HKSAR V Lau Wai Yee Monita

DCCC 515/2021

[2023] HKDC 1049

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 515 OF 2021

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REASONS FOR VERDICT

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1.Defendant appeared before me charged with one charge of Misconduct in Public Office, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap 221.

2.Particulars are that she, being the holder of a public office, namely a lay member of The Medical Council of Hong Kong (“Council”), between 1 April 2017 and 23 January 2018, both dates inclusive, in Hong Kong, in the course of or in relation to her public office, without reasonable excuse or justification, willfully misconducted herself by:

(a)  Disclosing to Pang Hung Cheong (“Pang”)  the personal particulars of Lee Soo Ghee (“Lee”)  and the details of a complaint made by Lee with the Council against Doctor Wong Hon Wai (“Dr Wong”);

(b)  Causing Pang to arrange a meeting between Lee, Pang and herself on 26 May 2017 during which she solicited a retainer from Lee to pursue a civil claim against Dr Wong (“the Claim”); and

(c)  Accepting instructions via her firm of solicitors, namely Fongs, from Lee to act for him in the Claim.

The law

3.The elements of the offence of Misconduct in Public Office as per Sir Anthony Mason NPJ’s reformulation in Sin Kam Wah v HKSAR [2005] 8 HKCFAR 192 are:-

(a)  The accused is a public official (Element 1);

(b)  In the course of or in relation to his public office (Element 2);

(c)  Willfully misconducts himself by act or omission (Element 3);

(d)  Without reasonable excuse or justification (Element 4); and

(e)  Where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities (Element 5).

Prosecution case

4.The defendant was a Senior Consultant in Fongs, a firm of solicitors.  She would occasionally act as a volunteer legal professional for the Society for Community Organization (“SOCO”), an NGO.  PW4 Pang, also known as Tim, was a Community Organizer of SOCO.  PW4 Pang’s duties included assisting victims of adverse medical incidents to seek assistance from volunteered legal professionals for provision of preliminary legal advice with regard to the possibility of filing civil claims against the relevant parties liable for adverse medical incidents.

5.In March 2013 and December 2016, SOCO (PW4 Pang)  referred two patients of medical cases to the defendant for provision of preliminary legal advice.  The two patients complained to SOCO that Dr Wong Hon Wai (“Dr Wong”), a specialist in Otorhinolaryngology, failed to explain or sufficiently explain to them about the risk of conducting surgery in the removal of nasal septum and conducted the surgery in an inappropriate manner leading to the two patients’ suffering from Empty Nose Syndrome (“ENS”).

6.In April 2011, PW3 Lee underwent a surgery conducted by Dr Wong to correct his deviated septum and to improve his breathing problems.  After the surgery, PW3 Lee was suffering from high airflow and nasal and throat dryness, leading to prolonged insomnia.  In 2014, PW3 Lee was diagnosed of ENS which was allegedly caused by the inappropriate manner in which Dr Wong performed the surgery.

7.On 3 June 2015, Lee filed a complaint with the Medical Council against Dr Wong for his professional misconduct.

8.The Medical Council later referred the complaint to the Preliminary Investigation Committee (“PIC”)  for preliminary investigations.  Defendant was appointed by the Medical Council as the only lay member of the PIC.  On 11 April 2017, the complaint was first tabled for deliberation at a PIC meeting.  About 7 to 10 days before the PIC meeting, materials relating to the complaint including PW3 Lee’s mobile phone number and email address, were given to the defendant and other PIC members for preparation of the meeting.

9.At the PIC meeting, the defendant declared she was representing another patient in taking civil action against Dr Wong and thus recused herself.  As there was insufficient quorum as a result, consideration of PW3 Lee’s complaint was deferred to subsequent meetings.

10.In April 2017, the defendant called PW4 Pang and disclosed PW3 Lee’s complaint to him.  She asked PW4 Pang to contact PW3 Lee.  On 27 April 2017, the defendant also sent a WhatsApp message to PW4 Pang containing PW3 Lee’s contact details.

11.On 22 May 2017, PW4 Pang called PW3 Lee and introduced him to the services of SOCO.  Through the intermediary of PW4 Pang, a meeting was arranged for 26 May 2017 during which all three parties attended at the offices of Fongs.

12.It was the prosecution case that during this meeting, the defendant solicited a retainer from PW3 Lee to pursue a civil claim against Dr Wong by touting (saying two other patients suffering from ENS had engaged her to take civil action against Dr Wong, and if PW3 Lee did the same, the chance of making a successful claim would be high).

13.On or around mid-June 2017, PW3 decided to retain Fongs and the defendant to represent him in an intended civil claim against Dr Wong.

Defence case

14.Defendant elected to give evidence and called one character witness Dr Li Kwok Tung Donald and produced the witness statement of Prof Felice Lieh Mak under section 65B also for good character purpose.

15.As factual events, defence agreed that Particular (a)  and Particular (c)  did happen but disputed they were culpable misconduct.

16.The defence case was that the 3-party meeting on 26 May 2017 did happen but it was instigated by PW4 Pang; and it was not a case of the defendant causing PW4 Pang to arrange it.  Nor did the defendant tout for business at all during that meeting by whatever means.

Matters not in dispute

17.A lot of the prosecution case had been agreed in the form of Admitted Facts (P1)  and a lot of PW4 Pang’s evidence had not been challenged.

18.Apart from the facts set out in P1, there was in fact a lot of common evidence between PW4 Pang and the defendant.  For this common evidence I have no difficulty in accepting it represents the truth.  Although some of PW1 Chow’s evidence was questioned in a small way for being hearsay or unreliable because it was not her personal experience, much of her evidence was repeated by PW2 Tse who was not cross-examined at all.  In any event, those parts of PW1’s evidence do not form the main issue in the trial.

19.During the trial, a lot of WhatsApp messages and emails had been produced and they speak for themselves.  They are not disputed by either side and in fact form the basis on which various witnesses of facts have been cross-examined.

20.Matters not in dispute include:

(a)  Defendant was a public official ie Element 1 of the offence;

(b)  Particular (a)  of the Charge as facts without the defence conceding that it is culpable misconduct; and

(c)  Particular (c)  of the Charge as facts without the defence conceding that it is culpable misconduct.

Issues in the case

21.The issues in the case include:-

(a)  Whether Particular (b)  of the Charge, as facts, happened; and

(b)  Whether Particulars (a), (b), and (c)  of the Charge, individually, constitutes culpable misconduct in the sense that Elements 2, 3, 4 and 5 have been proved.

Procedural history

22.Prosecution called a total of 6 witnesses, namely PW1 Chow Kwan Ying (Deputy Secretary of the Medical Council’s Secretariat (“DSMCS”)), PW2 Tse Suk Yee (Ex-DSMCS), PW3 Lee (Complainant), PW4 Pang (SOCO Community Organizer), PW5 Prof Lau Wan Yee (Chairman of the Medical Council), and PW6 Ms Heidi Chu, (Secretary General of the Law Society).

23.During the prosecution case, defence applied for exclusion of (a)  parts of the intended evidence of PW5 Prof Lau and (b)  the Solicitors’ Guide to Professional Conduct, on the ground of inadmissibility.  After hearing submissions from both sides, I ruled the application failed.  Reasons are included in Annex 1 to the Reasons for Verdict.

24.After prosecution closed its case, defence made no half-time submission.  I ruled there was a prima-facie case.

25.Defendant elected to give evidence as DW1 and called one other witness DW2 Dr Li Kwok Tung Daniel mainly as a character witness.  In addition, defence produced a witness statement of Prof Felice Lieh Mak under section 65B in her capacity also as a character witness.  I will treat defence evidence in the same objective way that I treat all other evidence bearing squarely in mind that the burden of proof lies with the prosecution.

My consideration

Directions to myself

26.I remind myself the burden of proof rests with the prosecution throughout the standard being one of beyond reasonable doubt.

27.I bear firmly in mind the defendant is a person of clear record.  What that means is that as compared with a person with a criminal record, the defendant is less likely to commit a crime and that what she said in and out of court is more likely to be credible.

28.I bear also in mind there is in this case unchallenged evidence of positive good character in the person of the defendant.  Even PW4 Pang spoke highly of her.  The prosecution’s submission in this regard is that this is a case of a single fall from grace.

The facts

29.As spelt out previously, the defence does not challenge that Particulars (a)  and (c)  as facts took place.  Indeed, in the Admitted Facts (P1), paras 15, 21 and 22 recorded thus:-

“15. On 27 April 2017, at 4:02 pm, the Defendant sent Pang the following message via the application WhatsApp (“WhatsApp”):

“Re Dr Wong Hon Wai:

Lee Soo Ghee 李守義先生

Email [email protected]

Mobile 6779 6623”

“21. On or around mid-June 2017, Lee decided to retain Fongs and the Defendant to represent him in an intended civil claim against Dr Wong. A copy of the engagement letter dated 19 June 2017 issued to Lee by Fongs and signed by Lee is now produced and marked as Exhibit P8.

“22. On 26 June 2017, after Lee had paid $45,000 to Fongs as costs on account (“the Payment”), the Defendant represented Lee to file a civil claim against Dr Wong for compensation (“the Claim”). A copy of the deposit slip confirming the Payment is now produced and marked as Exhibit P9 and the certified translation of Exhibit P9 is now produced and marked as Exhibit P9A.”

30.The common evidence of PW4 Pang and the defendant was that during the first phone call on such topic made by the defendant to PW4 Pang on (or close to but before)  27 April 2017, the defendant disclosed the details of a complaint made by someone (ie PW3 Lee)  with the Medical Council against Dr Wong (ie Dr Wong Hon Wai).

31.Hence, as facts, there is no dispute that Particulars (a)  and (c)  of the Charge took place.

