HKSAR v. Chan Tak Ming, Paddy
Read the full judgment text of HCMA 851/2009 on BabelCite. This High Court CFI judgment was delivered on 12 March 2010.
1. The appellant appealed against both his conviction after trial at Kowloon City Magistracy by D.I. Thomas Esq of a charge of misconduct in public office, contrary to common law, and the sentence of $50,000 imposed upon him in consequence of his conviction. The magistrate entered no verdict in respect of the alternative charge, which he ordered to lie on the file of the court. At the outset of the hearing Mr Macrae SC, who appeared from the appellant, indicated that the appeal against sentence
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HCMA851/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 851 OF 2009 (ON APPEAL FROM KCCC 1234 OF 2009) ------------------------ BETWEEN
------------------------ Before : Hon Lunn J in Court Date of Hearing : 25 February 2010 Date of Judgment :12 March 2010 ----------------------- J U D G M E N T ----------------------- 1.The appellant appealed against both his conviction after trial at Kowloon City Magistracy by D.I. Thomas Esq of a charge of misconduct in public office, contrary to common law, and the sentence of $50,000 imposed upon him in consequence of his conviction. The magistrate entered no verdict in respect of the alternative charge, which he ordered to lie on the file of the court. At the outset of the hearing Mr Macrae SC, who appeared from the appellant, indicated that the appeal against sentence was abandoned. THE CHARGES 2.The appellant stood trial on two charges, the second in the alternative to the first charge of misconduct in a public office. The “Particulars of Offence” of Charge 1, as re-amended in the course of the trial, alleged that :
In the alternative, Charge 2 alleged that between mid-January and early February 2007 the appellant had obtained access to a computer, namely a computer of the Hospital Authority, with a view to dishonest gain for himself or another, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200. BACKGROUND 3.The appellant, a registered medical doctor, was employed at the Queen Elizabeth Hospital from 1989. From April 1995, he had been employed as a senior medical officer in Team “C” in the Department of Clinical Oncology at that hospital. That was one of four such Teams, each Team being led by a consultant. On 2 January 2007, the appellant tendered his resignation from the post. His terminal leave commenced on 3 March 2007. On the same date the appellant commenced private practice. There was no dispute that prior to ceasing to work for the Hospital Authority the appellant had obtained the names and addresses of patients treated by Team “C” from records of the Hospital Authority, which information he had used to mail a letter to about 2,000 of those patients informing them of the fact of his imminent commencement in private practice on 3 March 2007. The letter read :
THE PROSECUTION CASE 4.On his/her initial visit to the Clinical Oncology Department a patient filled out a form containing personal details, including their name, identity card number, date of birth, address, telephone number, sex and the medical Team of which they were a patient. The clerk entered that data into a loose-leaf binder, known as the “Big Book”. It was maintained and replaced on an annual basis. Also, the Hospital Authority stored similar data in a computer, which dealt with the “Outpatient Appointments System”. 5.In a record of interview, conducted of him under caution by officers of ICAC on 15 August 2007, the appellant accepted that he had obtained the information from records maintained by the hospital in respect of patients and used it to send a letter to each of about 2000 patients treated by Team “C”. 6.In the first place, he obtained the information himself directly from patient records. Then, he approached a clerk in the Clinical Oncology Department, Ms Sandy Lau, and at his request she photocopied pages in manuscript records, known as the “Big Book”, for the years 2004-7 containing details of the patients treated by the Clinical Oncology Department. The records contained information of the names and addresses of those patients. From that material the appellant was able to identify from the individual files of patients those who had been treated by Team “C” and, in particular, those with whom he had formed a close long-term relationship. The appellant extracted the addresses relating to that specific category of patients and addressed in hand 500 envelopes containing his letter. 7.Ms Sandy Lau said that, when she came to realise the purpose for which the appellant required the information, she informed him that she could obtain such detail from information stored in a computer of the Hospital Authority used to print labels to be affixed to letters to be sent to patients from time to time. With the appellant’s agreement she did so and provided him with the resulting printouts. When Mr David Chan Tung Wai, Ms Lau’s supervisor, came to know of what she was doing he suggested a quicker method of printing the data. For his part, the appellant affixed the printed labels supplied to him by Ms Lau and sent out a further 1,500 letters to patients of Team “C”. 8.Mr Wong Chi Wah, a Senior Human Resources Manager in the Hospital Authority based at Queen Elizabeth Hospital produced a document entitled “Code of Conduct” published by the Hospital Authority and dated 2005. It asserted that it was the responsibility of every member of the staff of the Hospital Authority to comply with the document. Of the issue of confidentiality, it stated :
