HKSAR v. Lau Wai Yee Monita
Read the full judgment text of CACC 168/2023 on BabelCite. This Court of Appeal judgment was delivered on 3 December 2024.
1. On 28 July 2023, following a trial before District Court Judge Isaac Tam (the Judge) the appellant was convicted of a single charge of the common law offence of misconduct in public office. On 25 August 2023, the Judge sentenced the appellant to 2 years and 6 months’ imprisonment.
Cited by 4 cases · Cites 15 cases
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CACC 168/2023 [2025] HKCA 255 On appeal from [2023] HKDC 1049 and [2023] HKDC 1204 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 168 OF 2023 (ON APPEAL FROM DCCC NO 515 OF 2021) _______________
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__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Zervos JA (giving the Reasons for Judgment of the Court): 1.On 28 July 2023, following a trial before District Court Judge Isaac Tam (the Judge) the appellant was convicted of a single charge of the common law offence of misconduct in public office. On 25 August 2023, the Judge sentenced the appellant to 2 years and 6 months’ imprisonment. 2.On 27 June 2024, the Single Judge granted the appellant leave to appeal against conviction and sentence.[1] There was also an application for bail pending appeal which the Single Judge granted. 3.At the hearing of the appeal, we allowed the appellant’s appeal against conviction, quashed her conviction and set aside her sentence. We also ordered that the respondent pay the appellant’s costs of the appeal, including the leave application with a certificate for two counsel. We said we would hand down the reasons for our judgment in due course, which we now do. The charge 4.It was alleged that the appellant, the holder of a public office, namely a lay member of the Medical Council of Hong Kong, between 1 April 2017 and 23 January 2018, wilfully misconducted herself in her public office by:
The appellant’s background 5.Before we consider the issues in this appeal, it is necessary to provide a brief background of the appellant and her role and duties in the Medical Council. When this matter first came to light, the appellant was in her early 60s and had been in legal practice for many years. She initially worked as a stenographer and commenced her legal career in 1995 after qualifying as a lawyer. She worked as a solicitor in several legal firms and became a partner in 2009 and a senior consultant in 2012. In 2015, she joined Fongs as a senior consultant. She specialised in medical malpractice cases. Over the years, she had taken up various public positions as a lay assessor and lay member of the Medical Council of Hong Kong, a member of the Board of Governors of the Prince Philip Dental Hospital, a member of the Criminal and Law Enforcement Injuries Compensation Board, and the Chairman of the Appeal Tribunal (Buildings). She also provided pro bono services to different organisations, including SOCO in 2013 and the Development Bureau in 2015. 6.The appellant had been associated with the Medical Council in several capacities for almost a decade. In 2008, she was first appointed as a lay assessor for a period of 3 years. In 2012, she was appointed a lay member and was reappointed until 2018. The Medical Council 7.The Medical Council is an independent statutory body established under the Medical Registration Ordinance (Cap 161) to handle registration and discipline of medical practitioners in Hong Kong. At the material time, the Medical Council comprised a total of 28 members, four of whom were lay members. There is provision for the establishment of a Preliminary Investigation Committee (PIC) to make preliminary investigations into complaints lodged with the Medical Council.[2] At the material time, the PIC was comprised of seven members, three of whom were Medical Council members and four were non-Medical Council members. Of the three Medical Council members, one is chosen from the four lay members. The quorum for a PIC meeting was three members and at least one of them had to be a lay member. In the legislative materials, it was said that the purpose of having a lay member is to enhance public accountability and credibility of the Medical Council in discharging its self-regulatory function to safeguard the public interest.[3] 8.Briefly stated, the statutory scheme for the consideration and determination of complaints against medical practitioners is a three tier system. The first tier involves an initial examination of the complaint by the Chairman or the Deputy Chairman of the Medical Council to remove an obvious case that is frivolous or groundless and should not proceed further. The case can only be dismissed after consultation between the Chairman and the Deputy Chairman. If the complaint is not dismissed after this first examination, a second examination of the complaint takes place by the PIC to determine whether or not the complaint should be referred for inquiry and determination by the Medical Council. This involves a more detailed consideration of the complaint and where the medical practitioner can submit information in response. In deciding that no inquiry is to be held, the PIC has the option to issue a letter of advice to the medical practitioner. It is on the basis that the case should be inquired into that a referral is made to the Medical Council for inquiry by way of a formal charge. Finally, if the PIC makes such a referral, the Medical Council then determines by way of formal hearing whether the complaint of “misconduct in a professional respect” against the medical practitioner is established.[4] 9.Whilst the complaint may eventually result in a public hearing or legal action, members are expected to keep confidential the information and materials obtained during the disciplinary process and use them in accordance with their duties and functions.[5] The brief facts 10.SOCO is a non-governmental organisation engaged in the promotion of social justice for the underprivileged and disadvantaged. At the material times, PW4 was a community organiser with SOCO. His duties included helping patients suffering from adverse medical incidents and seeking assistance from volunteer legal professionals for the provision of preliminary legal advice.[6] In late 2012, PW4 approached the appellant and invited her to become one of the volunteer legal professionals for SOCO. She agreed and since then she had given pro bono legal advice in some fifteen cases.[7] 11.At the request of PW4, the appellant provided legal advice to assist two patients of Dr W, complaining of the surgery he conducted on them for the removal of a nasal septum and the resultant condition known as Empty Nose Syndrome (ENS), which commonly results in patients having feelings of nasal obstruction or a sensation of being unable to breathe.[8] In March 2013, PW4 asked for the appellant’s assistance for a patient who suffered from ENS after surgery by Dr W. She provided pro bono legal services to the patient, who eventually obtained legal aid, but it appears his claim did not proceed because of his medical condition. The appellant bore the costs of the disbursements paid on his behalf. In December 2016, PW4 again asked for the appellant’s assistance in respect of another patient who may have suffered from ENS after surgery by Dr W. However, after an assessment of the medical reports, the claim was not pursued and the legal services she provided were pro bono. The appellant became concerned about this medical condition and sought to raise public awareness of the potential risk of ENS after Ear, Nose and Throat (ENT) surgery. In May 2015, she was featured in a newspaper article, stating the need for medical practitioners to properly advise patients of the risks associated with surgery that may result in ENS. 12.In April 2011, PW3 underwent a surgical procedure performed by Dr W, which caused PW3 to suffer from ENS. On 3 June 2015, PW3 filed a complaint against Dr W with the Medical Council, which was referred to PIC. The appellant was the only lay member of the PIC at the time. 13.The appellant received in advance the papers for the PIC meeting on 11 April 2017, which included PW3’s complaint against Dr W. PW3 was diagnosed with ENS, which was alleged to have been caused by the inappropriate manner in which Dr W had performed surgery on him to correct a deviated septum. It was at the meeting that she noticed PW3’s letter of complaint, in which he was very critical of the surgery performed on him by Dr W, explaining how his life and health had been adversely affected because he was suffering from ENS. The appellant declared she was representing another patient in a civil action against Dr W and recused herself from participating further in respect of PW3’s complaint. 14.After recusing herself from PW3’s complaint, the appellant took another look at PW3’s papers and realised he was suffering severely from numerous ailments because he had ENS. PW3 stated in his complaint that he had depression every day, which was “aggravating day by day”. At the time, the appellant did some research online for “ENS” and “suicide”.