32.As regards the facts within Particular (b)  of the Charge, this is a hotly contested issue in the trial.  I have had regard to the submissions from both sides.  There are two sub-issues here: although there was no dispute there was a 3-party meeting which took place on 26 May 2017 at the offices of Fongs, the defence disputed (i)  that it was the defendant who caused PW4 Pang to arrange the meeting and (ii)  that during the meeting she solicited a retainer from PW3 Lee to pursue a civil claim against Dr Wong.

33.In regard to sub-issue (i), while it could fairly be said that but for the defendant’s disclosure to PW4 Pang about PW3 Lee’s complaint to the Medical Council, the subsequent events including the convening of the said meeting would not have taken place, one has to examine the evidence very carefully to see if it could be said that the defendant caused PW4 Pang to arrange the said meeting.

34.PW4’s evidence on the topic as extracted from the prosecution’s written closing submissions is as follows:-

“29. ……

(o)  On 27 April 2017 or on a day within a week before 27 April 2017, PW4 received a call from the Defendant when he was not in office;

(p)  The Defendant told PW4 that, when handling a complaint in a meeting of PIC, she noticed a complainant who was the third patient suffering from ENS after having a surgery conducted by Dr WONG. She told PW4 that the complainant felt very depressed, and the situation described by the Defendant was as if ENS “ruined his life”. The Defendant also noticed that the complainant’s case might have passed the 3-year limitation period. She told PW4 she really wanted to assist the complainant’s case and give legal assistance. In addition, she also wanted to see if SOCO could help the complainant. However, she thought that it was not convenient or appropriate for her to contact the complainant. As she did not want to contact the complainant directly, she asked PW4 if she could pass the contact method to PW4 for PW4 to contact the complainant;

(q)  Having been informed of the above, PW4 raised two questions to the Defendant:

(i)  Firstly, PW4 asked the Defendant if the complainant found that it was not alright and asked him about the details, how could he explain? The Defendant replied to PW4 that ‘perhaps someone found its way to contact PW4 or someone they didn’t know pass the contact method to PW4’, and she would see whether she would ask a colleague to pass the contact method to PW4 (‘PW4’s First Question’);

(ii)  Secondly, PW4 asked the Defendant that she handled complainant in the Medical Council and also represented the complainant in filing the claim, was there any conflict of interest in her role? The Defendant replied to PW4 that if she is a lawyer representing the patient (the complainant), she could recuse herself from the meeting and there was the same situation in previous file;

(r)  PW4 agreed to contact the complainant (PW3)  because the case was the third case in which the same surgery was done by Dr WONG with the same kind of negligence, ie failure in reminding the patient about the risk of the surgery, and the surgery might possibly be involved technical problem. The existence of the third case made PW4 felt that there was a stronger need and consideration of public interest to arouse public awareness of the risk of the surgery by consideration of taking some public action, for example, by holding press conference;

(s)  PW4 also considered that the Defendant’s relevant legal experience and medical knowledge in the field of ENS would be beneficial to the complainant’s legal claim against Dr WONG;

(t)  The duration of the phone call was about 10 minutes. During the telephone conversation, the Defendant did not mention that the complainant was PW3;” (emphasis by underlining added)

35.The defendant’s evidence as extracted from the prosecution’s written closing submissions is as follows:-

“41. ……

(nn)  The Defendant called PW4 on 27 April 2017 and the duration of the call was only around 2 minutes;

(oo)  The Defendant told PW4 that she came to know one more ENS case from the Medical Council. She thought this patient was in a really bad situation and having serious depression. The Defendant asked PW4 to see how he could help the patient. The Defendant further told PW4 that she would give him the patient’s information so that PW4 could contact PW3. PW4 replied ‘OK’ without asking her any question or having any reservation about contacting PW3 in such manner;

(pp)  The Defendant recalled that she might have said to PW4 it was not appropriate for her to contact PW3. If she did say so, her mind was that PW4 was more suitable than her to contact PW3 given PW4’s background and the resources of SOCO;

(qq)  The Defendant claimed that the sole purpose of her call was to ask PW4 help PW3 and during the call she had never mentioned to PW4 about the issue of limitation period;

(rr)  Not longer than 15 minutes after the phone call, the Defendant sent the WhatsApp message mentioned in paragraph 15 of the Admitted Facts (Exhibit P1)  to PW4 on 27 April 2017 (see also Exhibit D16/133). The message contained the name, email address and telephone number of PW4 which the Defendant said she got from the documents she got for the PIC Meeting;

(ss)  In examination-in-chief, the Defendant said she knew what she did (ie disclosing PW3’s information to PW4)  might contravene the Data Protection Principle and was not right that she ‘definitely would not do it again’;

(tt)  In cross-examination, the Defendant agreed that, by disclosing PW3’s information to PW4, she breached her duty to preserve confidentiality of the information. The Defendant also agreed that her disclose of PW3’s information to PW4 without any consent or authorization;”

36.A crucial difference on this topic between PW4 Pang’s evidence and the defendant’s evidence is the identity of the entity/ies who was/were to help PW3 Lee.  In PW4 Pang’s evidence, the helpers were both SOCO/PW4 Pang and the defendant.  In the defendant’s evidence, the helper was only SOCO/PW4 Pang.

37.If PW4 Pang’s evidence is correct, then I believe it could be said that, given the practice and understanding between PW4 Pang and the defendant as regards distribution of work, the defendant did cause PW4 Pang to arrange the said meeting.

38.On the other hand, if the defendant’s evidence is or might be correct, then it could not be said the defendant caused PW4 Pang to arrange the said meeting.

39.On this score, I have a doubt as to whether the defendant did say to PW4 Pang “she really wanted to assist the complainant’s case and give legal assistance”.  The reasons are as follows.

40.In the written record of this first call by the defendant to PW4 Pang, as recorded in para 6 of PW4 Pang’s witness statement dated 13 November 2020 (read out in court and reproduced below), there is no mention at all of the defendant saying she wanted to assist the complainant PW3 Lee by giving legal advice.  The relevant part of the statement is extracted from the defence’s written closing submissions thus:-

“58. ……

(2)  The relevant parts of Mr Pang’s statement regarding the 1^st Phone Call is extracted hereinbelow for the Court’s easy reference:-

“6. One day in April 2017, I received a call from Ms Lau. She said that as a lay member of MCHK’s Preliminary Investigation Committee (hereinafter called “PIC”), she knew a complaint was filed with MCHK by Mr LEE Soo-ghee (English name: Francis)  against Dr Wong for his professional misconduct, which had caused LEE Soo-ghee to suffer from Empty Nose Syndrome. Her role as a lay member enabled her to obtain Lee Soo-ghee’s personal particulars. At that time, Ms LAU expressed her empathy with LEE Soo-ghee, and thought that his case was very similar to the situation of the two help-seekers in Paragraphs 4 and 5 here in the above. However, in view of her role as an MCHK lay member, Ms LAU thought that it would be inappropriate for her to directly contact LEE Soo-ghee. Therefore, she wished that I could contact and help LEE Soo-ghee as a SoCO Community Organiser. I realised that LEE Soo-ghee was the third patient who I knew was suspected to be having Empty Nose Symptom after undergoing a nasal septum removal surgery performed by Dr WONG. As the number of such cases was on the rise, and Empty Nose Symptom could have detrimental effect on the patient’s daily life or even mental health I was eager to help them protect their interests. I also wished that through media reports about these cases, the public would know about the suspected medical negligence of Dr WONG, and people who were considering similar surgeries would know the revenant risks. Given Ms LAU’s experience in handling cases related to Empty Nose Symptom, I believed that having her meet LEE Soo-ghee and give him voluntary legal advice could help in gathering the available information. This would facilitate her analysis of the case and provision of assistance, which would in turn benefit help-seekers suffering from Empty Nose Symptom with regard to their compensation claims against Dr WONG. Therefore, I agreed to call LEE Soo-ghee to see if he was willing to accept SoCO’s assistance and seek voluntary legal advice.” (Emphasis and underline added). This was read to him in Court.”

41.Seen in this light, it is possible that 6 years after the event, PW4 Pang may have converted “his belief that the defendant could help” into “an assertion by the defendant that she wanted to help”.  It is therefore possible that it was PW4 Pang’s own idea to arrange the said meeting and he sought the consent of both PW3 Lee and later the defendant in having the meeting set up.

42.An interim conclusion therefore is that I am not satisfied to the requite standard that it was the defendant that caused PW4 Pang to arrange the said meeting.