Although the “Code of Conduct” asserted that it had general application to all employees of the Health Authority, Mr Wong was unable to say whether or not it had been distributed to all such employees after it had been issued in 2005. 9.The appellant testified that, having resigned from the Health Authority on 2 January 2007, during that month he examined records of Team C’s patients where they were located on the 5th floor of Block R at Queen Elizabeth Hospital and removed adhesive labels bearing their names and addresses, which he attached to envelopes that he then sent to those patients. Also, he obtained similar information from labels attached to files of patients that he was asked to review from time to time in the “follow-up” process of treating patients. Thereafter, having written out their names and addresses on envelopes he mailed them to those patients. Subsequently, he asked Ms Sandy Lau to photocopy pages of records of the patients of Team C containing that information from the “Big Book” for the three years 2004-2006. She did so and presented him with the results. However, it was apparent from those records that after February 2004 that information did not contain the address of the patient. Finally, at her suggestion, she printed out from the computerised records information of the patient’s names and addresses on labels which she gave him and which he used to attach to envelopes that he then sent to those patients. 10.The appellant said that that his purpose in sending out the letters to this body of patients treated by Team “C” was to inform them, as a doctor who had hitherto been involved in their treatment, of the fact that he was leaving the Hospital Authority and commencing private practice :
Of the particular circumstances of a cancer patient, and the resulting relationship between the patient and treating doctor, he said :
11.The appellant said that he had never seen, let alone been given, a copy of the Code of Conduct issued by the Hospital Authority. He was aware that it existed but had never read its contents. By contrast, he testified that he was aware of the fact of the publication of the then current “Professional Code and Conduct”, issued for the guidance of registered medical practitioners by the Medical Council of Hong Kong. Indeed, it was an admitted fact that he was aware of the contents of the newsletter dated 12 March 2006 which updated section 5, “Communications in professional practice”, of the “Professional Code and Conduct”. He asserted, he had conducted himself in compliance with the Code. The patients to whom he had sent copies of the letter were all patients of Team “C” and fell to be regarded as his patients, even though he had not treated each of them personally :
12.The information that he had provided “his patients” complied with the provisions of the Code, in particular that in respect of“Dissemination of service information to patients”. In order to communicate with his patients in the manner permitted by the Medical Council, he was entitled to access records containing their names and addresses. He did not regard anything that he had done as in any way being dishonest. STATEMENT OF FINDINGS AND VERDICT 13.The magistrate determined that, whilst there was “nothing in the evidence to impugn the motives of the appellant in sending out the letter as he stated them in evidence”, nonetheless it was a “touting letter”. Having adverted in the letter to both their medical requirements and financial situation, it was “a clear invitation to recipients to leave the care of the doctors in the Clinical Oncology Department of the Queen Elizabeth Hospital and put themselves under the care of the appellant.” 14.Of the issue of the status of the recipients of the letter, the magistrate found that, since they all fell into the category of patients who had been seen or treated by members of Team “C”, he was “prepared to accept that the recipients were ‘patients’.” 15.No doubt, having regard to the absence of proof of dissemination of the “Code of Conduct”, published by the Hospital Authority, to the appellant the magistrate paid it no regard in his analysis of the evidence. 16.In respect of the nature of the content of the letter, the magistrate noted the stipulations of the Medical Council’s “Professional Code and Conduct” at section 5.2.1, namely :
17.In the result, he found that the letter asserted that (paragraph 29) :
18.Furthermore, in the context of section 5.2.4.2(d), namely that in communicating with a patient a doctor must not “abuse the patient’s trust”, he found that :
19.The magistrate stated that in examining the Medical Council’s “Professional Code and Conduct” in the detail in which he had he was mindful that infractions of the code were not matters for him. Nevertheless, he found them to “illustrate the way the appellant treated the situation and the matters that have led to the charges in this case”. THE LAW 20.The magistrate noted that the relevance of the Personal Data (Privacy) Ordinance, Cap. 486 to the conduct of medical practitioners was drawn to their attention by section 1.1.4 of the “Professional Code and Conduct”. In particular, he observed that Principle 3, of the six data Protection Principles set out in Schedule 1 of the Ordinance, provides that :