[9] She was concerned by what she had read about people suffering from ENS and was worried for PW3, whom she thought may have suicidal thoughts based on other case studies.[10] According to the appellant, out of concern for PW3’s well being and mental health, she passed on his contact details to PW4 to help him with his case.[11] 15.On 27 April 2017, the appellant telephoned PW4, told him of PW3’s complaint against Dr W and asked whether he could help PW3 as PW3 was the third patient complaining about surgery conducted by Dr W. She told PW4 that PW3 was depressed and that the surgery had “ruined his life”. Later, on the same day, the appellant sent PW4 a WhatsApp message containing PW3’s contact details (particular (a)). 16.On 26 May 2017, PW4 arranged for PW3 to meet the appellant to discuss his complaint. This was based on the Judge’s finding that it was possible that it was PW4’s own idea to arrange the meeting and he sought the consent of both PW3 and later the appellant to set it up.[12] It was the prosecution case that during this meeting, the appellant touted for legal work and solicited a retainer from PW3 to pursue a civil claim against Dr W (particular (b)).[13] The defence accepted that the meeting on 26 May 2017 took place, but it was at PW4’s instigation and the appellant did not tout for legal work from PW3. At the meeting, the appellant explained that she got his information from the Medical Council and provided it to PW4 to assist him. She sought and received PW3’s assurance that it was in order to discuss his case.[14] They discussed the surgery that had been performed on PW3 by Dr W and whether he had been advised of the risk of ENS. PW3 also discussed how his health had been affected by the surgery. When it was noted that the surgery took place in April 2011, both PW4 and the appellant realised there was an issue regarding the limitation period for any potential claim against Dr W. PW3 asked them to look into the limitation period and left his file with them.[15] 17.Between 2 and 3 June 2017, there were a series of WhatsApp messages between them regarding various matters, including PW3 enquiring of the appellant whether she would represent him and making arrangements for a further meeting.[16] On 2 June 2012, PW3 sent a text message to the appellant, referring to their previous meeting and asking for a quotation and follow-up, but she did not reply. As he received no response from the appellant, PW3 sent a text message to PW4 stating that as “the lawyer” did not reply, he was wondering “if she would follow up on my case?” PW3 sent another text message to the appellant in which he said:
18.On the next day, 3 June 2017, the appellant replied to PW3 telling him that she thought it was more appropriate for PW4 to contact him. PW3 replied:[18]
19.Later that day, PW4 texted the appellant that PW3 would like to know what to do next in the legal procedures and asked whether PW3 should file a protective writ first.[19] 20.On 14 June 2017, PW3 sent a text message to the appellant in which he said:
21.The appellant took this as meaning that he no longer required her assistance, which she had voluntarily provided to him.[20] She replied, “Sure. Will do. Best of luck.” [21] 22.While the appellant was meeting PW4 on 15 June 2017 for another matter, PW3 attended the appellant’s office. PW4 explained that PW3 wanted to know more about a protective writ of summons. There was a further discussion about the legal procedures involved, whereupon PW3 instructed Fongs to represent him in a civil claim against Dr W.[22] After the meeting, the appellant sent a retainer letter to PW3. On 21 June 2017, PW3 paid $45,000 to Fongs as costs on account (particular (c)). 23.The legal services provided to PW3 by Fongs commenced on 15 June 2017, and did not include any previous meetings and communications between the appellant and PW3 concerning his case. The firm acted for PW3 in the civil claim for nearly 2 years, when he terminated the services of the firm, which was followed by a settlement of his damages and costs. Fongs issued a bill of costs to PW3 on 15 May 2019 for the period from 15 June 2017 to 31 March 2019, setting out the professional charges of the appellant as well as various disbursements, including medical reports and counsel’s fees. Relevantly, the appellant did not charge PW3 for her dealings with him, from 26 May to 14 June 2017, prior to his retaining Fongs to act in a claim against Dr W. 24.The appellant gave evidence in her defence and called witnesses as to her good character. The defence case was that particulars (a) and (c) happened but were not capable of amounting to misconduct in public office. The reasons for verdict 25.Significantly, the Judge rejected the prosecution case that the appellant touted for legal work and found that she did not have an improper motive when she disclosed PW3’s information to PW4.[23] He was not satisfied that the appellant caused the meeting with PW3 on 26 May 2017, rather it was PW4’s “own idea” with PW3’s consent.[24] It is important to note that the Judge found that the appellant might have genuinely suspected that PW3 had possible suicidal thoughts, and for PW3’s benefit, she disclosed his personal particulars “motivated by a desire to get SOCO to assist PW3”.[25] He seemed to accept that the appellant acted out of genuine concern to help PW3 through the SOCO.[26] He, therefore, did not find particular (b) proven. 26.As particulars (a) and (c) were not in dispute, the Judge found them proven. He concluded that these two particulars were independent acts of misconduct in relation to the appellant’s public office but could also be considered together.[27] 27.The Judge was satisfied that individually and cumulatively, the misconduct under particulars (a) and (c) met the seriousness threshold.[28] He considered the “disclosure” to be a serious breach of her public duty to protect the personal data of complainants of the Medical Council and preserve the confidentiality of information that was entrusted to her by the Medical Council.[29] He also considered that the “acceptance of instructions” was for her private gain and a serious abuse of the public interest.[30] The appeal against conviction 28.The grounds of appeal against conviction are as follows. Ground 1: The Judge erred in finding the element of “seriousness” proven. Ground 2: The Judge erred in finding there was no “reasonable excuse” for the appellant’s conduct. Ground 3: The Judge erred in holding that the unauthorised disclosure by the appellant (particular (a)) was a “failure to act” or nonfeasance type of misconduct. Ground 4: The Judge erred in finding that the act of the appellant accepting PW3’s offer of retainer (particular (c)) constituted criminal misconduct. Ground 5: The Judge, having concluded that the appellant did not tout, nor intended to tout for PW3’s legal work, erred in convicting her on particulars (a) and/or (c). 29.We note at this juncture that the Judge, having eliminated the allegation that the appellant sought to tout legal work from PW3, narrowed down the alleged misconduct in public office to a breach of privacy by the disclosure to a third party of PW3’s contact details and complaint against Dr W to the Medical Council (the breach of privacy) and the appellant’s subsequent acceptance of instructions from PW3 to act on his behalf in a civil claim against Dr W (the acceptance of instructions). However, the appellant’s acceptance of instructions was necessarily linked to the breach of privacy. 30.We considered that the element of “seriousness” was a key issue in this appeal and accordingly we have focused our decision on the complaints directed to this element of the offence. We have distilled from the grounds of appeal the question of whether the element of “seriousness” had been proven, taking into account the motive and consequences of the appellant’s conduct, and the Judge’s finding that the appellant did not disclose PW3’s personal particulars in order to solicit legal work from him. The offence of misconduct in public office 31.The common law offence of misconduct in public office holds public officials accountable for serious breaches or abuse of any power, duty or responsibility exercisable for the public good. The offence is committed where:[31]
32.When addressing this offence, it is appropriate to note the statement of Lord Millett NPJ in Wong Lin Kay [33], that misconduct in public office is concerned with serious breaches of duty and “does not simply mean misconduct in the performance of his duties by a government employee or civil servant.” He emphasised that the alleged misconduct must consist of an abuse of the powers, duties and responsibilities entrusted to or invested in a public official and exercisable for the public good. He said:
33.The Court of Final Appeal in HKSAR v Hui Rafael Junior [34] further emphasised that to constitute an offence there had to be a necessary link between the misconduct and official powers, duties or responsibilities, although not every breach of the law by a public official is in the course of or in relation to the office held. The Court explained that the kernel of the offence is that the public official, having been entrusted with positive duties for the public benefit, has in some way abused them, or has abused his official position. 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.[35] The Court observed that the characterisation of the misconduct alleged might involve both a descriptive element (of the facts of the transaction) and a value judgment (of its effect).[36] 34.In our view, the effect of the misconduct would have an important bearing on whether it is of such seriousness that it warrants condemnation and punishment under the criminal law. (1) A public official 35.The first element of the offence is whether the accused is a public official. A person who occupies a public office, regardless of whether he or she is paid a remuneration, is liable for prosecution for the offence.[37] The test is whether he or she undertakes a public duty that the public has a significant interest in its discharge.[38] The following questions address this test:[39]
36.When addressing the question of whether a person is or is not a public officer, Ribeiro PJ, in Wong Lin Kay, stressed that the correct approach was to examine what, if any, powers, discretions or duties have been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involves abuse of those powers in any of the ways identified in Shum Kwok Sher, namely ranging from fraudulent conduct, through nonfeasance of the 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, to oppression.[40] He added that if the defendant occupies a position which confers no such powers on him, he is not a candidate for prosecution for the offence, even if he is employed by a government department or by an analogous public body.[41] 37.The appellant’s position as a lay member was to represent community interests in the investigation of complaints against medical practitioners lodged by members of the public with the Medical Council.[42] In that position, she was entrusted with confidential and sensitive information regarding complaints against medical practitioners, which in confidence would be addressed under the statutory scheme for handling such complaints. The Judge correctly found that the appellant, as a lay member of the Medical Council, was a public official at the material time. 38.Whilst the appellant had recused herself as a member of the PIC in respect of PW3’s complaint against Dr W and had no further involvement in his complaint in an official capacity, she had received the papers regarding PW3’s complaint as a lay member of the PIC and extracted from them the contact details of PW3 and the particulars of his complaint, which she later used. (2) In the course of or in relation to his public office 39.The next element that needs to be satisfied is whether the impugned conduct was in the course of or in relation to the accused’s public office. This is addressed by the following question. Did the conduct with which the accused is charged consist of an abuse of power, duty or responsibility entrusted to him or her and exercisable for the public good?[43] 40.As we have already noted, there must be a relevant relationship between the act or omission constituting the misconduct in public office. It 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.[44] 41.The Judge found that the disclosure of PW3’s information was misconduct (particular (a)), which was linked to the appellant’s official powers, duties or responsibilities, and had a relevant relationship with her public office.[45] He also found that the appellant would not have been able to meet with PW3 as a potential client but for her access to PW3’s complaint in her capacity as a lay member (particular (c)).[46] He concluded that the appellant, in making the disclosure, abused her official position, which was inconsistent with her responsibilities to protect the personal data of complainants and preserve the confidentiality of information entrusted to her by the Medical Council.[47] (3) Wilfully misconducts himself 42.This element requires that the accused has wilfully misconducted himself in his public office. The misconduct must be deliberate rather than accidental in the sense that the accused either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Mere inadvertence is an insufficient wilful element.[48] 43.There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. The recklessness test will apply to the question of whether in the particular circumstances, a duty arises at all, as well as the conduct of the accused if it does.[49] The subject test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission: Attorney-General’s Reference (No 3 of 2003) [50]. 44.The Judge examined whether, for the element of wilful misconduct, an improper motive was an additional mens rea element for the offence.[51] He identified the appellant’s misconduct as “disclosure” and “acceptance of instructions”. He said that the “disclosure” was a breach of duty by a failure to act, that is, a “nonfeasance” for which no improper motive was needed to be proved as part of the mens rea. He said that the “acceptance of instructions” was acting in excess of power or authority, that is, a “malfeasance” for which a dishonest, corrupt or malicious motive was required. He found that there was clear and agreed evidence of the appellant accepting the instructions for personal benefit, which constituted the necessary improper motive.[52] 45.In addressing this element in respect of particular (a), the Judge found that the appellant failed to uphold her duty to protect the personal data of complainants and preserve the confidentiality of information entrusted to her by the Medical Council, for which no improper motive needed to be proved as part of the mental element of the offence. He considered that the appellant’s act of disclosure was deliberate and knowingly in breach of the relevant data protection principles.[53] In respect of particular (c), the Judge found that the acceptance of instructions from PW3 involved the appellant doing so for her personal benefit, which constituted an improper motive for acting in excess of power or authority.[54] (4) Without reasonable excuse or justification 46.This element is an additional element to element (3) of wilfully misconducts himself and, as explained in Tsang Yam Kuen Donald [55], may become relevant where a wilful failure to meet the standards has occurred but is sought to be excused or justified. The element has been held to mean no more than acting culpably or in a blameworthy fashion: R v L (D) [56]. 47.The Judge did not find that the appellant had reasonable excuse or justification for the “disclosure”[57] or the “acceptance of instructions”[58]. Instead, he found that the prosecution had successfully negated the element of reasonable excuse and justification on the question of disclosure because the appellant could have raised her concerns with the Medical Council. 48.When addressing element (4), the Judge referred to his finding that the appellant may have re-examined PW3’s complaint because of her experience and research of sufferers of ENS having suicidal tendencies. He considered whether the appellant’s conduct of making the disclosure was motivated by a desire to get SOCO to assist PW3 due to her concern that sufferers of ENS had suicidal tendencies as well as her desire to raise public awareness about ENS.[59] 49.In determining whether the appellant was justified in disclosing PW3’s information, the Judge found that, even though it was possible the applicant was motivated out of a genuine concern about PW3’s well-being, the only “proper and reasonable thing to do” was to approach and seek assistance from the Medical Council. He stressed that the appellant’s disclosure of the PW3’s information was “a serious infringement” of his privacy rights and “a serious breach” of her duty to preserve the confidentiality of the information entrusted to her by the Medical Council.[60] 50.The Judge considered that there could be no reasonable excuse or justification for the appellant to accept PW3’s instructions because they arose out of her obtaining access to his information as a lay member of the Medical Council. Significantly, he stated that he had not ignored the fact that PW3 had “given ex post facto consent to the way he was approached”, but added that this did not change the character of the origin of the information.[61] It is true that the appellant obtained the personal particulars of PW3 in her capacity as a lay member, but if the owner of the information has given his ex post facto consent to use this information to make contact with him, then it goes to the issue whether there has been, as the Judge had found, “a serious infringement” of PW3’s privacy rights. 51.It was the confidential nature of PW3’s information and the breach of his privacy that the Judge emphasised in his analysis of this offence. This was a critical consideration in assessing the threshold requirement of the seriousness of the misconduct. (5) Serious misconduct 52.The element of seriousness is intended to limit the scope of the offence by excluding conduct that is disciplinary in nature and not serious enough to warrant a criminal sanction. Whether the misconduct is serious is determined with regard to:[62]