43.But more important in this context is sub-issue (ii), namely, whether during the meeting the defendant solicited a retainer from PW3 Lee to pursue a civil claim against Dr Wong.  The only clear evidence of this came from PW3 Lee.  I am using a summary of the relevant part of the evidence contained in the prosecution’s written closing submissions:-

“12. ……

(t)  On 26 May 2017, PW3, PW4 and the Defendant met in the small conference room of FONGS’ office in Central;

(u)  PW3 brought a file of the relevant documents relating to his case (Exhibit P16);

(v)  The Defendant told PW3 that apart from being a lawyer of FONGS, she was also a panel member of the Medical Council. Hence, the Defendant knew that PW3 was lodging a complaint against Dr WONG with the Medical Council and obtained PW3’s information from the Medical Council;

(w)  The Defendant told PW3 that as she was a Council Member, she thought it was not convenient for her to contact PW3 directly and, as a result, she passed PW3’s contact details to PW4;

(x)  The Defendant also told PW3 that there were 3 other patients suffering from ENS and 2 of them were patients of Dr WONG. The said two patients had obtained legal aid to engage the Defendant as their legal representative in their civil lawsuit against Dr WONG;

(y)  PW3 told the Defendant and PW4 about the details of his case, including that (i)  Dr WONG suggested PW3 to undergo the Surgery upon examination by endoscopic images and when there was no improvement after prescribing PW3 with medicine for one week; (ii)  Dr WONG only appeared moment before the operation; and (iii)  Dr WONG failed to inform PW3 about the risk of having ENS before the Surgery;

(z)  After that, the Defendant told PW3 that his chance of winning a claim against Dr WONG was high as Dr WONG only took a week to assess PW3’s conditions before recommending the Surgery;

(aa)  The Defendant also explained to PW3 about the 3-year limitation period. The Defendant said that according to the date of the operation, which was conducted in 2011, it should be out of the 3-year limitation period. However, according to Dr HUNG who confirmed the diagnosis that PW3 suffered from ENS in around July 2014, it should be within the time limit for PW3 to initiate a litigation against Dr WONG;

(bb)  After calculating a ‘3-year timetable’, the Defendant told PW3, if he was to file a claim against Dr WONG, he had to be aware of the time and she would give him a quotation (which PW3 understood to mean the quotation relating the Defendant’s legal services for which fee would be charged). PW3 replied that he would wait for the quotation;

(cc)  The Defendant told PW3 that he was not required to apply for legal aid after he had mentioned to the Defendant his financial background;

(dd)  PW3 told the Defendant about his religious belief which could help him to cope with ENS and his ‘forgive and forget’ attitude towards Dr WONG;

(ee)  PW3 did not hear the Defendant telling him that, based on her knowledge, most of the ENS sufferers also suffered from depression and that, if PW3 needed to, he might seek treatment for depression;

(ff)  Although the Defendant never directly said she would represent the Defendant in the claim against Dr WONG, what the Defendant did and said in the meeting amounted to indirectly persuading PW3 to engage the Defendant;

(gg)  PW4 and the Defendant gave him their business name cards (Exhibit P11)  before conclusion of the meeting;

(hh)  PW3 left the file that he brought along to the meeting with the Defendant after the meeting;

(ii)  PW3 deemed PW4 as a facilitator for fixing the First Meeting. He did not think that the discussion in the First Meeting was a SOCO matter;

(jj)  PW3 did not think that he would have to pay for the First Meeting since there was no mentioning of any charge or fee for it;

(kk)  PW3’s mind had been changed from ‘forgive and forget’ to that he should ‘stand up and seek justice’ after the Defendant told him that there were 2 other victims who were suffering from ENS because of Dr WONG;” (emphasis by underlining added)

44.PW4 Pang’s evidence on this topic undermined PW3 Lee’s evidence somewhat.  A summary of PW4 Pang’s evidence taken from the prosecution’s written closing submissions is reproduced below:-

“29. ……

(dd)  On 26 May 2017, PW3, PW4 and the Defendant met in a small conference room of the office of FONGS;

(ee)  At the outset, the Defendant and PW3 exchanged their respectively business name cards;

(ff)  Afterwards, PW4 introduced to PW3 that the Defendant was a lay member of the Medical Council. When the Defendant handling complaints in the Medical Council, she noticed PW3’s case and she thought that it was worthy to assist PW3. Hence, the Defendant had provided PW3’s contact particulars for PW4 to contact PW3. PW4 told PW3 not to mind that they contacted PW3 in such manner;

(gg)  The Defendant said if someone knew that such means of contact was used to contact PW3 would make her in trouble. She said, if civil claim can be proceeded with her assistance, PW3 could treat it as if it was PW3 who contacted PW4 first, and it was PW4 who then referred PW3 to the Defendant, and it was under such circumstances that the First Meeting was arranged (‘Defendant’s Request 1’). PW4 recalled that PW3 did not disagree to the Defendant’s Request 1;

(hh)  During the meeting, the case of PW3 was discussed and the 3-year limitation period issued had been raised. The Defendant mentioned that there is a possibility that 3-year limitation period of the case could be expired, and decision has to be made whether PW3 would file the civil claim;

(ii)  There was discussion of filing a civil case. But PW4 had forgotten whether it was he or the Defendant who told PW3 that if PW3 decided to take civil action and if he could not apply legal aid, PW3 could consider engaging the Defendant to handle. At the time, PW3 still had not made up his mind to engage the Defendant as his lawyer to handle his case;

(jj)  During the meeting, PW4 had informed PW3 of his right to apply for legal aid. But given the business name card of PW3 showing that PW3 was holding a senior post in a large-scaled beauty salon company, PW4 told PW3 that in view of PW3’s financial resources, there would be no chance for PW3 to apply for legal aid;

(kk)  During the meeting, PW3 b[r]ought the documents relating to his ENS case and the Defendant should have read those documents (佢應該都係有睇過);

(ll)  PW4 recalled that the Defendant might have analyzed the case. However, he was not sure whether the Defendant did in fact advise on the merit of PW3’s case or PW3’s chance of success;

(mm)  During the cross examination, PW4 stated it is possible (meaning he has some recollection about it but not sure)  that:

(i)  At the beginning of the meeting, the Defendant might have told PW3 that she came across PW3’s case in the Medical Council and passed the information of PW3 to PW4 for contact, and then asked PW3 whether PW3 thought there is a problem. At that time, it is possible that PW3 replied “no problem”;

(ii)  It is possible that the Defendant had told PW3 if PW3 thought that there is problem, they would stop the meeting;

(iii)  It is possible that the Defendant had said to PW3 that he could have a treatment, if needed, in respect of the depression; and

(iv)  It is possible that PW3 held on to the documents he brought to the meeting rather than flipping through the documents as he orally told his story to PW4 and the Defendant;

(nn)  PW4 recalled that the Defendant might have analyzed the case. However, he was not sure whether the Defendant did in fact advise on the merit of PW3’s case or PW3’s chance of success;

(oo)  At the conclusion of the meeting, PW3 handed over the documents, which was taken by him to the meeting and related to his case, to the Defendant. Afterwards, PW4 had kept a copy of those documents (Exhibit P16)  as records;

(pp)  During the meeting, both PW4 and the Defendant had taken notes. PW4 confirmed that Exhibit P15 was the notes taken by him in the meeting;

(qq)  By reference to his notes, PW4 stated that the issue regarding timing of holding press conference had been mentioned. Moreover, PW3 did mention to them about the reason of conducting the surgery (ie ‘cannot breathe smoothy’), the impacts of him (ie ‘lost of concentration and memory’)  and his suffering from depression;

(rr)  PW3 told the Defendant and PW4 that he had strong religious belief, which could help him to deal with depression;

(ss)  The duration of the meeting was about 1.5 hours;

(tt)  PW3 was not required to pay any fee for the meeting;” (emphasis by underlining added)

45.It is PW4 Pang’s evidence that it was he who did the initial introduction.  It is also his evidence that it was he that advised PW3 Lee that the latter would have little chance of securing legal aid given his financial background.  Overall, it would appear that much of what PW3 Lee attributed to the defendant during that meeting was, according to PW4 Pang, actually done by the latter.

46.However, the most important aspects of PW4 Pang’s evidence are (a)  there was no mentioning of any quotation that was forthcoming from the defendant to PW3 Lee; and (b)  PW4 Pang was not sure whether the defendant did in fact advise on the merit of PW3 Lee’s case or his chance of success.

47.No doubt, the defendant in the witness box denied saying anything about quotation or chance of success during this meeting on 26 May 2017.

48.Should I accept PW3 Lee’s evidence about the defendant’s promise to give a quotation and the defendant’s saying he had a high chance of success in the claim against Dr Wong?  These pieces of evidence, if accepted, are, so says the prosecution, indicia of the defendant’s solicitation of a retainer from PW3 Lee to pursue a civil claim against Dr Wong.  Should I accept these pieces of evidence despite the undermining of the same by PW4 Pang’s evidence in one way or the other, and in light of the following episodes of events which happened shortly after the meeting on 26 May 2017, a Friday?

49.The events started with a WhatsApp message sent by PW3 Lee to the defendant one week after the meeting (from D7A):

50.On the face of it, by PW3 Lee asking “when”, and not “whether”, it points to the direction that the subject of quotation was indeed raised in the meeting of 26 May 2017. However, for some reason, the defendant never responded to this WhatsApp message.

51.With no response from the defendant, PW3 Lee turned to PW4 Pang with the following WhatsApp message sent on the same day and he got a reply too (from D6A):

Translation:

“Hi Tim, since the lawyer, Ms Lau, didn’t reply, (I)  wonder if she would follow up on my case?

I will get back to you later after asking Ms Lau”

52.Later the same day, PW3 Lee sent another WhatsApp message to the defendant (from D7A):

53.The defendant replied to PW3 Lee on the next day, following which there was a return-reply (from D7A):

54.This series of 3 WhatsApp messages between PW3 Lee and the defendant could either mean there was a misunderstanding of communications between the two of them during the meeting of 26 May 2017 or there was an attempt by the defendant to avoid a written record of her intention to tout as per the prosecution case.  Either is possible.

55.However, what is clear from the WhatsApp messages is that the 3-year limitation period had indeed been discussed at the meeting on 26 May 2017 and that it could expire in 2 months’ time, assuming everything else such as matters of proof would be in order.  A second thing which was also clear is that it was PW3 Lee who was under pressure of time, and not the defendant.

56.There is also the strange and unexplained factor that PW3 Lee could not remember anything about a second 3-party meeting of 15 June 2017 at the offices of Fongs during which, according to PW4 Pang’s and the defendant’s testimonies, PW3 Lee decided to engage the defendant as a paid lawyer.

57.Everything considered, I consider that as regards sub-issue (ii), namely, whether during the meeting of 26 May 2017 the defendant solicited a retainer from PW3 Lee to pursue a civil claim against Dr Wong, I cannot safely rely on PW3 Lee’s evidence.

58.What that effectively means is, I do not find that Particular (b)  of the Charge has been proved.