21.In addressing the issue of the ingredients in law of the offence of misconduct in public office, the magistrate stated in terms that he was bound by the decision of the Court of Final Appeal in HKSAR v Shum Kwok Sher (2005) 5 HKCFAR 381, as articulated in the judgment of Sir Anthony Mason NPJ (at paragraph 84, page 409C) namely : (1) a public official; (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4) culpably misconducts himself. 22.Of the issue of the nature and ambit of “culpable misconduct”, the judge adverted to a passage in the judgment of Sir Anthony Mason NPJ (paragraph 86, page 409C) :
23.In approaching his analysis of the evidence in the context of the ingredients of the offence alleged in Charge 1, the magistrate said :
THE SERIOUSNESS OF THE CONDUCT 24.In rejecting Mr Macrae’s submission, the magistrate found that the appellant was well aware of the status of the personal data provided by the patients and kept in the records of the Hospital Authority, in particular that they were not to be used for the personal purposes of any data user. Of that issue, he noted that initially the appellant had tried to restrict his appropriation of such data to those patients in respect of whom he thought he had a “special relationship”. However, he went on to observe :
He determined that to be :
25.The magistrate noted that the appellant had taken no advice about his proposed conduct and in doing what he did in sending letters to patients of Team C he determined that the appellant “ignored what I consider to be clear guidelines from his professional body on the advertisement of the commencement of his new practice”. No doubt, that was a reference to the magistrate’s earlier observation that section 5.2.3.3 provided that :
26.The magistrate said that in reaching the determination that he had, he took into account the appellant’s “clear criminal record” but added :
GROUNDS OF APPEAL AGAINST CONVICTION Grounds 1 and 2 27.By Grounds 1 and 2, Mr Macrae SC submitted that the magistrate had not properly addressed the issue whether or not it was proved that the appellant had “wilfully and intentionally culpably misconducted himself”. He pointed out that the magistrate had accepted that “there was nothing in the evidence to impugn the motives of the appellant in sending out the letter as he stated them in evidence”. He invited the court to note that in both his record of interview and in his evidence the appellant had said that he formed a strong bond with his cancer patients and that he wanted to let them know where he had gone after he left the Hospital Authority, which information would give them a choice of where and from whom to receive treatment. 28.Mr Macrae submitted that that the appellant’s “motive” for conducting himself as he did was highly relevant to the issue of whether his conduct was “wilful and intentional and thereby culpable”. Mr Macrae drew the court’s attention to the statement of Sir Anthony Mason in Shum Kwok Sher in respect of misconduct in public office, in areas other than non-performance of duty, namely that (paragraph 83) :
29.Mr Macrae said that the magistrate was in error to have stated that at trial the matter was no “serious issue”.
30.Mr Macrae pointed out that in R v Llewellyn-Jones (1967) 51 Cr.App.R. 4, in dealing with the issue of the relevance of motive in the ingredients of this offence, Widgery J (as he was then) observed that if the exercise of the power was done by a person for perfectly proper motives, albeit that “he knew that by a side wind, as it were, he was going to gain some personal benefit” that would be insufficient to establish the offence. Further, Mr Macrae pointed out that, in having regard to evidence of competing motives for conduct, the Court of Appeal in England Wales in R v Speechley (2004) EWCA Crim 3067 (unreported) had observed that it would be proper to direct a jury that before the offence was made out they had to be satisfied that the defendant was “motivated to a significant degree by considerations of personal advantage”. [Emphasis added.] 31.Furthermore, Mr Macrae submitted that the fact of the good character of the appellant was “vital to a proper evaluation of whether his conduct was wilful and intentional and thereby culpable”. In stating that, “the usual reasons for taking a clear record into account are not really engaged in this case”, the magistrate was in error. Ground 3 32.By Ground 3, Mr Macrae submitted that the magistrate was in error to determine that the appellant had breached the Professional Code and Conduct in the various determinations he made. He submitted that the magistrate was correct in his determination that the recipients of the letters sent by the appellant were his “patients”. In consequence, he said that the magistrate’s observations about what was permitted in the “Professional Code and Conduct” in respect of the supply of information by a doctor to the public, rather than his patients, was irrelevant. In communicating with them by way of his letter, advising them of the fact that he was setting up in private practice on a given date at a stipulated address and describing his services, the appellant was doing no more than he was entitled to do with respect to his existing patients. In that respect, there was no breach of the “Professional Code and Conduct”. Section 5.2.4.3 provided that “Doctors in private practice as well as those in public organisations are bound by the same rules”. 