53.In R v Chapman [63], it was held that the threshold of seriousness concerned conduct which was calculated to injure the public interest so as to call for condemnation and punishment. 54.In analysing the element of seriousness, the Judge confirmed that the purpose of lay members in the Medical Council was to enhance “public accountability” and the credibility of the Medical Council “in discharging its self regulatory function to safeguard the public interest”.[64] He went on to emphasise the importance of the protection of personal data of complainants and preserving the confidentiality of information entrusted to her by the Medical Council, which the appellant had acknowledged. He observed that members of the public and complainants expected that personal data would be safeguarded and only used for purposes which were directly related to the investigation of complaints.[65] On an objective assessment, he concluded the appellant brought her public office into disrepute by her alleged conduct under particulars (a) and (c).[66] 55.The Judge found that the appellant’s misconduct in her handling of the personal data “would cause damage to the reputation, professionalism and credibility of the Medical Council”, which would result in the Medical Council’s statutory functions being compromised.[67] He also found that the appellant’s acceptance of PW3’s instructions to act for him arose from PW3’s personal information with the Medical Council, and this involved her abusing her public office to pursue a private gain, which seriously affected the public interest.[68] He said that the appellant’s conduct overall had an adverse impact on public confidence and damaged the integrity of the Medical Council’s complaint system. He concluded that the appellant’s misconduct caused harm to the public interest and constituted an abuse of the public trust in her public office.[69] 56.After a review of element (4), without reasonable excuse or justification, the Judge found that particulars (a) and (c) were serious and involved culpable misconduct on their own, despite there being no apparent improper motive in respect to particular (a), while there was an improper motive in respect to particular (c) because the acceptance of instructions from PW3 was for the appellant’s personal benefit.[70] The “seriousness” of the appellant’s misconduct 57.The question of misconduct in the present case mainly turns on a consideration of the circumstances of the appellant’s disclosure of PW3’s personal particulars, including the reason or purpose for why it was done: HKSAR v Ho Hung Kwan Michael [71]. As already noted, an important element of the offence of misconduct in public office is the seriousness of the public official’s alleged misconduct, which is assessed by the nature and scope of the misconduct and the injury and harm to the public interest or public good: Chapman [72]; Chan Tak Ming [73]; and Shum Kwok Sher [74]. A critical requirement of this offence is the wilful and serious abuse of an official’s public office or position that involves more than just a mere oversight or a lapse of judgement. 58.The Court of Final Appeal in Tsang Yam Kuen Donald set out the approach to be taken when assessing the threshold of seriousness by reference to the public official’s responsibilities and the nature and extent of the departure from them as explained by Sir Anthony Mason NPJ in Shum Kwok Sher and also took the opportunity to add that the consequences that follow from an act or omission may also be relevant. The Court said: [75]
59.The context of the misconduct when assessing seriousness is an important consideration which had been previously made by the Court of Final Appeal in Hui Rafael Junior:
60.The importance of the context and consequences of the misconduct was reinforced by the Court of Final Appeal in Ho Hung Kwan Michael, where Chan ACJ explained:
61.The Judge acknowledged that the threshold for seriousness was high and that a mistake or an error of judgement, even a serious one, was not enough[79]; and that the appellant’s motive was a relevant consideration in the element of “seriousness”.[80] Notwithstanding the Judge’s acknowledgement of these matters, the fundamental issue before us is whether he had properly determined that the threshold for seriousness had been met in the circumstances of this case. 62.In R v Dytham [81], a police officer witnessed but failed to intervene in a very serious attack on a man who died. He was convicted of misconduct in public office and appealed his conviction. Lord Widgery CJ, who delivered the judgment of the Court of Appeal, in dismissing his appeal, held that the offence of a public officer wilfully neglecting to perform a duty, which he was bound to perform, required that the neglect must be wilful and not merely inadvertent, and culpable in the sense of being without reasonable excuse or justification.[82] He said that the element of culpability was not restricted to corruption or dishonesty but must be of “such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.”[83] 63.In Shum Kwok Sher, Sir Anthony Mason, NPJ, explained Lord Widgery’s judgment as follows:
64.Sir Anthony Mason NPJ went on to discuss the qualification that the misconduct had to be serious. He said:
65.In giving the opinion of the Court in Attorney General’s Reference (No 3 of 2003), Pill LJ agreed with Sir Anthony Mason NPJ’s qualification that the misconduct complained of must be serious misconduct. He said whether it is of a sufficiently serious nature will depend on the factors stated by Sir Anthony Mason NPJ, along with “the seriousness of the consequences which may follow the act or omission.”[84] He went on to amplify this point:[85]
66.In his concluding remark in this passage, Pill LJ noted that the motive with which a public officer acts may be a relevant consideration as to whether his or her conduct amounted to misconduct in public office. He also made the point that the consequences of the public officer’s acts will be a relevant consideration, and whether the consequences are trivial or serious will have a bearing on the criminality of the conduct. He cited with approval the above quoted remarks of Lord Widgery CJ in Dytham regarding the element of culpability[86] and went on to further explain:
67.After setting out the elements of the offence of misconduct in public office, Pill LJ expressed the terms of the threshold of seriousness by applying the language of Lord Widgery CJ in Dytham that the public officer wilfully should neglect or wilfully misconduct himself “to such a degree as to amount to an abuse of the public’s trust in the office holder”. Even though it is expressed in different terms to the element in Shum Kwok Sher (element (5)), it has the same meaning and employs the same approach. 68.The Court of Appeal in Chapman, examined in detail the element of seriousness in respect to two cases concerned with public officers passing information obtained during the course of their duties to the media in return for payment. Importantly, it was stated by the Court that the element of seriousness must take into account “the context” in which the misconduct has occurred, noting that there were two points to consider when directing a jury. The first point was that it should be made clear to the jury that the misconduct must be more than a breach of duty or breach of trust. The Court strongly deprecated condemning someone with this offence who had fallen into error or made a mistake.[87] The second point was that it should be explained to the jury how they should approach determining the threshold of seriousness by considering whether the conduct was of a level that had the effect of injuring the public interest so as to call for condemnation and punishment. The Court said:
69.When addressing how to direct a jury to approach the issue of whether the misconduct was so serious as to amount to an abuse of the public trust in the office holder, the Court considered there were two ways of assisting the jury: [88]
70.In respect of the first, the Court considered that it was sufficient if the judge told the jury that the threshold was a “high one”.[89] The Court then went on to examine the second way in which the standard of seriousness could be judged by reference to the harm to the public interest:
71.We agree these are two important ways of determining the level of seriousness of wilful misconduct. Whether by determining that the wilful misconduct is so bad that it warrants condemnation and punishment or by assessing how the wilful misconduct has harmed the public interest, both enquiries involve a question of fact and degree. 72.The Court emphasised that context was an important consideration when determining the seriousness of the misconduct. In a case where the wilful misconduct of the office holder involved the provision of information to the media, the disclosure of the information may be in the public interest. The provision or use of confidential public information covers a very wide range of disparate wrongdoing. 73.In determining whether the misconduct is sufficiently serious to cross the criminal threshold in the context of an authorised provision of confidential information in breach of duty or breach of trust by a public officer, it will be appropriate to consider, firstly, whether the misconduct is worthy of condemnation and punishment, and, secondly, whether objectively the provision of the information by the officeholder in deliberate breach of his or her duty has the effect of harming the public interest.[90] This will necessarily require a consideration of 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[91] as well as the effects or consequences of the abuse of the office, including the harm to the integrity of the system to which the office relates and the public confidence in such a system (the harm to the public interest).[92] Whilst the offence can be committed for no discernible or provable reason or motive, if one is shown, it could have a bearing on the element of seriousness.[93] 74.In the present case, the context of the appellant’s conduct is important, particularly the appellant’s reason or motive for disclosing PW3’s personal information, the consequences of the disclosure and the harm to the public interest. Submissions on seriousness 75.Mr Tsoi submitted that the Judge erred in concluding that the appellant’s conduct reached the requisite level of “seriousness” to constitute criminal conduct, in particular, he erred in not giving sufficient weight to these matters: (1) the case concerned a single incident of breach of confidentiality; (2) nothing similar had occurred in the many years of public service by the appellant in the Medical Council; (3) the evidence pointed to a mistake or error by the appellant acting out of altruism, not an intentional abuse of public office; (4) the appellant having recused herself in relation to PW3’s complaint did not act in conflict with the interests of the Medical Council and her conduct did not affect its public function; and (5) any actual harm to public interest caused by this single incident was very limited. 76.In contrast, Ms Human Lam, with Mr Wayne Lee, for the respondent, argued that particular (a) itself was misconduct of a serious nature, and the additional finding of particulars (b) and (c) would make the offence a more serious one. She contended that while the Judge did not find particular (b) proven the combined effect of particulars (a) and (c) satisfied the “seriousness” threshold. She further argued that the disclosing of confidential information was a serious matter and referred to several cases, but they involved a public official disclosing confidential information for payment or for an improper motive. 77.As pointed out by Mr Tsoi, PW3 knew his personal information had been provided to PW4 and later had meetings with PW4 and the appellant. He argued that the Judge’s findings that the appellant did not have an improper motive in disclosing PW3’s personal information and did not tout nor intend to tout for PW3’s legal work, to be an important consideration as to whether the appellant’s misconduct met the “seriousness” threshold. He complained that when addressing the element of seriousness, the Judge failed to take into account the appellant’s positive good character and desire to assist PW3 with his complaint. Submissions on the alternative means to address the appellant’s concerns 78.Allied to the issue of seriousness is the complaint that the Judge wrongly considered the reasonableness of the appellant’s alleged misconduct instead of her excuse for her actions: HKSAR v Ho Loy [94]. Mr Tsoi submitted that the Judge fell into error by concluding that the appellant’s acts were unreasonable because there existed alternative means to address any concern that the appellant had for PW3. He argued that the Judge’s conclusion the appellant could have assisted PW3 by alternative means without misconducting herself did not address the “reasonable excuse” defence and thereby deprived her of an answer to the offence. He submitted that the Judge, having accepted that the appellant may have acted out of a genuine or altruistic motive to assist PW3, who she had perceived was suffering from depression, should have concluded that this amounted to a “reasonable excuse” in all the circumstances. 79.Ms Lam submitted that the Judge was plainly aware of the excuse given by the appellant that she was motivated by a desire for SOCO to assist PW3, but he considered it was not reasonable for the appellant to disclose confidential information concerning PW3 to an outside party.[95] She contended that the disclosure of PW3’s personal information, even for an altruistic motive, could not constitute a reasonable excuse or justification for the appellant to then act for PW3 in a civil action as a paid legal representative against the complained doctor. Submissions on the breach of duty of nondisclosure 80.Mr Tsoi submitted that the Judge erred in characterising particular (a) as a “breach of duty by failure to act” or nonfeasance type of misconduct for which no improper motive was required and finding that the appellant’s disclosure was a “deliberate act” done when she knew it was a breach of the data protection principles. Consequently, the Judge (1) failed to fully apply the principles in Shum Kwok Sher and did not properly assess whether the unauthorised disclosure was done with improper motive or purpose; (2) wrongly limited his consideration of the appellant’s altruistic motive only when assessing the elements of “seriousness” and “reasonable excuse”; and (3) did not properly assess how his finding on the appellant’s altruistic motive could be consistent with an intention to abuse her office. As a result, the appellant was convicted irrespective of her benign motive or altruistic purpose for the disclosure. 81.Ms Lam argued that the misconduct in particular (a) was not about the appellant’s substantive duty of handling medical complaints, but rather her breach of duty of confidentiality, a non-performance of duty[96], thus an improper motive was not required. She also noted that the defence had changed its stance on the issue: at the beginning of the trial, the defence maintained that improper motive was required in addition to wilfulness[97], but at the presentation of closing addresses, the defence accepted that motive was not an element of the offence[98]. She submitted that the categorisation of particular (a) turned on a consideration of the facts and circumstances as a whole, which was linked to the element of seriousness. Submissions on the acceptance of a legal retainer 82.It was argued by Mr Tsoi that the Judge erred in holding that the act of the appellant in accepting PW3’s offer of retainer (particular (c)) constituted criminal misconduct. He contended that: (1) the appellant’s acceptance of the retainer was not an act that related to her public office in the Medical Council, and did not have a necessary link to the appellant’s powers, duties or responsibilities in relation to the Medical Council that would have been known to her; (2) the Judge failed to consider that having made the findings that there was no touting (particular (b)) and the appellant may disclose PW3’s contact information out of an altruistic motive, there was a disconnect between the unauthorized disclosure (particular (a)) and the ultimate acceptance of the retainer (particular (c)) such that the latter was not the appellant’s intended consequence when the disclosure was made; (3) the Judge wrongly equated the appellant’s act of accepting the retainer as a solicitor, with other cases involving abuse of office for personal gain which were given to them on account of their public office, such as Sin Kam Wah and Chapman; (4) the Judge wrongly found that the appellant had an intention to abuse her office when accepting the retainer; and (5) the Judge wrongly used the “chain of causation” to find misconduct (i.e. the appellant would not have been offered the retainer but for her unauthorised disclosure), when the law required both an objective discernible link between the appellant’s conduct and her public office for personal gain, and a subjective appreciation of that link by the appellant. 