59.But that is of course not the end of the story.  This is because Particulars (a)  and (c), as facts in themselves, are undisputed and have been proved to the required standard.  It is also clear but for the taking place of the facts of Particular (a), the facts of Particular (c)  would not have happened.  One could without embarrassment say that the facts of Particular (a)  led to the facts of Particular (c), albeit through a circuitous route[1]; and they were close in time to one another, within no more than 8 weeks.  There was a clear causal relationship between the two.

60.The next topic I will need to examine carefully is whether the defendant’s evidence of why she disclosed to PW4 Pang was or might be true.

61.In this respect, I will reproduce the relevant part of her evidence as summarized in the prosecution’s written closing submissions below:-

“41. ……

The PIC Meeting on 11 April 2017

(x)  The Defendant did not read Exhibit P5 received by her on 5 April 2017 before attending the PIC Meeting;

(y)  In the meeting, when the Defendant knew of LEE’s Complaint against Dr WONG (Case No. 20), the Defendant declared that she was representing another patient against Dr WONG and thus recused herself from deliberation of LEE’s Complaint;

(z)  In her examination in chief, the Defendant said when the chairman of the PIC said ‘the next case is Dr WONG’s case’ (下一單係黃醫生), the Defendant saw the full name of Dr WONG and could confirm it was the Dr WONG she was dealing with in another case, she made the declaration and recused herself;

(aa)  During her cross-examination, the Defendant changed her evidence and said she would check further if Dr WONG was an ENT doctor before making declaration and recusing herself. When the Judge asked the Defendant how did she know Dr WONG was the Dr WONG she was dealing with in two other cases, the Defendant said she recognised Dr WONG’s address from the letter to Dr WONG from the Medical Council (see Exhibit P5/8);

(bb)  Not only that, when the Defendant was cross-examined on why she continued to read Exhibit P5 (her evidence was that she had read pages 1-6 of Exhibit P5 (see Exhibit P5/8-13)  in the PIC Meeting)  knowing she should have nothing to do with LEE’s Complaint anymore upon her recusal, the Defendant changed her evidence yet again and said she had to read those pages to confirm whether Dr WONG was the Dr WONG she was dealing with in two other cases;

(cc)  When it was put to the Defendant that, at the time of the PIC Meeting, after the Defendant’s recusal, the Defendant had nothing to do with LEE’s Complaint and should no longer be involved in it anymore, the Defendant was evasive and finally confirmed she should not be involved in LEE’s Complaint anymore as a lay Council Member. When asked whether she had any role other than a lay Council Member at the time, the Defendant gave an even more illogical and evasive answer which she retracted immediately upon realising it would harm her case (that she never thought of representing PW3 as a lawyer in his claim against Dr WONG): ‘I did not have any other role, the only possibility is that I was a lawyer…sorry, no’ (我冇其他角色，唯一可能就係，我係一個律師…sorry，我個答案係冇);

(dd)  The Defendant insisted that, despite having gone through the first 6 pages of Exhibit P5, she did not pay attention and was not aware of the date of the Surgery;

(ee)  The Defendant agreed that Exhibit P5 had nothing to do with her after her recusal and its sole purpose was for the Defendant to consider LEE’s Complaint as a lay Council Member of the PIC;

(ff)  After the PIC Meeting, the Defendant took Exhibit P5 home along and did not return it to the Medical Council and she said it was a ‘normal practice’ for her to do so;

The Defendant’s ‘reason’ for reading Exhibit P5 at home

(gg)  A few days after the PIC Meeting, the Defendant received the psychiatrist’s consultation notes about Patient WONG which said that Patient WONG was having suicidal thought. The Defendant said she recalled seeing something similar (類似呢方面嘅講法)  in Exhibit P5 and therefore she took Exhibit P5 out to have a look;

(hh)  The Defendant was cross-examined about Exhibit P5 did not contain anything that would make her feel that PW3 had suicidal thought and that her excuse for taking out Exhibit P5 and read it was a lie. In this connection, when she was asked which part of Exhibit P5 would make her feel that PW3 was also having suicidal thought, the Defendant said page 46 of Exhibit P5 (ie Exhibit P5/53), in particular where PW3 said ‘I have heard people dying from lingering illness bought on by ENS and I felt really scared although I tried to be positive in life!’ and page 5 of Exhibit P5 (ie Exhibit P5/13)  which showed to the Defendant that the symptoms suffered by PW3 was similar to those suffered by Patient WONG;

The Defendant reading of Exhibit P5 at home

(ii)  The Defendant claimed, from reading the correspondence (ie PW3’s complaint letter and the email correspondence from PW3 to the Medical Council)  in Exhibit P5 at home, she felt that PW3 was probably suffering from very serious depression and had suicidal thought;

(jj)  From reading page 6 of Exhibit P5 (ie Exhibit P5/13), the Defendant came to know that ‘an ENS patient killed a doctor’ and ‘an ENS patient took his own life’ which made her very worried;

(kk)  The Defendant did not read the medical records in Exhibit P5 in details as it was not her concern but she conducted online research by using ‘ENS’ and ‘suicide’ as the search words and saw online materials (Exhibit D19)  which made her ‘very scared and very worried about ENS patients’;

(ll)  In respect of PW3’s 4 requests set out at the end of his complaint letter dated 3 June 2015 (Exhibit P5/13), the Defendant said she thought SOCO could help PW3 with them;

(mm)  The Defendant claimed that she did not pay attention and was not aware of the date of the Surgery;

Telephone conversation between the Defendant and PW4 and the WhatsApp message sent by the Defendant to PW4 on 27 April 2017 (see also paragraphs 15 and 16 of the Admitted Facts (Exhibit P1))

(nn)  The Defendant called PW4 on 27 April 2017 and the duration of the call was only around 2 minutes;

(oo)  The Defendant told PW4 that she came to know one more ENS case from the Medical Council. She thought this patient was in a really bad situation and having serious depression. The Defendant asked PW4 to see how he could help the patient. The Defendant further told PW4 that she would give him the patient’s information so that PW4 could contact PW3. PW4 replied ‘OK’ without asking her any question or having any reservation about contacting PW3 in such manner;”

62.I have taken note of all the demurrers that have been levelled by the prosecution against the defendant’s above-cited evidence summary.  I am of the view that what the defendant testified about the reason why she read again P5 at home, this time in more detail, may be true: ie she might possibly have read the psychiatrist’s consultation notes about Patient Wong and that might have led her to read P5 at home in closer detail.

63.For whatever the reason it was that she came to read P5, I am satisfied beyond a reasonable doubt that she did read P5 in more detail while at home.

64.There is one aspect of the defendant’s evidence which has not been summarized by the prosecution; and that is after the defendant had gone through in some detail P5 at home, and before she called PW4 Pang to make the first disclosure, she went about doing some online research on “ENS” and “suicide”.  The following extract is taken from the defence written closing submissions to fill this gap:-

“38. The Court will recall that around this time, Ms Lau received Mr Wong’s medical records and medical notes which referred to his suicidal thoughts (Day 9, 9:54 am). One must remember that at this stage, Ms Lau only has encountered very few ENS cases. There was nothing extraordinary that Ms Lau, having seen Mr Wong’s medical notes, related what she saw to other ENS cases. This was when she related it to Mr Lee’s case as that was, by happenstance, another ENS case that she has encountered (Day 9, 10:59 am).

39. It was because of this connection she made the decision to look into Mr Lee’s file (Day 9, 10:58 am).

40. Instead, what she saw in the file was “rare”, since it contained a full two page complaint letter from Mr Lee addressed to the chairman of PIC (Day 9, 11:05 am)  and she had never seen such kind of complaint letter before.

41. The Court will recall the following documents in the file, starting with the contents of the letter [Exh.P4/p.3-4] as extracted hereinbelow:-

…

42. …

43. …

44. Instead, what she saw in the file were words of depression / desperation from Mr Lee, for example the email from Mr Lee to Dr Wong which was forwarded to MC on 3/3/15 [Exh.P5/p.52-53]:-

45. In particular, the email from Mr Lee to MC on 30/4/15 [Exh.P5/p.55] referred to the case of Brett Helling’s suicide and also the “kill the doctors” articles.

46. And also the email from Mr Lee to MC on 1/6/15 [Exh.P5/p.56]:-

47. At that time, Ms Lau were unaware of these death and killing. So she searched online and found the articles (shown below)  – anyone looking at them would be shocked.

48. To Ms Lau’s mind: “First of all, I felt the wordings this complaint used was very strong. Same time, the depression that he had probably very serious. And by looking here, I found that mainly he had 4 requests. 2 things I didn't know before, the ENS patient killed the doctor, and also one committing suicide. The whole letter made me very worried.” (Day 9, 11:23 am). It must be remembered that this was the time when she was dealing with Mr Wong’s case, the depression, the killing, the suicide – all fits – and would clearly be matters going through her mind at this very point in time.

A7. Ms Lau’s online research after coming across Mr Lee’s case.

49. There were numerous articles and comments on the internet which discussed ENS sufferers committing or wanting to commit suicide. In this regard, Ms Lau’s evidence is supported by [Exh.P19A-C].

50. For example [Exh.P19A] – the “kill the doctors” article is truly disturbing.

…

51. Exh.19C is just one example of an online forum that contained hundreds of comments relating to suicide or suicidal thoughts caused by ENS running from 2009 to 2019.

52. The Court will also recall the very upsetting case of Brett Helling’s suicide. When parts of that article was read to Ms Lau in Court, she still had tears in her eyes. These were emotions that anyone reading such article would encounter, and would have strongly influenced Ms Lau’s actions. The Court will recall the extracts:- [Exh.P19D]

53. This was not the first time she read the article. But the impact it had on her (as a mother)  is clearly deep. Ms Lau was “Very scared and very worried about ENS patients, including this complainant Mr Lee because of his depression seems to be very serious. In his letter, he mentioned that he had depression every day and it is aggravating day by day.” (Day 9, 12:21 pm). But to her mind, PIC was unable to assist Mr Lee in his demands. On the other hand, SOCO was able to help him at least on 3 of them (Day 9, 12:51 pm). She was anxious, and SOCO and Mr Pang was the only person Ms Lau knew who might be able to help him (Day 9, 12:59 pm). Mr Pang had arranged for interview for ENS sufferers before to raise public awareness and he had a big network of doctors and social workers. To Ms Lau’s mind, it made sense for her to get in touch with SOCO about Mr Lee.”

