities, item 27. [196] [1986] HKLR 1049. [197] Six months’ imprisonment and fine at level 4. [198] See para. 203 above. [199] CACC 107/2011. [200] Cap. 227, Laws of Hong Kong. [201] See para. 217 above. [202] CAAR 1/2015. [203] See the verbal delivery of reasons for sentence of the trial Magistrate, Appeal Bundle page 2227. [204] (1999) 2 HKCFAR 531, 537-C. [205] (2007) 10 HKCFAR 730. [206] Judgment para. 16. [207] FACC 3/2013. [208] Original text “inflammatory”. [209] Original text “deserving of condemnation”. [210] Original text “brought the prosecution upon himself”. [211] Litton PJ. [212] See footnote 204. [213] See footnote 205. [214] Original text was written in English. The above is not an official translation but an adoption of the Chinese summary of Ting James Henry in the Law Report. See paras. 10 & 16 of the original judgment. [215] See the verbal delivery of verdict of the trial Magistrate, Appeal Bundle page 2197. [216] See this judgment para. 134. |
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