83.Ms Lam maintained that the prosecution case was that particulars (a) to (c) were interrelated, and particular (c) was an extension of particular (a). She argued that the retainer was obtained as a consequence of a meeting arranged by PW4, who arranged the meeting with the use of the confidential information provided by the appellant obtained in her capacity as a lay member of the Medical Council. Although the Judge did not find that the appellant caused PW4 to arrange the meeting or solicit a legal retainer in the meeting (particular (b)), she submitted that there was sufficient connection between particulars (a) and (c), and the Judge had correctly identified the connection.[99] The Judge did not state that the appellant’s case was comparable to Sin Kam Wah and Chapman, and they were only used as examples. The Judge also correctly found there was clear and agreed evidence of the appellant’s acceptance of instructions from PW3 “for personal benefit which would supply the necessary improper motive” for particular (c)[100]. Discussion 84.In the present case, elements (3) and (5) are of particular relevance to the question of whether the appellant has misconducted herself in public office. As explained in Tsang Yam Kuen Donald [101], element (4) is an additional requirement to element (3) that may become relevant where a wilful failure to meet standards has occurred but is sought to be excused or justified. It was noted that in some cases, the potential for excuse or justification may be built into the standard itself. 85.We consider there was no basis on which to submit that the appellant’s conduct was excused or justified in the circumstances of this case. 86.We agree with the Judge’s observation that there were other means available to the appellant to assist PW3 with any perceived mental health problems or in any legal action against Dr W. PW3 could have simply been advised through the official channels of the Medical Council of any appropriate referrals to address these matters. Whether this would have been practical and effective is another question. It may explain why the appellant took the action she did. 87.Whilst there may have been other means for the appellant to address her concerns about PW3, the question remained whether the appellant’s conduct was excused or justified. As a lay member, the appellant had a duty to maintain confidentiality of information and material she acquired in the course of her public office and to avoid any conflict of interest. She disclosed confidential information regarding PW3 that she acquired as a lay member, which eventually led PW3 to commission the appellant’s firm to act on his behalf in a civil claim against Dr W. No matter how genuine her concerns may have been about PW3, it did not provide an excuse or justification for her conduct. 88.The appellant acknowledged in her evidence that she was aware of and infringed the data protection principles concerning PW3’s information that had been entrusted to her as a lay member by the Medical Council.[102] This constituted a breach of duty by failure to act. She had a duty to maintain the confidentiality of the information and material she acquired in the course of her public office, which she failed to uphold.[103] 89.It would appear that this matter arose after PW3 received a legal bill of costs and disbursements on 15 May 2019, which was subsequently reduced to about $528,000. PW3 made complaints against the appellant to various bodies, including the Law Society, the Medical Council and the Privacy Commission. He terminated the legal services of Fongs on 18 May 2019 and eventually his claim against Dr W was settled, and he was paid $670,000 in damages and $520,000 for costs.[104] There was no issue before us that the legal costs of PW3’s civil claim against Dr W were not properly incurred, which included medical reports and counsel’s fees. 90.One of the principal functions of the Medical Council is to receive complaints from members of the public against medical practitioners and to consider whether the complaint warrants investigation. If it does, a formal process is undertaken to investigate the complaint and take disciplinary action against the medical practitioner if it is found to be proven. Any redress by way of a civil action against the medical practitioner or the provision of support services to a complainant is outside the purview of the Medical Council. 91.As a lay member, the appellant was obliged to maintain and preserve the confidentiality of information entrusted to her by the Medical Council, and not to use her position other than according to her statutory duties and functions. We observe that there may be situations where this is not strictly adhered to for legitimate and proper reasons, such as, giving a presentation or participating in a discussion regarding Medical Council cases before a professional body, or promoting the position of a lay member of the Medical Council as a professional qualification. This highlights the importance of assessing the seriousness of the impugned conduct by its effects and consequences, as well as the degree of any harm to the public interest. 92.The question of seriousness will usually arise when it is shown that misconduct has been found to have taken place and whether, in all the circumstances, it has resulted in harm to the public interest that calls for condemnation and punishment. As stated in Chapman, misconduct is judged objectively by considering whether the provision of information by the office holder in deliberate breach of his or her duty had the effect of harming the public interest. 93.Whilst the Judge provided a detailed consideration of the individual elements of the offence, we consider that his concluding remarks regarding the appellant’s conduct went further than the evidence allowed and he failed to appropriately take into account material matters that impacted on the threshold of seriousness. As already noted, it was not in dispute that the appellant had committed particular (a) (the breach of privacy) and particular (c) (the acceptance of instructions). In respect of the breach of privacy, the Judge found that the appellant’s conduct “caused damage to the reputation, professionalism and credibility of the Medical Council and/or made the public cast doubts on the ability of the Medical Council in preserving the confidentiality of personal data.”[105] In respect of the acceptance of instructions, the Judge found that the appellant acquired PW3’s personal information from the Medical Council file, and in accepting instructions from him, she abused her public office “for pursuing private gain”, which in the context of the case was an improper motive.[106] The Judge went on to find that the appellant’s conduct had an adverse impact on public confidence and damaged the integrity of the Medical Council’s complaint regime.[107] 94.We have difficulty accepting the Judge’s conclusions based on the evidence and other findings he made. The evidence strongly pointed to the appellant acting out of concern for PW3 to help him with his medical problem and complaint.[108] The Judge did not find that the appellant’s conduct was driven by a desire to tout legal work. He found particular (b) that the appellant had arranged a meeting with PW3 to tout legal work from him had not been proven. In the initial discussions between the appellant and PW3, which PW4 had arranged, she gave PW3 pro bono legal advice and informed him of the three year statute of limitation to a civil claim against Dr W. After she had discussed PW3’s case with him, he was to collect his papers from her, and it was for him to take whatever action he thought necessary. It was PW3 who requested that the appellant act on his behalf in a legal claim against Dr W. 95.There was no complaint or concern by PW3 that his personal information had been given to PW4. The Judge found that PW3 had given his ex post facto consent for his personal information to be used to make contact with him. In other words, PW3 was not aggrieved by his privacy rights having been infringed. This did not sit well with the Judge’s finding that there was “a serious infringement” of PW3’s privacy rights. We consider that the Judge had not sufficiently taken into account the investigation and outcome by the Privacy Commission of the appellant’s disclosure of the PW3’s particulars to PW4. The investigation was conducted in 2019, and as a result, the Privacy Commission gave the appellant a warning and stated that no further action would be taken.[109] 96.We agree with Mr Tsoi’s submission regarding the factors he identified that went to the element of seriousness. As noted by him, this was a single incident of breach of confidentiality that involved limited harm to the public interest when taking into account that the appellant acted out of altruism in disclosing PW3’s details to PW4 after recusing herself from any further involvement in PW3’s complaint with the Medical Council. PW3 raised no concern that his information had been disclosed by the appellant to PW4 and he accepted the help offered to him by SOCO.