HKSAR v. Chu King Kwok
Read the full judgment text of HCMA 855/2009 on BabelCite. This High Court CFI judgment was delivered on 19 April 2010.
1. This is an appeal by way of case stated, pursuant to section 105 of the Magistrates Ordinance, Cap. 227.
Cited by 2 cases · Cites 5 cases
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HCMA 855/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 855 OF 2009 (ON APPEAL FROM ESCC 3331/2007) ____________ BETWEEN
____________ Before: Hon Beeson J in Court Date of Hearing: 25 February 2010 Date of Judgment: 19 April 2010 _________________ J U D G M E N T _________________ 1.This is an appeal by way of case stated, pursuant to section 105 of the Magistrates Ordinance, Cap. 227. BACKGROUND 2.The Respondent was charged with one count of Misconduct in Public Office, contrary to common law and punishable under section 101 I of the Criminal Procedure Ordinance, Cap. 221 and was acquitted after trial before Madam Chainrai, Permanent Magistrate. 3.The Appellant applied for a review of this decision, but after a hearing the Magistrate dismissed the application and ordered costs of the review to the Respondent. The Appellant appealed against the acquittal by way of case stated and the Magistrate signed a case setting out the facts and the grounds of her determination. 4.The questions of law for which the Appellant seeks answers from this court are:
5.The relevant particulars of the offence alleged that the Respondent being a public officer i.e. a Taxation Officer at the Inland Revenue Department, between 1 April 2004 and 16 November 2006, in the course of, or in relation to his public office, wilfully and intentionally culpably misconducted himself by recording particulars of taxpayers for his future personal use. FACTS 6.There was no dispute about the facts. The Respondent, a Taxation Officer of 33 years standing was attached to the Document Processing Centre of the Inland Revenue Department, which inter alia sorted mail from individual or corporate taxpayers who wished to appeal against their tax assessment, or to hold over tax payment. Between 1 April 2004 and 16 November 2006, while processing taxpayers’ mail the Respondent copied the personal data of 18,300 taxpayers without the authority of the Commissioner of Inland Revenue. 7.The data included the taxpayers’ names; Hong Kong identity card numbers; Business Registration numbers; addresses and telephone numbers. The data was recorded on 77 pieces of paper found at his home and 255 pieces of paper seized from his office. Those papers contained the handwritten record of the data extracted and kept by the Respondent. 8.The Respondent was interviewed three times by the ICAC and gave three explanations for obtaining the data. He claimed first that he copied the data to make himself look busy so that his superior would not give him more work. The Respondent felt aggrieved as he believed that he had been given more work than his colleagues. 9.His second explanation was that he wanted to keep a record of what work he had done in case his superior questioned him as to why he could not finish the work that he had been assigned. 10.Finally, the Respondent said he thought that since his retirement was approaching, (he was due to retire in 2008) the data might be of use to him in future. He might for instance become a salesman selling daily commodities, or become an insurance or property agent. However although that was his intention, he was talking about his retirement plan in two years’ time, so at the date he was copying the data he was making preparation only and he had never used any of the copied data. 11.A colleague of the Respondent, Mr Fan Kwok-wah (PW1), who sat at an adjacent desk, had noted the Respondent recording taxpayers’ data. He did not report that activity to their joint superior officer, Mr Kam Win-man, because he believed that Mr Kam knew what the Respondent was doing. Mr Fan and the Respondent were of the same grade, so Mr Fan did not think it appropriate that he himself should question the Respondent. 12.It was not disputed that the Respondent was obliged under the Inland Revenue Ordinance, Cap. 112 to preserve the secrecy of taxpayers’ data. Section 4 of the Ordinance leaves no doubt that IRD officers were permitted access to taxpayers’ records only for the purpose of carrying out their official duties. They were not permitted otherwise to possess taxpayers’ data, or to remove it from the office. Inland Revenue officers were reminded regularly of their responsibilities through Inland Revenue departmental circulars and internal booklets on official secrecy. PSYCHIATRIC CONDITION EXCLUDED 13.At trial, as part of his defence, the Respondent called a psychiatrist who gave evidence that the Respondent was a compulsive hoarder, which behaviour was a variant of obsessive-compulsive personality disorder. His disorder was described as being of “moderate” intensity. A psychiatrist for the prosecution agreed that the Respondent suffered from compulsive personality disorder in that he was a compulsive hoarder, but opined that his copying of data did not fit in with the definition of compulsion as the Respondent had a purpose in his recording. 