65.The defence submitted that it was after all of the above and in such context that the defendant made the decision to call PW4 Pang (the disclosure call)  and sent the 1^st text (the disclosure WhatsApp message)  to PW4 Pang (both on 27 April 2017, according to the defendant).

66.I regard it as possible those were the reasons why the defendant disclosed to PW4 Pang in the way she did.

67.Next I will have to apply the law on to the facts as I found them to be.

68.As previously noted, there are 5 elements in the offence of Misconduct of Public Office.  I shall deal with them one by one.

Element 1: the accused is a public official

69.In HKSAR v Siao Chi Yung, Weslie and Others [2023] 1 HKLRD 653, Wong J referred to HKSAR v Wong Lin Kay [2012] 15 HKCFAR 185 and said:

“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?

92. Ribeiro PJ 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 of such powers or discretion, etc.” (footnote omitted and emphasis added)

70.I note that in this case, there has never been any dispute that the defendant was a public official.

71.According to paras 1-5 of the Admitted Facts (P1)  and the Medical Registration Ordinance, Cap 161 (“MRO”), that operated at the time:

(i)  The Medical Council is an independent statutory body established by MRO and its major functions include handling complaints lodged by members of the public. At all material times, the Medical Council comprised total of 28 Council Members, 4 of whom were lay members appointed by the Secretary for Food and Health with powers delegated by the Chief Executive.

(ii)  Pursuant to section 20BA(2)  the MRO, the Medical Council may establish a PIC to make preliminary investigations into complaints lodged with the Medical Council. According to section 20T of the MRO, a PIC has the following functions: (a)  to make preliminary investigations into complaints or information touching any matter that may be inquired into by an inquiry panel or heard by the Health Committee and to give advice on the matter to any registered medical practitioner; (b)  to recommendations to the Medical Council for the holding of an inquiry under section 21 of the MRO; (c)  to make recommendations to the Health Committee of the Medical Council for conducting a hearing; and (d)  to make preliminary investigations upon a referral by the Education and Accreditation Committee of the Medical Council.

(iii)  At all material times, a PIC comprised 7 members, 3 of whom being Council Members and 4 non-Council Members. Of the 3 Council Members, 1 is chosen from the 4 lay Council Members. The quorum for a PIC meeting was 3 and at least 1 of them should be the lay Council Member.

(iv)  Between 24 January 2012 and 23 January 2015, the defendant was appointed as a lay member of the Medical Council by the Secretary for Food and Health under the powers conferred on the Chief Executive by section 3(2)(g)  of the MRO (see also P2); and

(v)  Between 24 January 2015 and 23 January 2018, the defendant was re-appointed as a lay member of the Medical Council by the Secretary for Food and Health under the powers conferred on the Chief Executive by section 3(2)(g)  of the MRO (see also P3).

72.The purpose of having lay Council members in the Medical Council is to enhance public accountability and credibility of the Medical Council in discharging its self-regulatory function to safeguard public interest (see paragraph 11 of LC Paper No CB(2)  1075/17-18 Report of the Bills Committee on Medical Registration (Amendment)  Bill 2017).

73.It is clear that not only was the defendant a public official, she played an important role as a lay Council Member of the Medical Council.

Element 2: in the course of or in relation to his public office

74.In Sin Kam Wah, supra, the Court of Final Appeal held that:

“47. … To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. …” (emphasis added)

75.Further, in HKSAR v Hui Rafael Junior & Others [2017] 20 HKCFAR 264, the Court of Final Appeal held that:

“47. For behaviour to qualify as relevant misconduct it may, but need not, involve a contravention of a statute. It must, however, have the necessary link to official powers, duties or responsibilities. Yet, not every breach of the law by a person when he or she is a public official is in the course of or in relation to the office held. In Sin Kam Wah v HKSAR the relevant conduct was not in the performance of the police officer’s duties, but was found to have such a relation with his public office as to bring that office into disrepute. In R v Quach Redlich JA, with whom the other members of the Victorian Court of Appeal concurred, approved Professor Finn’s statement that “the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position”, and said:

“In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where the misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character.”” (footnote omitted and emphasis added)

76.In this respect, the prosecution submitted in their written closing submissions:-

“57. In the present case, there is no dispute that the Defendant obtained the personal particulars of PW3 and the details of the Complaint by virtue of her public office as a Council Member and disclosed them to PW4 without prior consent of PW3 or the Medical Council. In making the Disclosure, the Defendant abused her official position and what she did was clearly inconsistent with her responsibilities to protect personal data of complainants and preserve confidentiality of information entrusted with her by the Medical Council.

58. It is respectfully submitted that the Disclosure is a misconduct of a serious nature on its own. However, the Defendant did more than just that. The Defendant also caused PW4 to (a)  contact PW3 using the information she obtained by virtue of her public office and disclosed in breach of her public duty and (b)  … after the First Meeting with PW3 which was arranged using the Information, the Defendant went on to accept instructions via FONGS and became a paid legal representative to act for PW3, a ENS suffering client she would not have known of but for her public office as a Council Member, in the Claim. There is no doubt that the Defendant’s misconduct had the necessary link to her official powers, duties or responsibilities as a Council Member and would bring her public office into disrepute.” (emphasis supplied)

77.Without at this stage making a decision as to whether the disclosure is a misconduct of a serious nature on its own, I accept the disclosure is a misconduct which had the necessary link to her official powers, duties or responsibilities, and had a relevant relationship with her public office.

78.Indeed, in relation to the disclosure, the defence has not argued that it did not have such a link or such a relationship with her official powers, duties, responsibilities or her public office, as the case may be.

79.As regards whether the disclosure alone will bring her public office into disrepute, I will leave that analysis until I reach Element 5, namely, seriousness, below.

80.In relation to Particular (c)  of the Charge, the issue is more complex.  It is clear from the Charge that prosecution pleaded Particulars (a)  and (c)  as individual acts of misconduct (disclosure and acceptance respectively).  Defence on the other hand unilaterally attributed to the prosecution that only Particular (a)  was a “conduct” and that Particular (c)  was an underlying purpose (see para 175 of defence’s written closing submissions).

81.It might be the case that the prosecution at one time conceded that if only Particular (b)  or (c)  was proved without proof of Particular (a), then the offence would not be made out.  But that was done in the context of two surrounding factors.  First, there was no dispute that, as facts, Particular (a)  had taken place.  Second, in the factual matrix of this case, Particular (a)  was an intermediate step through which Particular (c)  occurred, although one may suppose, if set in an absolute vacuum, Particular (c), as facts, could still happen without the happening of Particular (a), ie without the disclosure to PW4 Pang, and his subsequent participation as an innocent agent in the accomplishment of Particular (c).  This hypothetical scenario could happen, say, by the defendant directly contacting PW3 Lee and accepting instructions to act for him in the civil claim.  But that is not what happened here.

82.Whatever may have been the position in relation to the status of Particular (c)  of the Charge, whether a “conduct” or an “underlying purpose”, I believe the defence will still argue along the line of para 177 of their written closing submissions. That is, “if the [defendant] never had the intention [to tout for business] when she disclosed the information, then whatever may have occurred subsequently (ie, after the disclosure of the information)  as a happenstance cannot retrospectively supply the mens rea or seriousness of the act of disclosure.  The matter [may] be tested this way, assuming the facts of this case was that [the defendant], having come across Mr Lee’s case, got in touch with SOCO to assist Mr Lee.  SOCO arranged a meeting, and thereafter, [the defendant] held numerous meetings with Mr Lee and assisted him completely free of charge as a SOCO help seeker for the next 5 years.  It is difficult to see how [the defendant]’s conduct could be regarded as sufficiently serious or calculated to harm public interest to amount to misconduct.  The fact that 5 years, Mr Lee suddenly decided to engage [the defendant] officially as his lawyer would not retrospective[ly] alter what occurred before.  The extent of the “time gap” (ie the gap between disclosure of information and formal engagement)  in this respect is irrelevant, as long as at the time of disclosure [the defendant] did not have any improper underlying purpose in mind, there is no misconduct and subsequent events (which [the defendant] did not originally intend)  cannot retrospectively be used to satisfy either the mens rea or the seriousness elements”.

83.Leaving for the moment whether an improper motive was necessary to satisfy the “mens rea” element (as opposed to the “seriousness” element)  in relation to the disclosure misconduct to make it culpable, on the defence submission that the time gap is irrelevant, I have two comments.  First, however long time has elapsed, the character of the initial source of the information does not change.  To this extent, yes the time gap is irrelevant.  Second, the longer the time gap, the more likely it is that the defendant might have other independent opportunities to get to meet PW3 Lee (again)  from some other quarters or on other occasions. If such further encounter(s)  did happen before PW3 Lee formally engaged the defendant as a paid lawyer, it could perhaps be argued that it/they broke the chain of causation as to how the defendant came to act for PW3 Lee.  In this sense, the time gap is relevant.

84.As it is, in this case, the time gap between the defendant first disclosing the personal particulars of PW3 Lee (on or about 27 April 2017)  to PW4 Pang and her accepting instructions to act for PW3 Lee (on or about 15 June 2017)  spanned no more than 8 weeks.  There was a clear chain of causation of between the two despite the circuitous route in between.  There was no break in the chain of causation.  PW4 Pang played an important role of a conduit to make the acceptance happen.