[110] As pointed out, the present case stood in stark contrast with other cases that were held to constitute misconduct in public office where the confidential information disclosed was substantial and the misconduct was accompanied by a payment or an improper motive.[111] 97.There is substance in Mr Tsoi’s submission that it was PW3’s initiative to retain the appellant, who merely agreed to act for him. It was not the case, nor had it been proven, that the appellant disclosed PW3’s details in order to obtain legal work from him. In fact, the converse was true, and she was motivated by a desire to help PW3. Despite Mr Tsoi arguing to the contrary, there was a discernible link between the appellant’s public office and her acceptance to act for PW3. However, we agree with Mr Tsoi, to this extent that even if there was such a link, this was not a case where the disclosure of the information was for reward or other improper purpose, such as to obtain legal work from PW3.[112] 98.In our view, the appellant’s impugned conduct had a limited impact on her responsibilities in her public office as she recused herself regarding PW3’s complaint. Relevantly, it did not affect the Medical Council’s public functions or undermine its impartiality in dealing with this and other complaints. 99.In assessing the harm to the public interest, we consider the Judge had erred by examining the issue in theoretical terms rather than by assessing the actual harm done to the public interest. As argued by Mr Tsoi, the Judge’s finding of serious harm to the public interest would apply to all breaches of confidentiality. He argued that a breach of confidentiality in itself would not normally give rise to sufficiently serious harm to constitute criminal misconduct. It would usually need to be accompanied by an improper purpose or motive. He noted that in the present case, the appellant disclosed PW3’s information, for an altruistic motive and reiterated that when the appellant disclosed PW3’s information she did not intend to tout or obtain a retainer, rather it was PW3, who ultimately engaged the appellant some two months after the disclosure. Whilst we accept that giving pro bono legal advice is likely to lead the recipient to commission the lawyer providing such advice to act for him or her, we are nevertheless satisfied, as was the Judge, that was not the appellant’s intention. 100.We are of the view that the Judge failed to appropriately take into account the following material matters: (1) the appellant did not arrange the contact by PW4 of PW3 to tout for legal work from PW3; (2) the appellant provided PW3’s personal information to PW4 out of concern for PW3’s wellbeing because of the condition of ENS, and to help him with any claim against Dr W; (3) PW3 had given ex post facto consent for his personal information to be conveyed to PW4; (4) the Privacy Commission investigated the disclosure by the appellant of PW3’s personal information and merely issued a reprimand to her; (5) the use of the confidential information was a single incident; and (6) the appellant had recused herself from any further involvement in PW3’s complaint with the Medical Council. Consequently, the way in which the appellant’s conduct harmed the public interest was not addressed by the Judge in its proper context but rather in general and theoretical terms. 101.It is instructive to stand back and consider the circumstances that led the appellant to recuse herself from considering PW3’s complaint and then disclose his contact details to a social justice organisation to assist him with his complaint against Dr W; and to accept PW3’s instructions to act for him after giving him pro bono advice on a potential claim against Dr W and take what action he thought necessary. In light of the Judge’s finding that the appellant did not tout legal work, the essence of the mischief in this case was the disclosure of PW3’s personal information to PW4. Importantly, the Judge’s finding eliminated the allegation that the appellant disclosed PW3’s information for personal or monetary gain. However, he found that the appellant accepted the instructions from PW3 for personal or monetary gain. With respect, we are not satisfied that the Judge properly considered all the facts and circumstances leading up to her acceptance of instructions from PW3, given that the appellant acted out of concern for PW3 in disclosing his personal information to PW4 and that she had given him pro bono advice about his case on the basis that he was to collect his papers and take what action he thought necessary. 102.We have no doubt that the appellant was motivated out of genuine concern to help PW3 because of the hardship that he had suffered and her experience with other complaints against Dr W. That was revealed by her involvement in a public campaign to increase community awareness of the consequences of ENT surgery and the risk of the condition of ENS. Once it was established that the appellant did not disclose PW3’s personal information in order to secure legal work from him, her subsequent receipt of instructions from PW3 was done to assist him and not for personal gain or profit. We are satisfied that the appellant’s conduct did not cross the threshold of seriousness. We should add that had it been the case that the appellant disclosed PW3’s personal information in order to secure legal work from him, her conduct would have constituted misconduct in public office. However, this was not the case. 103.People make mistakes. When it comes to a mistake made by a public official, it is important that the element of seriousness for this offence be put in context. It is determinative as to whether the person who has committed the mistake has harmed the public interest so as to call for condemnation and punishment. The reason why a person has made the mistake can be just as important a consideration as the nature of the mistake itself, particularly in a case of this type. Where an offence has the “seriousness” of the impugned conduct as an element, it is imperative that it be considered in its full and proper context, together with the reasons for and the consequences of the impugned conduct. Moreover, when considering the extent of the harm to the public interest, it must be based on a realistic and common sense assessment of the public interest and how it has been affected by the impugned conduct. That is achieved by identifying the public interest sought to be served by the duty and whether any breach of the duty has amounted to an affront to the standing of the public office. This leads to the ultimate question, as to whether the conduct was so serious as to merit criminal punishment. 104.The public interest served in this case arose from the appellant’s position as a member of a statutory body established to investigate and determine complaints from members of the public against medical practitioners, which required her to use information and materials obtained during that process in accordance with her statutory duties and functions. In the course of performing his or her duties or functions, a member of the Medical Council may acquire information that is not available to the public, which the public interest requires should be kept confidential. It is, therefore, incumbent on a member of the Medical Council not to reveal or use such information for personal gain or for any purpose not related to his or her duties or functions. We do not consider that there was a serious infringement of PW3’s privacy rights, nor that the appellant accepted the instructions from PW3 for personal gain. On these matters, we disagree with the Judge. As found by the Judge, it was not the appellant’s intention to secure legal work from PW3 but rather to help him with his complaint against the medical practitioner. In our view, it was not by design on the appellant’s part that led PW3 to instruct her to act for him in a claim against the medical practitioner. It was the way the circumstances unfolded that she accepted the instructions from him. That was her mistake, or more accurately, an error of judgement on her part. 105.We have addressed the appellant’s responsibilities as a lay member of the Medical Council and the important public objects they serve in the conduct of complaints against medical practitioners. With that in mind, we are satisfied that the nature and extent of the appellant’s departure from those responsibilities did not undermine public confidence in the Medical Council’s processes in dealing with complaints against medical practitioners, nor the fairness and probity of its investigation into PW3’s complaint against Dr W. 106.The appellant was 65 years of age with no other previous convictions and an impeccable record of public service over many years. She was a senior solicitor who acted as a consultant in Fongs and had been a lay member of the Medical Council for 6 years without any complaint or incident. This was not a premeditated scheme to procure clients for financial gain, or even a one-off occasion to do so. Whilst she acted out of a momentary error of judgement in disclosing PW3’s details to PW4, it does not appear that an appropriate assessment was made of the nature and degree of the conduct involved and its true effect on the public interest. 107.The appellant was motivated by good intentions, yet her conduct did constitute an error of judgement that warranted admonishment. It was a mistake on her part but not one that warranted a criminal sanction. Upon the principal finding that she was not touting for legal work and acted out of concern for the complainant, the harm to the public interest was not of sufficient severity to merit this conviction. Conclusion 108.For the foregoing reasons, we were satisfied that the appeal against conviction should be allowed. Accordingly, the appellant’s conviction was quashed, and her sentence was set aside. 109.We had heard submissions on costs. As there was no dispute that the costs of this appeal should follow the event, we ordered that the respondent pay the appellant’s costs of the appeal, including the leave application, with a certificate for two counsel.