33.In his written submissions, Mr Macrae had submitted that the magistrate had misconstrued the ambit of the provisions of section 5.2.4.2 of the “Professional Code and Conduct”, in respect of the issue of “abuse of the patient’s trust”: that misconduct was limited to dissemination of confidential information in respect of the patient to a third party, not communication with the patient himself. However, in the hearing he acknowledged that the provision stipulated that it applied to information about his services supplied by a doctor to his patients. Overall, it was submitted that the magistrate’s reliance on those breaches, as support of his findings that the conduct was sufficiently “serious” to render culpability criminal, was vitiated. Data privacy issues 34.Mr Macrae submitted that, if the “Professional Code and Conduct” permitted a doctor, including the appellant, to supply information about his services, including the fact that he was moving from practice at one place to another, it followed that he was permitted to access the patient’s medical records in order to obtain information as to their names and addresses. There was no breach of Data Principle 3 set out in Schedule 1 of the Personal Data (Privacy) Ordinance, Cap. 486. Ground 4 35.By Ground 4, Mr Macrae contended that there was insufficient evidence to support a determination that the appellant’s conduct was sufficiently serious to render his culpability criminal as being misconduct in a public office. In support of that contention, Mr Macrae pointed to the fact that the relevance of and the approach to determining the issue of the seriousness of the conduct articulated by Sir Anthony Mason in Shum Kwok Sher, had been approved by the Supreme court of Canada in R v Boulanger (2006) 2 SCR 49 (paragraph 52, pages 70-1) and by the Court of Appeal of England and Wales in Attorney-General’s Reference (No. 3 of 2003) [2004] 3 WLR 451 (paragraph 46, page 464 H). 36.In Boulanger McLachlin CJ, in the judgment of the court said of the need for proof that the misconduct was serious (paragraph 62, page 74) :
37.In Attorney-General’s Reference (No. 3 of 2003), the court noted (paragraph 56, page 467 B-C) :
The court went on to note that (paragraph 58, page 467 F-G) :
THE SUBMISSIONS OF THE RESPONDENT 38.The court received two sets of written submissions on behalf of the respondent, the author of the first of which was Mr Derek Lai and the second, described as “Supplementary Skeleton Arguments”, Mr Cheung Wai Sun. The latter appeared at the hearing. Grounds 1 and 2 39.Of his motives for sending out the letters, in his evidence the appellant stated that he wished his patients to know “where I had gone”, so that :
The respondent invited the court to note that, although the magistrate said there was nothing to “impugn the motives of the appellant” in the same sentence he condemned the letter as being “a touting letter”. This court was invited to accept as correct the determination of the magistrate that the letter invited the recipients :
and that it asserted that :
40.The respondent submitted that, although the appellant may have had mixed motives in sending out the letter, his primary motive was that of touting. 41.The respondent drew to the court’s attention the reformulation of the ingredients of the offence of misconduct in a public office addressed in the judgment of Sir Anthony Mason NPJ, with which judgment the other judges agreed, in Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR192. Of the ambit and nature of the misconduct, he said that it (page 211 B, paragraph 46) :
42.The respondent submitted that the magistrate had found that the misconduct was deliberate and wilful and other was no reasonable excuse or justification for that conduct. 43.Whilst the respondent accepted that the magistrate had said of the fact of the good character of the appellant that “the usual reasons for taking a clear record into account are not really engaged in this case”, those remarks were prefaced by reference to the appellant’s good character and by a statement made by the magistrate at an earlier stage in his Statement of Findings :