14.The Magistrate considered their evidence and that of the Respondent on this aspect, and found that the copying of the data did not accord with the definition of compulsion, which, in this context, was agreed by the psychiatrists as an act or behaviour which a person recognized as purposeless and unnecessary, but which he could not resist repeating. As the Respondent’s copying of the data was done for a purpose, or purposes, the Magistrate found it was unlikely to be related to his mental disorder. This point was not pursued at the hearing of the case stated and I do not propose to comment on it further. 15.The Magistrate accepted in evidence the admissions made by the Respondent about his reasons for recording the data. She found that he had made no decision about possible future use of the data. Although she accepted that his thought that he might use it in future could be described as an improper motive, she did not consider that it brought the misconduct into the “serious” category referred to in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381. Nor was she satisfied that the prosecution had established beyond reasonable doubt that the Respondent would use the data for his own personal future use. 16.She concluded:
17.Regina v. Dytham involved misconduct of an officer of justice; a police constable who, allegedly, witnessed a serious assault but had wilfully omitted to preserve the peace, protect the victim, or arrest the assailants. At trial the defendant had objected to the indictment on the basis it disclosed no offence known to the law. The court disagreed and the defendant was convicted. 18.On appeal it was conceded that a police constable was a public officer and that there existed at common law an offence of misconduct in a public office. The argument on appeal covered the constitutional and jurisprudential history of the offence. Lord Widgery CJ commented in giving judgment:
APPLICATION FOR REVIEW 19.At the review hearing Mr Edmond Lee, who appeared for the applicant, argued that the Magistrate had misdirected herself as to the proper test to be applied in deciding whether the Respondent’s act was culpable misconduct. The applicant put the relevant legal authorities before the Magistrate. 20.The applicant also highlighted the aggravating features of the misconduct for the Magistrate to consider. Stress was laid on the importance of official secrecy to the Inland Revenue Department and Hong Kong society generally and the protection to which taxpayers are entitled under the Inland Revenue Ordinance, Cap. 112 and the Personal Data (Privacy) Ordinance, Cap. 486. As a Taxation Officer the Respondent had a duty to keep taxpayers’ data confidential. Copying and retaining personal data as he had done was not connected with his official duties. The scale of the copying, the length of time over which it occurred and the casual haphazard exposure of the data was serious. 21.The Magistrate considered the submissions of the applicant but declined to alter her previous decision; as although she accepted there was prima facie evidence to establish the offence, she was not persuaded that the conduct amounted to serious misconduct. THE LAW 22.The Court of Final Appeal confirmed the elements of the offence of misconduct in public office in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 as being :
23.Two qualifications were attached – the misconduct must be both wilful and intentional and secondly the misconduct complained of must be serious. 24.Whether the misconduct was serious was to be decided having regard to:
25.In Attorney General’s Reference (No. 3 of 2003) [2004] 3 WLR 451 the English Court of Appeal also had occasion to consider the elements of the offence of Misconduct in Public office and in doing so approved Shum Kwok Sher as follows:
26.In 2005 the Court of Final Appeal in Sin Kam Wah v. HKSAR (2005) 8 HKCFAR 192 reformulated the elements of the offence after detailed consideration of AG’s Reference No. 3. The offence is committed where:
27.The Court did not refer, specifically, to the need, when assessing the seriousness of the misconduct, to consider as one of the factors the consequences which may flow from the act or omission. However it did not disapprove of, or disagree with, what the Court of Appeal had said. Although this decision of the English Court of Appeal does not bind the Hong Kong courts, as an expression of principle it has great weight and should be borne in mind when assessing the seriousness of the misconduct. 28.The mechanics of gauging the seriousness of the misconduct were examined again in 2009 in HKSAR v. Wong Kwong Shun Paul CACC 390/2007. The Court of Appeal there referred to the criteria in Sin Kam Wah and stated:
29.There the court can be seen to have considered as one of the relevant factors the consequences which were likely to flow from the misconduct both generally, i.e. reasonable criticism, suspicion and the bringing of the office into disrepute and specifically in terms of the misconduct being examined which in Wong Kwong Shun was a public officer giving an unfair advantage to friends or relatives and/or, intentionally benefitting himself, friends or relatives. APPELLANT’S ARGUMENT 30.Mr Edmond Lee, who appeared for the Appellant, submitted that the only issue in dispute was whether the Respondent wilfully and intentionally culpably misconducted himself. He argued that the Magistrate in deciding whether the conduct was serious enough to warrant conviction had erred by failing to take into account at all, a most important factor, the likely consequences of the Respondent’s misconduct. His second point was that the Magistrate, wrongly, had placed too much emphasis on the purpose for which the Respondent intended to use the data. 31.He pointed out that the Respondent’s own evidence showed, and the Magistrate so found, that the Respondent had copied the data for a number of purposes, the most culpable being with a view to personal use in the future, which amounted to serious misconduct. Mr Lee contended further that even if the Respondent had copied the data only for the purpose of killing time at the office and/or to make it look as if he was working productively, that could still amount to serious misconduct given the scale of the copying, the lengthy period over which it was carried out and the degree of exposure. 32.It was irrelevant whether the Respondent had decided how he would use the data, or that he had not used it; if he had done so his behaviour would rise to an even higher level of culpability. What he had done by copying data, removing it from safe keeping and exposing it, in itself, amounted to serious misconduct. Accordingly, the Appellant submitted that the three questions posed for consideration should be answered in the affirmative. RESPONDENT’S ARGUMENT 33.Mr Egan for the Respondent advanced two arguments on appeal. His primary submission was that the 3 questions were findings of fact masquerading as questions of law. His secondary position was that the Appellant had misconceived the tests and the law that the Magistrate should follow. In particular he argued that the Magistrate was not obliged to follow AG’s Reference No. 3, but had to follow the decision in Sin Kam Wah, which did not specifically require the Magistrate to consider the consequences flowing from the misconduct when assessing its seriousness. 34.He referred to the particulars of the charge which alleged that the Respondent in relation to his public office, ‘wilfully and intentionally culpably misconducted himself’ by recording particulars of tax payers for his future personal use. He submitted that the prosecution had failed to prove that the recording was done for his future personal use. 35.Further Mr Egan contended that the Magistrate’s findings showed that she was fully aware of the elements of the offence and knew that the prosecution had to establish that the misconduct was serious, but having applied her mind to the law and discharged her jury function, she found after taking into account the personal circumstances of the Respondent, that his conduct was not sufficiently serious to justify a conviction. MISCONDUCT MUST BE SERIOUS 36.The misconduct will not be criminal or culpable unless it is serious. In Shum Kwok Sher Sir Anthony Mason NPJ pointed out that such a qualification had not been made clearly in the earlier cases underlying the concluding observations of Lord Widgery CJ in Dytham. That qualification was included to limit the scope of the offence by helping to separate it from conduct which was only disciplinary in nature. 37.The court commented that there was no clear dividing line between the two and that at times criminal offences and disciplinary offences could overlap [see Sir Anthony Mason NPJ @ para. 87 p. 410]. 38.In Bribery and Corruption Law in Hong Kong [Ian McWalters SC 2nd Ed. P.704] the author in a chapter devoted to a consideration of the offence of Misconduct in Public Office comments:
39.The quotation, is that of Ma CJHC who, when delivering the Court of Appeal judgment in Sin Kam Wah, stated:
40.Even the presence of an improper motive may not automatically elevate conduct to the level of “serious”, especially if the public officer has not obtained any financial benefits for himself. 41.Mr Egan submitted that the Magistrate had only to consider the elements of the offence as detailed in Sin Kam Wah and that consideration of the consequences in adjudging the seriousness of the misconduct was unnecessary. I do not agree. Although AG’s Reference No. 3 is not binding on the courts in Hong Kong it contains an apposite statement of a principle which must always have been relevant when considering this offence, whether set out explicitly or not.