85.In saying the above, I am acutely aware that there was common evidence from PW4 Pang and the defendant that PW3 Lee did give his ex post facto consent during the meeting on 26 May 2017 to his being approached in this way.  However, even this does not change the character of how the defendant obtained the information and passed it on to PW4 Pang in the first place.

86.Implicit in the defence argument in para 175 of their written closing submissions is that the acceptance, even if it was a “conduct”, did not relate to the defendant’s public office.  I beg to disagree.  The acceptance of instructions from PW3 Lee has as its background how the defendant first came to know of the existence of PW3 Lee and ultimately her getting to meet him.  In other words, implicit in Particular (c)  of the Charge, the prosecution is saying that the defendant accepted instructions from PW3 Lee to act for him in a civil claim against Dr Wong by (x)  using the information she first obtained from the Medical Council PIC file (P5)  and/or (y)  disclosing it to PW4 Pang (the latter, when read with Particular (a)).

87.In short, the defendant would not have been able to meet with PW3 Lee as a potential client but for her privileged access to P5 in her capacity as a lay member of the Medical Council.  Seen in this light, the defendant’s acceptance of instructions from PW3 Lee is no less related to her public office than Sin Kam Wah’s “acceptance of sexual services from women over whom he knew the second appellant was exercising control, direction or influence” (taken from para 54 of Sin Kam Wah, supra)  was related to his; nor is the defendant’s said acceptance less related to her public office than Chapman’s (a prison officer)  selling of stories related to a high-profile prisoner to a journalist was related to his (see R v Chapman & Ors [2015] 2 Cr App R 10).

88.I therefore make the interim conclusion that both Particular (a)  and Particular (c)  of the Charge are independently misconduct in relation to the defendant’s public office.  If I am wrong on my assessment of Particular (c), in any event, when Particular (a)  and Particular (c)  are put together, then the whole course of conduct amounts to misconduct in relation to her public office.

89.By way of transition to a discussion of the next element of the offence, I would quote below the prosecution’s characterization of the act of disclosure by the defendant (from para 57 of the prosecution’s written closing submissions):

“57. …

In making the Disclosure, the Defendant abused her official position and what she did was clearly inconsistent with her responsibilities to protect personal data of complainants and preserve confidentiality of information entrusted with her by the Medical Council.” (emphasis removed)

Element 3: wilfully misconducts himself by act or omission

90.The Court of Final Appeal in Sin Kam Wah, supra, held that:

“46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.” (emphasis added)

91.Interestingly, the Hong Kong Specimen Directions in Jury Trials Volume 2: 2020 Revision of Selected Topics (amended February 2022)  at 118-4, the relevant direction is this:-

“4. If you are sure that the [act alleged / failure to act as alleged] took place in the course of, or in relation to, the responsibilities of the defendant’s office, the next issue is whether in [acting as he did / failing to act as alleged], he wilfully misconducted himself. By wilful misconduct I mean deliberately doing something which is wrong, knowing it to be wrong or wilfully disregarding the risk that his conduct was wrong.” (underline added)

92.There then immediately followed a footnote 7 which says:-

“7 Sin Kam Wah at [46] uses the phrase “knew that [it] was unlawful”. In A-G’s Reference (No 3 of 2003) [[2004] Cr App R 23] at [28], the Court approved the following definition: “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”. Since this latter definition has the advantage that it does not leave the jury to decide what is meant by “unlawful” and removes the need for a further direction that ignorance of the law is no excuse, this specimen uses the latter phrase.”

93.I believe the central message there is that the conduct (whether it be act or omission)  must be wrong, and that the accused knew that it was wrong or wilfully disregarded the risk that it was wrong.

94.In any event, in the present case, as regards the disclosure aspect, I found there is a clear breach of the Data Protection Principle.  There is no dispute that the defendant knew that her conduct contravened the Data Protection Principle and was therefore unlawful[2].

95.In relation to the acceptance of instructions aspect (standing alone)  but with the source of the potential client clearly in mind, as a lawyer, she would at least be disregarding the risk that it was wrong.  If the acceptance aspect is considered with the disclosure aspect, the defendant would know that it was unlawful because the acceptance flowed from an unlawful disclosure.

96.As this element deals with the mens rea aspect, I ought to deal with one important issue which has cropped up in the trial.  It is whether an improper motive is also an additional mens rea element in the factual matrix of this case.  This is something separate from improper motive being a relevant consideration in the analysis on the “seriousness” element for which I believe there is no dispute between the parties.

97.First of all, I think one needs to classify what the misconduct(s)  is/are in this case. According to the prosecution, and in light of my findings, there are two.  One is the disclosure; the other acceptance of instructions.

98.For the disclosure, the prosecution characterized it as “abus[ing] her official position and what she did was clearly inconsistent with her responsibilities to protect personal data of complainants and preserve confidentiality of information entrusted with her by the Medical Council.”

99.Whilst it could be classified as “positively abusing her position” as the defence would like me to think, it could also be classified as failure to uphold the duty of protecting the personal data of complainants and to preserve confidentiality of information entrusted with her by the Medical Council.  I believe the latter is the correct classification.

100.While I would certainly wish to avoid using such terms as “nonfeasance” and “misfeasance” for fear of confusing anyone, the disclosure aspect of this case is a clear case of breach of duty by failure to act.  As such, it is a case not dissimilar to HKSAR v So Ping Chi [2019] 1 HKLRD 140.

101.I reproduce below the prosecution’s summary of the salient features of So Ping Chi both at first instance and in the Court of Appeal:

“87. In HKSAR v So Ping Chi DCCC 338/2015 (PAN 21), the accused was the General Manager and Principal Surveyor of Ships of the Marine Department responsible for the enforcement of legislation relating to local vessel safety. At the material times, the accused instructed his subordinates not to enforce the new legislation which introduced a requirement that children’s lifejackets be kept on board vessels in use or operation and failed therefore to rescind the aforesaid instruction.

88. In convicting the accused of the offence of misconduct in public office, the trial judge in So Ping Chi held, inter alia, that: (a)  the accused’s issuance of the aforesaid instruction was wilful, that is deliberate and not inadvertent, and there was no evidence as to why he did not rescind it; (b)  it was not necessary for the accused’s misconduct to be accompanied by a dishonest, corrupt, malicious motive to be sufficiently serious to warrant criminal sanction (‘Finding (b)’); (c)  the accused’s departure from his duty to enforce the new legislation was not merely negligent but ‘amounted to an affront to the standing of the public office held’ with potentially serious consequences; and (d)  the accused’s contention that he issued the aforesaid instruction to appease industry representatives and ensure the ‘smooth implementation’ of the new legislation did not constitute a reasonable excuse or circumstances in the circumstances.

89. In HKSAR v So Ping Chi, the accused was granted leave to appeal against conviction and sentence and one of the grounds of appeal (ie Ground 7)  was that the trial judge’s Finding (b)  was wrong in law (see paragraph 30 of the Court of Appeal Judgment). In dismissing the aforesaid ground of appeal, the Court of Appeal said:

“38. We shall deal first with the more fundamental complaint made in Ground 7 of the appellant’s grounds of appeal that, in the absence of a dishonest, corrupt or malicious motive, which the judge accepted, the seriousness of his conduct was not such as to call for criminal sanction. The argument put forward on behalf of the appellant is that, absent a dishonest, corrupt or malicious motive, the appellant’s conduct in issuing the non-enforcement instruction could not be culpable.

39. However, we think this is a misreading of what Sir Anthony Mason had to say in Shum Kwok Sher where, at paragraphs 82-83, he was addressing the question of the mental element of the offence. In so doing, he distinguished between the various forms of misconduct that the offence may take, which he described as:

“…ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive [ie malfeasance], to oppression.”

We should nonetheless emphasise that misconduct does not become culpable simply because it can be “pigeon-holed” into one of these categories, which Sir Anthony Mason explained were not intended to be exhaustive. Rather, it is because the misconduct possesses features which warrant it being regarded as culpable. However, what these features are will vary according to the form that the misconduct takes.

40. In misfeasance of duty cases, a public officer will normally be exercising a lawful power or authority when he performs the impugned act, which is not in breach of his duty. Accordingly, it must be shown that he has otherwise misconducted himself in the performance of that act, because the act, by itself, will not amount to misconduct. Evidence is therefore needed to prove that what on its face is the lawful performance by a public officer of his duty is in fact misconduct. That may be demonstrated by evidence of impropriety in respect of the means by which the public officer carries out his duty, or by evidence or inference as to the motive which underlies its performance.

41. However, for cases of nonfeasance of duty, all that is generally required to be proved is a wilful intent, accompanied by the absence of a reasonable excuse or justification, in respect of misconduct that is serious. The reason for this is that the public officer, by not performing his duty, is already shown to have misconducted himself. However, this, by itself, will not be enough: what makes his proven misconduct culpable is that it is both wilful and serious. And by “wilful”, Sir Anthony Mason made clear that the non-performance had to be both voluntarily and deliberately done.

…

43. Unlike Boulanger, which involved an allegation of misfeasance, the appellant before us had misconducted himself by deliberately not performing his public duty when he issued and failed to rescind the non-enforcement instruction, knowing that he was substituting his own decision, without authority, approval or legal advice, for the legislative intention. This seems to us to be a clear case of nonfeasance, or breach of duty: it was not a misfeasance case involving the lawful exercise of a power or authority, but with an impure or improper motive. Mr Marash’s reliance on the passage in Shum Kwok Sher in this regard is, with respect, misconceived.” (footnote omitted and emphasis added)” (footnote omitted)

102.Hence, from the underlined sentences in the above extract, it is clear that the disclosure aspect of the present case belongs to the category of breach of duty cases, for which no improper motive needs to be proved as part of the mens rea.  In this connection, I found the defendant’s act of disclosure a deliberate act; that it was a clear knowing breach of the Data Protection Principle under Cap 486 as the defendant herself acknowledged in the witness box.

