HKSAR v. Sham Chor Wai

HCMA001320/2000

HCMA1320/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1320 OF 2000

(ON APPEAL FROM SPCC 4421 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 29 March 2001

Date of Judgment: 29 March 2001

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J U D G M E N T

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1. The appellant was convicted on 3 October 2000 of three charges of communicating to another any matter coming to a person's knowledge in the exercise or performance of any duty or function under the Hong Kong Examinations Authority Ordinance ("the Ordinance), contrary to sections 15(1)(b) and (3) of that Ordinance. He now appeals that conviction. He was sentenced on 18 October 2000 to perform 130 hours of unpaid work under a Community Service Order.

2. The appellant was a teacher at a school and the school was approached to be a centre for examinations held pursuant to the Hong Kong Examinations Authority Ordinance. The appellant was specifically offered the post of Centre Examiner. To that end, he was sent a letter dated 3 March 2000 which commenced :

"I have pleasure in offering you appointment as Centre Examiner for your school centre in respect of the above examination on the following days: ... "

That related to the Physics Practical Examination. The appellant was to be responsible for the preparation and proper conduct of the examination and the marking of candidates' scripts at the school centre. For this, he was to be paid a fee, both for conducting the examination and the marking of the examination scripts. The appellant revealed to other the equipment to be used in the examination in advance of the examination and this was held to be in breach of section 15 of the Ordinance.

3. Mr Tse for the appellant argues, as he did very fully before the magistrate, that the appellant was not appointed pursuant to the Ordinance. He argues that any person appointed to any position under the Authority must be appointed pursuant to the powers of the Authority set out in section 7(2) of the Ordinance. He argues that if the particular post to which the appointment is purported to be made does not fall within that subsection, then it is not an effective appointment. That section reads :

"7. Powers and duties of the Authority

(1) Subject to section 13, the Authority shall have powers to do all such things as are necessary or advantageous and proper in planning and conducting examinations in Hong Kong and shall -

(a) conduct the specified examinations;

(b) determine the educational requirements necessary for candidates to be eligible to sit specified examinations;

(c) make rules to regulate the conduct of candidates sitting specified examinations and the exclusion of candidates from sitting specified examinations for breach of any such rule;

(d) approve syllabuses for specified examinations;

(e) award certificates to candidates who attain a standard determined by the Authority in specified examinations.

(2) Without restricting subsection (1), the Authority may for the purposes referred to therein -

...

(e) appoint, on such terms and conditions of service as it thinks fit, the Secretary of the Authority and such staff, advisers and consultants as the Authority considers necessary;

(f) enter into arrangements with persons, firms or agencies for the supply of services or facilities;

... "

4. Mr Tse argues that the appointment of the appellant does not fall within the definition of "staff, advisers and consultants" as referred to in section 7(2)(e) but was, at the best, an arrangement with a person for the supply of service set out in section 7(2)(f). He said that if an arrangement does not encompass an appointment and therefore whilst an arrangement may have been made with the appellant, the magistrate was in error in finding that he had been appointed.

5. The second limb of Mr Tse's argument is that in his findings, the magistrate said this :

"6(i). It was submitted that the terms of engagement for each defendant as set out in P1 and P2 did not constitute proof that they were persons appointed under Cap 261 or persons employed to carry out its provisions and that they were not seized of the duties of confidentiality prescribed in s.15(1)(a). The submissions are all on record. In considering these submissions I used the ordinary and usual meaning of the word 'appointment' meaning : to name or select for an office or position, to designate or to place in an office. There is no definition provided in the Ordinance.

6(ii). I found that, bearing in mind the terms of Ex. P1, 1B, P2, 2B and upon proper construction of the Ordinance that the EA :

(a) did have jurisdiction to hire persons such as the defendants and,

(b) that each defendant was 'appointed' under Cap.261 and was bound by the duties, that he :

{s15(1)(a)&(b)}

(a) shall preserve and aid in preserving secrecy with regard to all matters coming to his knowledge in the exercise or performance of any duty or function under this Ordinance;

(b) shall not communicate any such matter to any persons; ... "

6. Mr Tse argues that the magistrate was in error in the manner in which he approached the definition of "appointment" and whether the appellant was appointed under the Ordinance by not setting out under which section or subsection of the Ordinance he found that the appellant had been appointed.

7. Mr Zervos for the respondent argues that section 7 of the Ordinance is not limited by subsection (2), that the powers to do all such things as are necessary or advantageous and proper in planning and conducting examinations are not restricted in any way within that subsection and do no more than given indication of the nature of such of the duties as may be performed by the Authority. He points me to section 19 of the Interpretation and General Clauses Ordinance, Cap.1 which reads :

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

He argues that the purpose of the Ordinance is to conduct examinations and the purpose of section 7 is to give the Authority power to take into its organization, such persons as are necessary to plan or conduct examinations and upon such terms as it deems fit to appoint them to carry out those works. He argues that the appellant comes under the definition of "staff" and that, in any event, if he did not, he entered into an arrangement pursuant to section 7(2)(f) and that arrangement could be an appointment.

8. I have given close consideration to the arguments of counsel. I am of the view that I must adopt an interpretation of section 19 which provides a fair, large and liberal construction as will best ensure the attainment of the object of the Ordinance.

9. In my view, section 7(2) does not limit or restrict the broad powers set out in section 7(1) and granted to the Authority. For avoidance of any doubt, I also hold that the appellant would come within the definition of "staff" under section 7(2)(e) even though he is described as an independent contractor provided he carries out the objects of the Authority, in this case, to conduct the specific examination can fall within the definition of staff. The first head of Mr Tse's grounds of appeal must fail.

10. The second ground is the magistrate has failed in his approach in that he should have defined under which section or subsection he found that the appointment failed is one which must also fail. The learned magistrate was clearly aware of the submissions. He said specifically that he considered the submissions and he found that "upon proper construction of the Ordinance" that the jurisdiction to hire such person as the appellant was a proper power under the Ordinance and that the appellant had been appointed under that Ordinance.

11. It is clear therefore that he considered each and every provision of the Ordinance and each section and subsection. It is not necessary for him to point specifically upon which particular wording of the Ordinance he relied. I am satisfied that his approach was proper and that his findings were consistent with the evidence and the Ordinance. This appeal against conviction must fail.

Representation:

Mr K. P. Zervos, SADPP and Mr Gary Lam, GC of Department of Justice, for HKSAR

Mr Joseph Tse, instructed by Messrs Wong, Hui & Co., for the Appellant