Ground 3 The data privacy issue 44.Having adopted, with respect, obviously contradictory positions in oral argument in response to questions from the court on the issue, Mr Cheung’s final position was that the appellant was not entitled to access the records of the patients of the Hospital Authority in Team C to obtain information as to their names and addresses in order to send them the letter, which he did send. The purpose for which the patients had supplied information as to their names and addresses was to facilitate their treatment as patients of the Hospital Authority. The patients were entitled to expect that the data would be used for that purpose and no other. Principle 3 of the Data Protection Principles set out in Schedule 1 of the Personal Data (Privacy) Ordinance gave effect to that expectation. The appellant was a “data user”, and as such was required by section 4 of the Ordinance not to do an act contrary to the data protection principles. His conduct was in breach of Data Protection Principal 3. Whilst the Ordinance does not provide for a criminal offence for that breach, section 66 of the Ordinance provides an aggrieved party with a civil remedy. Also, Part IV of the Ordinance provides for a regime in which an aggrieved party can make a complaint, in consequence of which the Privacy Commissioner for Personal Data may conduct an investigation and issue an “Enforcement Order”. 45.The respondent invited this court to accept the magistrate’s determination that the appellant had obtained data as to the names and addresses of patients to whom letters were sent by riding “roughshod over the rights of patients to have their own personal data protected in order to satisfy his own personal ends.” 46.The respondent did not take issue with the magistrate’s finding that the appellant was entitled to treat the recipients of his letters as his “patients”. It followed that the section of the “Professional Code and Conduct” relevant to a consideration of the appellant’s conduct was section 5.2.4, which addressed the dissemination of service information “to patients”. Section 5.2.1, which addresses the “Principles and rules of good communication and information dissemination” provided that any information provided by a doctor to the public or his patient :
Section 5.2 .4, addressing the dissemination of service information to patients, provided that :
Section 5.2.4.2 requires that the service information a doctor may provide to his patient is information that :
47.The respondent submitted that paragraph 2 of the appellant’s letter to his patients clearly disparaged the quality of the services provided by the Hospital Authority in comparison with the services that the appellant proposed to provide. 48.In the result, the respondent submitted that, although the magistrate was in error to criticise the appellant for sending out a letter, rather than making an announcement in the media in, respect of the commencement of his practice, nevertheless he was entitled to find that the appellant was in breach of other provisions of the Code and to have regard to that fact in determining the culpability of the appellant’s conduct. Ground 4 49.Of the issue of the seriousness of the appellant’s misconduct, and the application of the relevant law stipulated in the judgment of the Court of Final Appeal in Shum Kwok Sher, and the relevance of a consideration of the “likely consequences”, to which attention was given in Attorney General’s Reference (No. 3 of 2003), therespondent drew the court’s attention to the judgment of the Court of Appeal in HKSAR v Wong Kwong Chan, Paul [2004] HKLRD 840. In the judgment of that court, delivered by Yeung JA, reference was made to observations as to the relevance of “likely consequences” in the judgment in Attorney-General’s Reference (No 3 of 2003) (paragraph 49, page 850), namely that :
50.The respondent submitted that the magistrate was correct in his determination that the patients of Team C, who had provided personal details to the hospital for their care and treatment, “had every reason to expect that every data user would safeguard their personal data and not use them for the personal purposes of any data user”. Similarly, the magistrate was correct in his finding that : “The appellant was well aware of the status of the personal data in question ...” and his conclusion that the appellant had so conducted himself “for his own personal purposes” and because “it was the most convenient way of advancing his personal ends”. 51.In the result, the respondent submitted that the magistrate was entitled to determine, as he had done, that the appellant’s conduct was “more than sufficiently serious to be regarded as misconduct in public office”. A CONSIDERATION OF THE SUBMISSIONS The nature of these proceedings 52.These appellant proceedings are by way of rehearing. In the judgment of Bokhary PJ in the Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 proceedings of this nature were described thus (page 78, paragraph 19) :
The judge went on to note :
53.There is available to this court all of the exhibits produced into evidence before the magistrate, together with a transcript of the appellant’s testimony. The parties have not found a necessary to invite the court to receive a transcript of the evidence of Ms Sandy Lau Kam Ha (PW1) and Mr David Chan Chung Wai (PW2). Motive and good character 54.Clearly, an important ingredient of the offence of misconduct in public office was proof that the appellant had exercised a power or discretion with a view to conferring a benefit or advantage on himself and had done so with a “dishonest or corrupt motive” (see Shum Kwok Sher, paragraph 83). At issue in this case, were the motives of the appellant in obtaining for his personal use the personal particulars of patients stored on the records of the Hospital Authority of patients, namely sending about 2000 patients a letter informing them that he was setting up in private practice. Clearly, the appellant’s good character was highly relevant to the twin issues of propensity and credibility, in particular in relation to the out-of-court explanations that he had given to the police and his testimony in the trial. In light of his long public service in administering to those afflicted with serious illness, in my judgment, he was to be regarded as possessed of positive good character. 