103.Now, how about the acceptance of instructions aspect?  This is clearly something positive not unlike the acceptance of sexual services in the Sin Kam Wah case.  If the acceptance of instructions aspect has to be pigeon-holed into one of the cliché categories, then I would put it under the “acting in excess of power or authority” category for which a dishonest, corrupt or malicious motive is required, as per para 81 of Shum Kwok Sher, supra (this is what Macrae VP termed “malfeasance” in para 39 of So Ping Chi, supra). Just as there was clear evidence of corruption in the Sin Kam Wah case, here there is clear and agreed evidence of the defendant doing it for personal benefits which would supply the necessary improper motive.

104.So under both aspects, the prosecution should have no more hurdle to cross as far as this element goes.

Element 4: without reasonable excuse or justification

105.The burden is on the prosecution to disprove reasonable excuse and justification.

Disclosure aspect

106.I have already found for the defendant that she may have read Patient Wong’s consultation notes suggesting he had suicidal tendencies and that might have led her to re-visit P5 in more detail.

107.I found as a fact that she read P5 at home.

108.I found that the fact of reading P5 might have led her to do internet research which ultimately might have led her to disclose to PW4 Pang the particularized information she obtained from P5 concerning PW3 Lee.

109.Defence submitted I should adopt an objective standard and consider reasonableness in light of the surrounding circumstances.  I agree.

110.Defence also submitted that I should decide whether the defendant’s conduct of making the disclosure was motivated by a desire to get SOCO to assist PW3 Lee (in this context, I would consider both the “suicide” aspect and the “raise public awareness on ENS” aspect), and if so, whether in the context of this case, it amounted to “reasonable excuse”.

111.First of all, I found for the benefit of the defendant that she might have genuinely suspected PW3 Lee might also have suicidal tendencies after reading Patient’s Wong’s consultation notes.

112.I also accept for the benefit of the defendant that her conduct of making the disclosure might have been motivated by a desire to get SOCO to assist PW3 Lee.

113.However, what I do not accept as reasonable were:-

(a)  Her revisiting P5 at home after she had already recused herself from handling PW3 Lee’s complaint against Dr Wong: she should have nothing further to do with P5; and

(b)  Her disclosure to PW4 Pang even in light of what might have happened and what she might be thinking about.

114.If she was genuinely concerned about PW3 Lee’s well-being after reading the consultation notes of Patient Wong, as I found her to possibly be, the only proper and reasonable thing to do was to approach and seek assistance from the Medical Council to which the confidential information belonged, and to discuss possible resolution strategies; and not to privately go through PW3 Lee’s information in P5.

115.And even after going through that information and doing the internet research, it still would not be too late to approach the Medical Council to do the same.  Instead, the defendant chose to disclose the information to someone who has no right to have access to such information.

116.These decisions of the defendant to read P5 at home, and then to disclose the information contained therein to PW4 Pang is a serious infringement of the privacy rights of PW3 Lee and a serious breach of the duty to preserve confidentiality of information entrusted with her by the Medical Council for which there could be no reasonable excuse or justification especially not for a lawyer with so many years’ professional experience and a lay member of the Medical Council of so many years’ standing.

117.I ruled therefore that the prosecution has successfully negated reasonable excuse and justification as far as the disclosure aspect goes.

Acceptance of instructions aspect

118.Defence has not made any particular submission on this aspect.  In my judgment, there could be no reasonable excuse or justification for accepting instructions from someone who the defendant knew was sourced from a file she could only have obtained access to in her capacity as a lay member of the Medical Council.  In making this judgment, I have not ignored the fact that PW3 Lee has given ex post facto consent to the way he was approached; however, this does not change the character of the origin of the information.  If an ex post facto consent could be allowed to constitute a reasonable excuse or justification in this respect, it would open a flood gate to improper use of confidential information in order to elicit business.

119.The prosecution has proved this element of the offence.

Element 5: such misconduct is serious

120.The prosecution makes the following submissions on general principles (taken from their written closing submissions)  which, with respect, must be correct:

“94. It is apt to refer to the question posed by Sir Anthony Mason in Shum Kwok Sher as to how serious the misconduct must be:

‘86. … Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.’ (emphasis added)

95. Subsequently, in Chan Tak Ming [[2010] 13 HKCFAR 745], the Court of Final Appeal, in answering the certified question of law ‘is anything which is not trivial to be regarded as serious for the purposes of that definition?’, said:

‘27. Turning to the third certified question of law, it should be answered thus. As the fifth item of the Sin Kam Wah re-formulation underlines, trivial misconduct will of course not support a charge of misconduct in public office. That said, the question is whether the offence is serious having regard to – as stated in that item – the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the extent of the departure from those responsibilities. It is in that way – and not by saying that it must be sufficiently serious since it is not trivial – that one goes about deciding whether the necessary seriousness exists.’ (emphasis added)

Likely Consequence

96. It is necessary to note that the factors mentioned in Shum Kwok Sher are not meant to be exhaustive. As pointed out by Chan ACJ in HKSAR v Ho Hung Kwan Michael [2013] 16 HKCFAR 525 (PAN 23), the consequences of the misconduct are also relevant when considering whether the misconduct is serious enough to merit criminal sanction (see paragraphs 29 to 30 of the judgment).

97. In HKSAR v Chu King Kwok HCMA 855/2009 (PAN 24), the accused was a taxation officer at the Inland Revenue Department. Between 1 April 2004 and 16 November 2006, he copied (but never used or disclosed)  the personal data of 18,300 taxpayers without the authority of the Commissioner of Inland Revenue. The trial magistrate acquitted the accused on the basis that the accused’s misconduct was not ‘serious’. The prosecution appealed by way of case stated pursuant to section 105 of the Magistrates Ordinance, Cap 227.

98. In Chu King Kwok, Beeson J (as she then was)  answered the question of law ‘in determining whether a public officer’s conduct falls so far below the standard of conduct to be expected of him so as to constitute the offence of misconduct in public office, is it necessary to consider the likely consequences of the breach in regard to the nature of his office?’ in the affirmative (see also paragraphs 4, 22-29, 36-44, 47, 49-51 and 56-65 of the judgment):

‘49. In every case where misconduct is established there may be potential harmful consequences flowing from it, although it may not be possible to prophesy which particular consequence or consequences will result. It cannot be expected that in each case all the possible consequences can be spelt out in detail or catalogued. Such consequences must be taken into account to a greater or lesser extent.

50. However, in my judgment the likely consequences of the Respondent’s misconduct were not accorded their proper significance by the Magistrate. In this case an experienced, long-serving public officer, who was fully aware of the legal and departmental confidentiality requirements which governed his work, recorded for his own purposes important personal details of a very large number of taxpayers both individual and corporate. Some of that recorded data was removed from his office and kept at his home. The data obtained was exposed openly both in the office and at his home. The recording and exposure of the data took place over a period of 2½ years. At least some of the data could have been exposed for up to 2½ years. The privacy and confidentiality which a taxpayer is accorded by law to ensure that the Inland Revenue is able to pursue its revenue collecting duties with the fullest co-operation of the taxpayer, were ignored.

51. Any member of the public who was apprised of the Respondent’s activities as described above and, certainly, any taxpayer, could not fail to regard such misconduct as a serious abuse of the public’s trust in the officer. One of the least serious consequences of the abuse of public trust could be that taxpayers might be less forthcoming with their personal information on future occasions. An even more serious possible consequence might be that a taxpayer evaded paying tax altogether, rather than risk exposure of his personal details. An objective observer would regard the Respondent as having brought his office into disrepute; as having caused suspicion and as having misconducted himself in a way which would lead to reasonable criticism. In the words of the court in Dytham, the misconduct was “calculated to injure the public interest so as to call for condemnation and punishment”.’ (emphasis added)

99. It is noted that the facts of Chu King Kwok are different from the facts of the present case. In Chu King Kwok, the accused copied personal data of a large number of taxpayers but never used or disclosed them. However, it is submitted that what Beeson J (as she then was)  said about the relevance of the ‘likely consequence’ stands to be a correct statement of law.

100. Further, the effect on public confidence in the system and the possible damage to the integrity of the system are also relevant for consideration in deciding whether the misconduct is so serious as to amount to the common law offence of misconduct in public office. In HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 (PAN 25), the Court of Appeal, in considering whether the culpable misconduct of the appellant was serious in nature held that:

‘40. In order that Hong Kong can continue to be a corruption-free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute. Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed. In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any conduct of a public officer which contravenes the above principles is serious misconduct.’ (emphasis added)” (footnote omitted)

121.The defence also cited the case of Ho Hung Kwan Michael in their written closing submissions and invited me to consider the following:-

“210. In Ho Hung Kwan Michael [PLoA#23], Chan ACJ notes in §26 that:-

“[T]his offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position.”

211. In the discussion of “seriousness”, Chan ACJ quotes Pill LJ’s judgment in Re AG’s Reference (No. 3 of 2003) [2004] 2 Cr App R 23 [DLoA#16]:-

“…there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. 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. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct.””

122.It is clear that there is no disagreement between the parties that motive is a relevant consideration in the element of “seriousness”.

123.There appears to be agreement too that the likely/possible consequences of the misconduct are also relevant considerations in this respect.

124.I am ready to accept that the threshold for seriousness is a high one and a mistake or an error of judgement, even a serious one, is not enough.

125.When the aforesaid general principles are applied to the present case, it can be readily seen that the misconduct of the defendant has crossed the high threshold.  The reasons are as follows.

126.The purpose of having lay Council Members is to enhance public accountability and credibility of the Medical Council in discharging its self-regulatory function to safeguard public interest.  The PIC is established by the Medical Council pursuant to section 20BA(2)  of the MRO to make preliminary investigations into complaints lodged with the Medical Council.  The defendant, as a lay Council Member, would serve on the PIC on a rotational basis, each for a period of 3 months.

