HKSAR v. Lau Wai Yee Monita

DCCC 515/2021

[2023] HKDC 1204

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 515 OF 2021

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial before me of 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 of offence under the charge 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.

A very brief summary of the facts on which sentence is based

3.The court found the particularized sub-paragraphs of the offence proved save and except the above sub-paragraph (b).

4.In particular, the court found that after the Preliminary Investigation Committee (“PIC”)  meeting on 11 April 2017 during which the defendant recused herself from deliberation of the complaint lodged by PW3 Lee, nonetheless re-read the PIC file relating to PW3 Lee at her home, this time in more detail; and subsequently disclosed PW3 Lee’s personal particulars and details of his complaints to PW4 Pang, without having obtained any prior authorization or consent from anyone.

5.The court also found that later, on or about 15 June 2017, the defendant accepted instructions via her firm of solicitors, namely Fongs, from PW3 Lee to act for him in the civil claim against Dr Wong Hon Wai, knowing full well she would not have been able to enlist PW3 Lee as a potential client but for the fact that she came across him in the PIC file.

6.The reader is referred to the Reasons for Verdict for a fuller appreciation of the background facts of the case.

Criminal record

7.The defendant has a previous clear record.

Antecedents

8.The defendant is aged 65 (59 at the time of the offence), educated to university level.  She is a solicitor and was a Senior Consultant of a firm of solicitors.  She was arrested on 2 June 2021.  The defendant is married with a daughter and a son.

Mitigation

9.Mr Graham Harris of Senior Counsel leading Ms Joyce Lai of Ccounsel mitigated on behalf of the defendant.  The following is a summary of the mitigation submissions.

10.Maximum penalty is 7 years’ imprisonment and a fine.  There is no sentencing tariff.  Sentence depends on the facts.

11.The defendant has a clear record; she is a woman with impeccable character evidenced by an outstanding résumé.

12.The defendant is the eldest child of her maiden family.  She has always taken care of her parents who are now 93 and 87 years old respectively.  Because of old age, both of them are living under various natures and degrees of challenges.

13.The defendant and his medical doctor husband have raised up two children both well educated.  Despite all that, it was submitted that the defendant was the main bread winner of the family; and it was she who has provided most of the financial support for her elderly parents.

14.The defendant was admitted as a solicitor in Hong Kong in 1997 after studying law at the University of Hong Kong and serving traineeship at a reputable firm of solicitors.  She then worked her way up at various law firms and eventually became a partner in a local law firm.  Later in her professional career, she became a Senior Consultant in different law firms at different times including eventually Messrs Fongs.

15.The defendant has taken up various public duties over the years including being a lay assessor and lay Council member of the Medical Council, member of the Board of Governors of the Prince of Philip Dental Hospital, member of the Criminal and Law Enforcement Injuries Compensation Boards, Chairman of the Appeal Tribunal Panel (Buildings), and a pro bono volunteer for the Society of Community Organization.

16.The defendant has been diagnosed with severe degree of a Major Depressive Disorder and was provided with both supportive psychotherapy and medication.  Details are included in a Medical Report under the hand of Dr Benjamin Lai dated 3 July 2023.

17.For that reason, mitigation has been adjourned for the obtaining of a psychiatric report and a psychological report from government experts [to whom Dr Benjamin Lai’s report has been made available].

18.Visiting Psychiatrist Dr Jane So opined that the defendant has a known history of severe depressive episode with partial remission of symptoms; that her mental condition has remained largely stable during her remand and compulsory inpatient treatment is not required at this juncture; and that she will continue to receive psychiatric follow-up in the private sector.

19.Clinical Psychologist Ms Sarina Lam opined that, in the event of a non-custodial sentence, counselling that aims at facilitating better adjustment to the defendant’s retirement from current job and reintegration into community is recommended; if a custodial sentence is ordered, additional psychological intervention targeting the defendant’s penal adjustment is recommended.

20.Defence submitted that the defendant’s conduct was a mistake, an error of judgement; that there was no continuous feed of information to multiple parties; that the defendant acted in a pro bono capacity as a lay member of the Medical Council.  Defence submitted that these features were a contrast from the facts of Chan Tak Ming v HKSAR (2010)  13 HKCFAR 745 the appellant of which was only fined $50,000 after trial.

21.Defence submitted that a criminal conviction would destroy the defendant’s career and cause irreversible damage to her personal and professional reputation; that striking off the Roll of Solicitors is a likely outcome.

22.Defence submitted the chance of the defendant re-offending is practically nil as it is unlikely, if not impossible, for her to be re-appointed to any advisory board with a criminal conviction of this nature.

23.Defence submitted what the defendant did was not a premeditated scheme to procure clients for financial gain; that she made the disclosure to Mr Pang, she acted out of a momentary error of judgement and acted out of character in how to deal with Mr Lee’s situation.