42.It is not that the court in AG’s Reference No. 3 was adding a new element to the definition of the offence; more accurately it can be viewed as a gloss on the elements comprising the offence as set out in Shum Kwok Sher. Realistically, the quality and nature of any alleged misconduct in public office could never be, or never have been, assessed accurately unless the possible consequences were taken into account, whether that was stated explicitly by the court or not. 43.The elements of the offence as stated in Shum Kwok Sher and reformulated in Sin Kam Wah, advert to the need to consider the seriousness of the misconduct. That was to be decided by reference to the responsibility of the office and the office-holder; the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. What those matters delineate, in effect, is an assessment of the consequences. 44.Mr Egan pointed out that although AG’s Reference No. 3 was considered by the Court of Final Appeal in Shum Kwok Sher the court did not approve the exhortation to consider the potential consequences when assessing the seriousness of the misconduct. In my judgment it was unnecessary for the Court of Final Appeal to comment on, or confirm, what would have been too obvious to have been enlarged upon by the court. It seems self-evident that anyone assessing the seriousness of the misconduct could not do so effectively unless attention was paid to the ensuing consequences. CONSIDERATION OF RESPONDENT’S SUBMISSION 45.As this is an appeal by way of case stated in terms of s.105 of the Magistrates Ordinance, Cap. 227 it is limited to questions of law. Mr Egan’s primary submission was that the 3 questions put before the court, were questions of fact masquerading as questions of law. After consideration I rejected that argument because the questions were all directed at the legal principles which the Magistrate had to bear in mind, or were directed at the parameters of the offence, or the legal tests or criteria by which the Magistrate was obliged to determine the issues of fact. 46.Mr Egan argued further that the AG’s Reference No. 3 court reporter had misunderstood or ignored the ratio of the case and included an obiter comment about consideration of the consequences as part of the ratio. This ‘embellishment’, as he termed it, was not part of the test in Shum Kwok Sher, nor in the reformulation of the test in Sin Kam Wah. He argued that no heed should be taken of AG’s Reference No. 3 in this regard and that it was not incumbent on the Magistrate to do so. 47.Although the reference to consideration of the consequences is not an element of the offence as described in Sin Kam Wah, it was one of the factors that a court can and should take into account when deciding on the issue of serious misconduct. 48.The Appellant submitted that the Magistrate should have but failed to take into account at all the likely consequences which might result from the Respondent’s misconduct. It was not quite accurate to say that the Magistrate had not taken into account at all the likely consequences that flowed from the Respondent’s misconduct. At paragraph 16 of her Statement of Findings she commented that the possible misuse of the data should they fall into the wrong hands was ‘immense’, but did not go on to consider what that might be in relation to the gravity of the misconduct. 49.In every case where misconduct is established there may be potential harmful consequences flowing from it, although it may not be possible to prophesy which particular consequence or consequences will result. It cannot be expected that in each case all the possible consequences can be spelt out in detail or catalogued. Such consequences must be taken into account to a greater or lesser extent. 50.However, in my judgment the likely consequences of the Respondent’s misconduct were not accorded their proper significance by the Magistrate. In this case an experienced, long-serving public officer, who was fully aware of the legal and departmental confidentiality requirements which governed his work, recorded for his own purposes important personal details of a very large number of taxpayers both individual and corporate. Some of that recorded data was removed from his office and kept at his home. The data obtained was exposed openly both in the office and at his home. The recording and exposure of the data took place over a period of 2½ years. At least some of the data could have been exposed for up to 2½ years. The privacy and confidentiality which a taxpayer is accorded by law to ensure that the Inland Revenue is able to pursue its revenue collecting duties with the fullest co-operation of the taxpayer, were ignored. 