127.The defendant was a very experienced lawyer and admitted, in cross examination, she was well aware of the Data Protection Principle which she has breached; she also acknowledged that it was an important duty as a lay Council Member to protect personal data of complainants and preserve confidentiality of information (including details of complaints)  entrusted with her by the Medical Council.

128.I agree with the prosecution submission that not only the Medical Council, but also members of the public and complainants to the Medical Council had every reason to expect the personal data of complainants and information concerning complaints made to the Medical Council would be safeguarded and would only be used for purposes which are directly related to the complaints.  This is only common sense, but is also supported by the evidence of PW1 Chow, PW2 Tse and PW5 Prof Lau whose evidence on these aspects I accept.  At all material times, the website of the Medical Council contained the Personal Information Collection Statement (P13)  and Privacy Policy (P14)  which were publicly available to all members of the public, complainants and Council Members.

129.In my judgment, an objective observer would regard the defendant as having brought her public office into disrepute, as having caused suspicion and as having misconducted herself in a way which would lead to a reasonable criticism by (a)  disclosing the information related to PW3 Lee to PW4 Pang and/or (b)  accepting instructions from PW3 Lee to act for him in the civil claim against Dr Wong knowing full well she would not have been able to enlist this client without access to the information in P5 in her capacity as a lay member of the Medical Council.

130.PW5 Prof Lau, Chairman of the Medical Council gave the following unchallenged evidence (taken from prosecution’s written closing submissions), though its admissibility had been objected to by the defence:

“37. ……

(l)  PW5 stated that the Medical Council is established for justice. It relies on members of the public to trust that the Medical Council is reliable and honest. He expected each Council Member to comply with the requirements of the Medical Council;

(m)  If a Council Member, in exercising his/her public duty, obtained information provided by a complainant, including personal particulars, contact details of the complainant and information of the complainant’s case, and disclosed such information to a third party for matter(s)  irrelevant to the Medical Council’s functions or activities, PW5, in his capacity of the Chairman of the Medical Council and also as a member of the public, was of the view that it would:

(i)  make the complainants or potential complainants very cautious in providing information when making future complaints to the Medical Council, despite the fact that the Medical Council publicly published the ‘Personal Information Collection Statement’ and ‘Privacy Policy’ on its website;

(ii)  strongly affect complainants of the Medical Council and shaken the whole complaint system maintained by the Medical Council, being the only system in Hong Kong to handle complaints against inappropriate conducts or malpractice of medical practitioners; and

(iii)  adversely affect the public interest.”

131.I accept this evidence as I do with all other aspects of PW5 Prof Lau’s evidence in which he gave his views as a seasoned Chairman of the Medical Council (I ignore his views given as a mere member of the public).  With respect to him and to the defence, the above cited evidence merely echoes what to me is just common sense and it illustrates the likely/possible consequences of the defendant’s misconduct of disclosure and of acceptance of instructions from a potential client she would otherwise be unable to obtain access to.

132.Just to complete the picture, where PW5 Prof Lau gave certain evidence based, as he said on, certain assumed facts, I have found those facts proved.

133.I accept the prosecution’s submission, and this is just common sense, that the defendant’s misconduct would cause damage to the reputation, professionalism and credibility of the Medical Council and/or make the public cast doubts on the ability of the Medical Council in preserving confidentiality of personal data.

134.I also accept the prosecution’s submission that the defendant’s misconduct may also consequently make the public, including potential complainants to the Medical Council, being reluctant to provide information to the Medical Council, with the result, and this is just common sense, that the effectiveness of the Medical Council in performing its statutory functions being compromised.

135.In the case of acceptance of instructions from PW3 Lee whose existence the defendant only learned about from the Medical Council PIC file P5, this is a misconduct committed in the manner of abusing public office for pursuing private gain.  I accept that this would seriously affect the public interest.

136.In my judgment, the defendant’s misconduct has an adverse impact on public confidence and has damaged the integrity of the complaint system.

137.Consequently, I accept that the defendant’s misconduct has caused harm to the public interest and constitutes an abuse of the public trust’s in the office holder.

138.Before reaching that interim conclusion, I have revisited my consideration on Element 4 (without reasonable excuse or justification)  and I do not find anything that would detract from it.

139.I would add the following.  It is not necessary for the prosecution to prove that the defendant herself reached the conclusion that the misconduct was so serious as to amount to an abuse such as to call for condemnation and punishment; it is sufficient to prove that she had the means of knowledge available to her to make the necessary assessment of the seriousness of the misconduct; in other words, she must know the facts and circumstances which would lead the right-thinking member of the public to conclude that the misconduct was thus serious: Chapman, supra, at paras 48-49.  There is ample evidence that she knew those facts and circumstances being an experienced lay member of the Medical Council and a seasoned solicitor.

140.I am of the view that Particular (a)  of the Charge is serious and culpable misconduct on its own, despite there being no apparent improper motive.

141.I am also of the view that Particular (c)  of the Charge is serious and culpable misconduct on its own, bearing in mind how the defendant has been able to enlist such a client in the first place.  The misconduct was done for personal benefits which in the context of this case was an improper motive.  This is so despite the prosecution’s apparent concession, which I do not accept, that standing on its own without Particular (a), Particular (c)  does not amount to misconduct in public office.

142.In any event, under the factual matrix of this case, there has been a continuous course of misconduct running from obtaining the private information of PW3 Lee while at home, sharing it with PW4 Pang (both without the prior consent of anyone), which ultimately led to the defendant accepting instructions from PW3 Lee to act for him in the civil claim.  So, a fortiori, the continuous course of misconduct must be serious and culpable misconduct.

143.The prosecution has proved all elements of the offence beyond a reasonable doubt.

Conclusion

144.For the above reasons, the defendant is guilty of the offence charged.

Annex 1

Reasons for dismissing the defence’s application to exclude certain intended prosecution evidence

Defence’s application

1.  There are two chunks of evidence that the defence objected to.  The first relates to some parts (only)  of the intended evidence of PW5 Prof Lau (Chairman of the Medical Council).  The second relates to Chapters 3 (Obtaining Instructions)  and 25 (Solicitors Practice Promotion Code)  of the Hong Kong Solicitors’ Guide to Professional Conduct.

Challenged intended evidence of PW5 Prof Lau

2.  The evidence comes in 5 parts.  Part 1 encapsulates Part 2 and Part 4.  So a treatment of Part 1 will have completely dealt with Parts 2 and 4.  A large portion of Part 1 deals with “conflict of interest”.  After my raising the matter with the prosecution, the prosecution agreed not to ask PW5 Prof Lau anything relating to this aspect.  So what is left of Part 1 is just about PW5’s opinion whether certain facts, if proved, contravene the Data Protection Principle mentioned in the Personal Data (Privacy)  Ordinance, Cap 486.

3.  Defence seems to be taking objection on the basis that the law and its interpretation is a matter for me, not a witness.  That, I agree.  Being a single judge, I will certainly guard against any attempt by the witness to usurp my function in this regard.

4.  Parts 3 and 5 of the challenged evidence are very short.

5.  Part 3 deals with PW5 Prof Lau’s purported opinion as to the effect on the public towards the Medical Council where there has been leakage of a complainant’s particulars to a third party and how that may hinder the Medical Council’s work in its statutory functions relating to handling complaints, investigating professional misconduct and taking disciplinary action.

6.  Part 5 deals with PW5 Prof Lau’s purported opinion that the defendant by deliberately making use of the information she obtained from public office to seek personal gain causes serious harm to the public interest.

7.  Defence objected to Parts 3 and 5 on the basis that it is opinion evidence and irrelevant and conjectural.  Quite apart from the fact much of Part 3 is just common sense, I would regard PW5 Prof Lau as the most qualified person to give the court a feel of how the leakage of information has impacted the Medical Council in its work or what the likely effect to the Medical Council of the leakage of information is.  As regards Part 5, being a single judge, I will guard against PW5 Prof Lau’s attempt to determine the ultimate question for me; however, I believe there is no harm in hearing him about the basis on which he forms that opinion, given his prominent position in the organization from which the information flowed.

Solicitors’ Guide Chapters 3 and 25

8.  The purpose of the prosecution seeking to produce the two chapters as exhibits was to show that the defendant had, by her alleged conduct of misusing and disclosing the personal particulars of PW3 Lee to PW4 Pang, which ultimately led to her taking instructions from PW3 Lee to act as his paid lawyer, breached Article 3.03 in Chapter 3 of the Solicitors’ Guide which prohibits a solicitor from obtaining business by improper means such as touting in contravention of the Solicitors Practice Promotion Code (Chapter 25).

9.  It is important to note that the prosecution is not targeting the defendant for breach of the Guide as Guide simpliciter, it is seeking to show two things: first, that the defendant, if she did breach the Guide, was deliberately doing an unlawful act (in the wide sense)  knowing it was unlawful (this is one element of the offence of Misconduct in Public Office); and second, by knowingly breaching the Guide, that added to the seriousness of the misconduct (another element of the offence)  and also provided the context.

10.  It is also important to remember that the Guide itself is silent as to whether the defendant breached the Guide; that comes from other evidence.  The Guide merely provides a yardstick with which to measure the defendant’s relevant conduct much like the Data Protection Principles do.

11.  Defence objected to the production of these two chapters of the Guide on the bases that (a)  it is an unindicted allegation; (b)  it is being used for an impermissible line of reasoning; and (c)  it is irrelevant.

12.  As said, the Guide is merely a yardstick with which to measure.  It is not even an allegation.  The Guide is relevant in that it is being used to measure the defendant’s alleged conduct to see if it was unlawful (in the wide sense)  and the degree of seriousness of the conduct and its consequences.

13.  The Guide (Chapters 3 and 25)  is clearly admissible.