24.The defendant was charged in June 2021 with a trial being fixed in April 2022.  Due to the General Adjournment Period during the Covid pandemic, her trial was adjourned to March 2023.  This was beyond the control of the court and the prosecution; but it was not caused by the defendant either.  The result of the delay is still borne by the defendant as her health condition further deteriorated during this period – her vision continued to worsen, and she was advised that her epiretinal membrane may require a major operation. Defence submitted that the defendant suffered additional stress as a result of the delay and above the normal amount of stress pertaining to a timely disposal of a criminal action.

25.It was submitted that the delayed trial caused immense psychological and financial stress on the defendant which further affected her psychiatric condition as stated in Dr Benjamin Lai’s report.  It was submitted that the stress of the original trial and the subsequent adjournment was also recognized by Ms Sarina Lam in her report.

26.It was submitted that a sensible and reasonable approach was adopted in the way the defence case was conducted which saved the court’s time and resources.

27.It was submitted that should a prison term be warranted, the present case is one where the court may exercise its discretion and order the sentence be suspended.  It was submitted a suspended sentence can adequately reflect the criminality of the offence.

28.In conclusion, it was submitted that the defendant’s misconduct is far from the worse (sic) of its kind; that exceptional circumstances exist such that the court may exercise its jurisdiction (sic) to impose the most lenient sentence as the circumstances warrant.

29.Defence submitted a total of 6 mitigation letters all written in English by respectively the defendant herself, Professor Felice Lieh Mak, Dr Donald Li, Dr Anthony Chow, Mr Vernon Moore, and the defendant’s daughter.  The contents generally are that the defendant apologizes to PW3 Lee; that the defendant was a caring, composed, compassionate, fair-minded, generous, helpful, kind-hearted, level-headed, trustworthy, and very hard-working person.  Her daughter in particular asked the court to consider the defendant’s case in the most sympathetic and lenient light.

Sentence

30.Misconduct in public office is a serious offence.

31.A recurring feature of such an offence is that convicted persons are usually persons with clear record with some even having previously impeccable character and a long history of public service paid or unpaid.

32.Indeed, in the context of this case, and this is an irony, the commission of the offence was only possible because of the defendant’s voluntary participation as a lay member of the Medical Council and her pro bono work history with the Society for Community Organization.

33.The present offence has two aspects to it.  First, the “disclosure” aspect.  Second, the “acceptance of instructions” aspect.

34.Whilst, in mitigation, much has been urged on the court in relation to the “disclosure” aspect along the line that the act done was a mistake or (momentary)  error of judgement, with respect, very little mitigation has been offered in relation to the “acceptance of instructions” aspect.

35.In my Reasons for Verdict, I have already ruled out mistake or error of judgement on the part of the defendant, even a serious one for that matter.  However, the criminality of the defendant is even more acute when one considers the “acceptance of instructions” aspect.

36.Although, in my Reasons for Verdict, I have given the defendant the benefit of the doubt in relation to Particular (b)  of the Charge, in particular, on the prosecution’s allegation that the defendant solicited a retainer from PW3 Lee during the meeting of 26 May 2017, I have at the same time found against the defendant that during that same meeting, “[t]he 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 [d]efendant …”

37.That utterance of the defendant shows that, although it was not proved the defendant solicited a retainer from PW3 Lee at that meeting, as early as that time, at the back of the defendant’s mind, she was harbouring the possibility that she would eventually act for PW3 Lee as a paid lawyer.  This, running with the eventual acceptance of instructions from PW3 Lee, constitutes the major criminality of the present offence.  That is, using information obtained and obtainable only because of her privileged role as a lay member of the Medical Council, she successfully attracted professional business.  No reasonable member of the public would tolerate such conduct by a public official, even if it occurred once.

38.This is not to say that the “disclosure” aspect is not serious. It is serious in its own right because it undermined the complaint system under the Medical Registration Ordinance, Cap 161.

39.Both aspects of the offence have wide implications if allowed to proliferate.  A deterrence sentence is called for.

40.An immediate term of imprisonment is clearly appropriate.

41.I take on board all that has been said on behalf of the defendant.  I have considered all medical reports submitted and called for including the psychological report.

42.I adopt a starting point of 3 years’ imprisonment.  I cannot give the defendant any discount on account of her plea.  I will not give her any sentencing reduction on account of her previous clear record and her long history of public service for the simple reason that the commission of the present offence is only possible because of such factors; not to mention the fact that the offence of which the defendant stands convicted involved misconduct in relation to a public office.

43.For the delay in the trial process caused by Covid, I will give the defendant 3 months’ reduction.  For the sensible way in which the defence case was conducted, I will give her a further 3 months’ reduction.  There are no other mitigating factors of weight to warrant any further reductions.

44.I should add, and I hope the defendant does not take this as an impertinent remark, that the Correctional Services Department will have adequate facilities to take care of her medical needs.

(Defendant, please stand)

45.The sentence is 2½ years’ imprisonment.