55.With respect to the magistrate, having stated correctly that he had regard to the appellant’s “clear criminal record”, in my judgment he fell into error when he stated that, “the usual reasons for taking a clear record into account are not really engaged in this case.” (paragraph 47). As noted earlier, the magistrate had come to make that statement in the context of his analysis of what of what he understood to be the matters with which issue was taken on behalf of the appellant by Mr Macrae. 56.In his evidence, the appellant had testified that he did not believe that in doing what he had done he had behaved dishonestly. He asserted that he acted in compliance with the “Professional Code and Conduct”. In his submissions to the magistrate, Mr Macrae repeated those assertions, albeit that he conceded that the “Court may not accept that his motives were entirely altruistic”. 57.In these circumstances, given that these proceedings are by way of rehearing it is for this court to give the requisite weight to the fact of the appellant’s positively good character in analysing the evidence. I do so. The data privacy issues 58.The information provided by the respective patients on their admission as patients to the Oncology Department of Queen Elizabeth Hospital, including their names and addresses, was recorded on both hard and electronic records. Those records were the property of the Hospital Authority. The data were subject to the operation of the Personal Data (Privacy) Ordinance, 486). In particular, Principle 3 set out in Schedule 1 provides, in respect of personal data, that it shall not be used, without the prescribed consent of the data subject, for any purpose other than :
59.There is no dispute that the appellant was a “data user”, as defined in section 2 of the Personal Data (Privacy) Ordinance. By section 4 of the Personal Data (Primary) Ordinance, data users are proscribed from doing an act that contravenes the data protection principles. I am sure that the appellant knew that the data of patients contained in the various records from which he obtained the names and addresses of patients were the property of the Hospital Authority, that it had been collected and stored to facilitate the treatment of those patients by the staff of the Hospital Authority and that was the understanding of the patients themselves. The appellant was not permitted to access and use that data for personal purposes. 60.Whilst I am not satisfied to the requisite standard that the appellant knew that he was not permitted to access and use that personal data for the personal purposes to which he deployed that data, I am sure that he was reckless as to that. In particular, I am sure that the appellant was aware that there was a risk that he was not permitted to access and use the data for the personal purposes he proposed to deploy that information and that in the circumstances known to him it was unreasonable to take that risk. Like the magistrate, I find it significant that, although the appellant had been employed by the Hospital Authority for many years at Queen Elizabeth Hospital, he took no steps whatsoever to take advice or counsel as to his proposed course of action. Furthermore, it is significant that the appellant initially restricted his use of the data to those patients with whom he asserted he could describe as enjoying a special relationship. Subsequently, that limitation was abandoned in favour of wholesale dissemination to all the patients of Team C. 61.I endorse the finding of the magistrate that the appellant had accessed and used that data for his own personal ends. Clearly, he did so wilfully and intentionally. Whilst I accept that the appellant had mixed motives for his conduct I am sure that the substantial motive for conducting himself as he did was a desire to enhance the potential for commercial success in his prospective private practice. In the result, I am sure that he exercised his power directly and indirectly to access and then use the personal data of patients in order to confer a benefit upon himself and that in all the circumstances he did so “dishonestly or corruptly”. The seriousness of the misconduct 62.As noted earlier, in Shum Kwok Sher Sir Anthony Mason NPJ noted that the misconduct complained of in a person occupying public office must be “serious” misconduct before the conduct constitutes a criminal offence. As noted earlier, of that, he said (paragraph 86; page 409J-410A) :
Sir Anthony Mason went on to note (paragraph 87; page 410B-C) :
63.In his re-formulation of the elements of the offence of misconduct in public office,articulated in his judgment in Sin Kam Wah, Sir Anthony Mason noted of the necessity that the misconduct be serious, that it must be (page 211A, paragraph 45) :
64.In my judgment, with respect, the articulation of the threshold test in Attorney-General’s Reference (No. 3 of 2003) is apposite, namely :