Ms Human Lam, SPP, of Department of Justice, for the respondent Mr Benson Tsoi, SC and Ms Joyce Lai, instructed by Haldanes, and Mr Joshua Wang (on a pro bono basis), for the appellant [1] [2024] HKCA 576, per Zervos JA. [2] Section 20BA(2) of the Medical Registration Ordinance. [3] Appeal Bundle (AB), 55, Reasons for Verdict, at [72]. [4] Dr U v Preliminary Investigation Committee of the Medical Council of Hong Kong [2016] 4 HKLRD 31, at [38]. [5] AB, 76-77, Reasons for Verdict, at [130]. [6] AB, 15, Admitted Facts, at [7]. [7] AB, 15, Admitted Facts, at [9]; AB, 401V-402A. [8] AB, 15, Admitted Facts, at [10]. [9] AB, 48, Reasons for Verdict, at [64]. [10] AB, 48-51, Reasons for Verdict, at [64]-[66]. [11] AB, 429I and 433J-S. [12] AB, 35, Reasons for Verdict, at [41]. [13] AB, 25, Reasons for Verdict, at [12]. [14] AB, 438G-T. [15] AB, 440N-445N. [16] AB, 453C-M. [17] AB, 453C-M. [18] AB, 41-42, Reasons for Verdict, at [49]-[53]. [19] AB, 455Q-R. [20] AB, 459C-Q. [21] AB, 459C-R. [22] AB, 460Q-468R. [23] AB, 79, Reasons for Verdict, at [140]. [24] AB, 34-40, Reasons for Verdict, at [40]-[46]. [25] AB, 69, Reasons for Verdict, at [111] and [112]. See also AB, 68-69, Reasons for Verdict, at [106]-[112] and AB, 48-52, Reasons for Verdict, at [64]-[66]. [26] AB, 68-69, Reasons for Verdict, at [106]-[112]. [27] AB, 57-61, Reasons for Verdict, at [80]-[88]. [28] AB, 71-80, Reasons for Verdict, at [120]-[142]. [29] AB, 75-78, Reasons for Verdict, at [126]-[134]. [30] AB, 78, Reasons for Verdict, at [135]-[137]. [31] In Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, at [45] and [46], Sir Anthony Mason NPJ reformulated the offence as set out in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, to take into account concerns about the mental element made in Re Attorney-General’s Reference (No 3 of 2003) [2005] QB 73. See also Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745, at [29]; HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185, at [18]-[22]. [32] It is appropriate to note that the English Court of Appeal in AG’s Ref (No 3 of 2003), at [61], state the elements of the offence in a slightly different form: (1) a public officer acting as such who, (2) wilfully neglects to perform his duty/or wilfully misconducts himself, (3) to such a degree as to amount to an abuse of the public’s trust in the office holder, (4) without reasonable excuse or justification. [33] Wong Lin Kay, at [43] and [46]. [34] HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264. [35] Hui Rafael Junior, at [47], quoting the definition of misconduct in public office by Professor PD Finn and the judgment of Redlich JA in R v Quach (2010) 201 A Crim R 522, at [37] and [40]. [36] Hui Rafael Junior, at [48]. [37] R v Belton [2011] QB 934, at [28] and [29]. [38] See Wong Lin Kay, at [19]; R v Belton, at [28] and [29]; R v Cosford [2013] 2 Cr App R 8, at [34] and [36]; R v Mitchell [2014] 2 Cr App R 2, at [16]-[18]. [39] Mitchell, at [16]. [40] Wong Lin Kay, at [20], where Ribeiro PJ noted that such abuse could take many forms, including dereliction of duty, misuse of powers and misconduct related to the public office, quoting Shum Kwok Sher, at [81]. [41] Wong Lin Kay, at [22]. [42] AB, 52-55, Reasons for Verdict, at [69]-[73]. [43] Wong Lin Kay, at [46]. [44] Wong Lin Kay, at [19] and [46]; Shum Kwok Sher, at [81]; Huy Vinh Quach, at [37] and [40], where the Victorian Court of Appeal applied Sin Kam Wah, at [42]-[48]. [45] AB, 57, Reasons for Verdict, at [77]. [46] AB, 61, Reasons for Verdict, at [87]. [47] AB, 61-62, Reasons for Verdict, at [87]-[89]. [48] HKSAR v Tsang Yam Kuen, Donald (2019) 22 HKCFAR 176, at [32]-[34], [62] and [74]. [49] Sin Kam Wah, at [46]; Hui Rafael, at [52]-[59]; Tsang Yam Kuen, Donald, at [61]-[74]. [50] Attorney-General’s Reference (No 3 of 2003), 83, at [30]. [51] AB, 63-67, Reasons for Verdict, at [96]-[104]. [52] AB, 67, Reasons for Verdict, at [103]. [53] AB, 64 and 67, Reasons for Verdict, at [99] and [102]. [54] AB, 67, Reasons for Verdict, at [103]. [55] Tsang Yam Kuen Donald, at [25]. [56] R v L (D) [2011] 2 Cr App R 14, at [21]. [57] AB, 69, Reasons for Verdict, at [113] and [114]. [58] AB, 70, Reasons for Verdict, at [118]. [59] AB, 68-69, Reasons for Verdict, at [106]-[112]. [60] AB, 69-70, Reasons for Verdict, at [113]-[117]. [61] AB, 70-71, Reasons for Verdict, at [118]. [62] Tsang Yam Kuen, Donald, at [72]; Shum Kwok Sher, at [76], [77] and [86]; HKSAR v Ho Hung Kwan, Michael (2013) 16 HKCFAR 525, at [26], [32] and [39]; Chan Tak Ming, at [24]-[27]. [63] R v Chapman [2015] 2 Cr App R 10, at [18], [31]-[35] and [48]. [64] AB, 75, Reasons for Verdict, at [126]. [65] The Medical Council’s website listed a Personal Information Collection Statement and Privacy Policy. AB, 75-76, Reasons for Verdict, at [128]. [66] AB, 75-78, Reasons for Verdict, at [127]-[132] and [135]-[137]. [67] AB, 77-78, Reasons for Verdict, at [133]-[134]. [68] AB, 78, Reasons for Verdict, at [135]. [69] AB, 78, Reasons for Verdict, at [136]-[137]. [70] AB, 78-79, Reasons for Verdict, at [138]-[141]. [71] HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, at [29], [30] and [32]. [72] Chapman, at [30]-[33]. [73] Chan Tak Ming, at [24]-[26]. [74] Shum Kwok Sher, at [81] and [82]. [75] Tsang Yam Kuen Donald, at [25] and [34]: element (5) of Sir Anthony Mason NPJ’s reformulation of the offence. See also A-G’s Reference (No 3 of 2003), at [46], [56] and [58]-[60]; Chan Tak Ming, at [24], [25] and [27]; Wong Lin Kay, at [24]; Ho Hung Kwan Michael, at [25]-[32]; and Chapman, at [31]-[35]. [76] Shum Kwok Sher v HKSAR(2002) 5 HKCFAR 381, 409-410. [77] Attorney General’s Reference (No 3 of 2003), 87-88. [78] Element (5) of Sir Anthony Mason NPJ’s reformulation of the offence as set out in [45] of Hui Rafael Junior. [79] AB, 75, Reasons for Verdict, at [124]. [80] AB, 74, Reasons for Verdict, at [122]. [81] R v Dytham [1979] QB 722. [82] Dytham, 727E-H. [83] Dytham, 727H-728A. [84] Attorney General’s Reference (No 3 of 2003), at [46]. [85] Attorney General’s Reference (No 3 of 2003), at [56]. [86] Attorney General’s Reference (No 3 of 2003), at [57]. [87] Chapman, at [30] and [31]. [88] Chapman, at [34]. [89] Chapman, at [35]. [90] Chapman, at [34]-[36]. [91] Sin Kam Wah, at [45]. [92] Ho Hung Kwan Michael, at [29]-[32] and [39]. [93] Chan Tak Ming, at [26]. [94] HKSAR v Ho Loy (2016) 19 HKCFAR 110, at [36]. [95] AB, 68-70, Reasons for Verdict, at [110], [114] and [115]. [96] The Respondent’s Written Submission, at [33]. [97] AB, 343T-365M, in particular AB, 360Q-T. [98] AB, 645L-646O. [99] AB, 44, Reasons for Verdict, at [59]. [100] AB, 18-19, Admitted Facts, at [21]-[24]. It was admitted that there was a draft proforma invoice in the sum of $716,007.60. [101] Tsang Yam Kuen Donald, at [25]. [102] AB, 67, Reasons for Verdict, at [102]; AB, 491K-492C. [103] AB, 64-67 and 69-70, Reasons for Verdict, at[98]-[117]. See also HKSAR v So Ping Chi [2019] 1 HKLRD 140, at [38]-[43]. [104] AB, 19, Admitted Facts, at [24] and AB, 697-698. [105] AB, 77-78, Reasons for Verdict, at [133]. [106] AB, 78-79, Reasons for Verdict, at [135] and [141]. [107] AB, 78, Reasons for Verdict, at [136]. [108] AB, 47, 52 and 69, Reasons for Verdict, at [62], [66], [111] and [112]. [109] AB, 97F-N. [110] AB, 36, 38 and 60, Reasons for Verdict, at [43(w)], [44(ff)] and [85]; 438G-K and 452F-J. [111] See Chan Tak Ming v HKSAR [2010] 3 HKC 382, at [3]: involving 2000 breaches of confidentiality in accessing patients records; HKSAR v Chu King Kwok, unrep., HCMA 855/2009, 19 April 2010, at [6]: involving personal data of 18,300 taxpayers over a period of 2 ½ years. [112] For example, see Chapman, at [36], where the disclosure was for private gain. |
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