65.The magistrate was correct to state that he was not dealing with the appellant in respect of infractions of the Professional Code and Conduct (paragraph 30). Nevertheless, certain sections of that document were relevant to a consideration of the factors identified by Sir Anthony Mason as relevant to “seriousness”, namely “the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature of the departure from those responsibilities”. 66.Of fundamental importance to the responsibilities of a doctor to his patient is that stipulated in section 5.2.4 of the Code and Conduct under the title “Dissemination of service information to patients”, namely that :
In the context of this case, the provisions of section 5.2.1(b) of the Code and Conduct are relevant to that stipulation, namely that in providing information to his patient a doctor :
67.In my judgment, the magistrate was correct to identify the tenor of the appellant’s letter to the patients as firstly, an assertion and secondly, an invitation (paragraph 29) :
68.In the first paragraph of the letter (set out in full at paragraph 3) the appellant informed the reader that he was a clinical oncology medical officer of Queen Elizabeth Hospital, in which department he had spent 18 years. Clearly, he was asserting that he spoke with the voice of experience. In the second paragraph, the appellant wrote :
69.The third paragraph of the letter concluded with the appellant advising the reader of the opening of his private practice at a stipulated address from 3 March 2007 and culminated with a request that they attend those premises. 70.Of course, the context in which the seriousness of the appellant’s misconduct is to be viewed is the fact that the patients to whom this letter was addressed were all cancer patients whose names and addresses he had recovered in breach of the data protection principles. Of those patients, the appellant had said in his evidence :
Similarly, the appellant testified of the strong bonding that occurred between doctor and some cancer patients. Likely consequences 71.Clearly, cancer patients in the circumstances described by the appellant himself are particularly vulnerable to pressure being applied to them. Equally clearly, the letter applied such pressure to those patients: as patients suffering from a life-threatening condition they were being informed that in his private practice the appellant offered improved overall effectiveness of treatment. Improved over what? Clearly, in context the answer was, the treatment that they were receiving at the Queen Elizabeth Hospital. But, in what respect was the appellant offering improved overall effectiveness of treatment? Was the improvement to be brought about by the use of the “latest medication”? Or, was it the use of “advanced medical technology”? Or, was it both? Also, how were patients in a position to judge whether not the assertions were true? 72.To pose those questions, is to put into focus the obvious intention of the stipulations provided for in the Code and Conduct by section 5.2.4.2(b), namely the caveat that information supplied by a doctor to his patient must not abuse the patient’s trust or exploit his lack of knowledge. 73.In my judgment it was obvious to the appellant, an educated and mature man, that the recipients of the letters would realise that the information as to their names and addresses had been obtained from their medical records with the Hospital Authority for the purpose of directing a letter that was in large measure commercial touting by the appellant, in breach of their rights of data protection, and that fact alone would cause disquiet and even outrage in patients. Also, in asserting that he was offering services that included more effective treatment it was obvious to the appellant that was likely to cause real anxiety and even distress amongst patients as to the quality of the treatment they had received thus far and would continue to receive for those unable to avail themselves of private medical treatment. In so conducting himself in respect of his patients, the appellant was both abusing their trust and exploiting their lack of knowledge. In a doctor, that is not “trivial” misconduct, rather it is serious misconduct. CONCLUSION 74.In the result, for the reasons set out above I endorse the magistrate’s finding that the appellant’s conduct was of sufficient seriousness to constitute the criminal offence of misconduct in a public office. I am sure that all of the ingredients of the offence were proved. Accordingly, notwithstanding the attractive manner in which Mr Macrae presented his arguments the appeal against conviction is dismissed. Similarly, the appellant having abandoned his appeal against sentence at the hearing itself, that appeal is dismissed as well.
Mr Cheung Wai Sun, SADPP of the Department of Justice, for the Respondent Mr Andrew McCrae, SC, instructed by Richards Butler, for the Appellant (I) Leave to appeal granted on the "point of law" limb of s.32(2) of Court's statute by Court of Final Appeal to the Appellant. Please refer to FAMC22/2010 dated 8 July 2010 (II) Appeal by the appellant to Court of Final Appeal dismissed. Please refer to FACC5/2010 dated 6 December 2010 |
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