51.Any member of the public who was apprised of the Respondent’s activities as described above and, certainly, any taxpayer, could not fail to regard such misconduct as a serious abuse of the public’s trust in the officer. One of the least serious consequences of the abuse of public trust could be that taxpayers might be less forthcoming with their personal information on future occasions. An even more serious possible consequence might be that a taxpayer evaded paying tax altogether, rather than risk exposure of his personal details. An objective observer would regard the Respondent as having brought his office into disrepute; as having caused suspicion and as having misconducted himself in a way which would lead to reasonable criticism. In the words of the court in Dytham, the misconduct was “calculated to injure the public interest so as to call for condemnation and punishment”. 52.It was irrelevant that no use was made of the material that was left lying around the Respondent’s home or his office. The data which was recorded by the Respondent was at risk of falling into the wrong hands, given it was openly displayed and accessible. The most serious potential misuse of the data would be to facilitate identity theft; blackmail and commercial espionage. 53.Less serious misuse could be sale of the data to compilers of commercial mailing lists, or, as the Respondent suggested, for use by himself if he worked as a salesman or a real estate agent. That no use was made of the data (or, more accurately, that no use of it was shown to be made) does not redound to the credit of the Respondent, nor could it be a valid feature in mitigation. 54.The particulars of the charge stated that the Respondent had recorded the data for his personal future use. The Magistrate found that the prosecution had not proved that particular and Mr Egan argued that this was a correct summation of the evidence. 55.However, the prosecution did not have to show that the Respondent had done or would do anything in particular with the data, the misconduct lay in the recording and/or any exposing of it. The Respondent had already made admissions to the police about his various purposes for recording and keeping the data; that included his statement of his intention to possibly make use of it when he retired. The Magistrate accepted that evidence. 56.The purpose for which the Respondent intended to use the data was not an element of the offence, although it might have relevance if the court was considering whether other elements of the offence had been established or, if there was an eventual conviction, for the purposes of sentencing. The issue of motive was the main reason on which the Magistrate based her decision to acquit the Respondent, declaring herself unsatisfied that the conduct was sufficiently serious. It is difficult to see how she could reach that conclusion without examining the possible consequences of the Respondent’s misconduct. 57.The serious nature of the Respondent’s misconduct can be gauged by analogy with cases where information was retrieved improperly from the police national computer in the United Kingdom. 58.In R v. Ghazi Ahmed Kassim [2006] 1 CR App. R.(S) 5 12 a police officer sold information retrieved from the computer, to a diplomat.
59.In Attorney General’s Reference No. 1 of 2007 (James Andrew Hardy) the Court of Appeal considered sentence on a police officer who had retrieved information from the computer and given it to a known criminal, albeit without payment. 60.The court treated it as a gross breach of trust which required an immediate sentence of imprisonment, commenting:
The quoted comments are relevant to the instant case in that the integrity of information on the Inland Revenue database can be regarded as of fundamental importance to the well-being of society. 61.On 12 March 2010, after the instant case had been adjourned for judgment, a decision was given in HKSAR v Chan Tak Ming, Paddy, HCMA 851/2009, an appeal against conviction and sentence in another case of misconduct in public office. I include details of the case for the sake of completeness, in particular because the court considered the likely consequences of the misconduct as one of the factors by which to assess seriousness. 62.The facts were broadly similar in that a specialist oncologist employed by the Hospital Authority wrote a letter and sent it to about 2000 current and erstwhile cancer patients at the hospital where he worked, preparatory to his setting up as a specialist in private practice. He obtained the names and addresses from the computerised records kept by the hospital; initially he took the details only of his own patients, but later took details of patients treated by his team of doctors. 63.Counsel for the appellant argued that the misconduct was not serious and the Magistrate was wrong in finding it so. Lunn J found inter alia that the content of the letter breached a prohibition under the operative Code of Conduct for doctors, namely, that information supplied by a doctor to a patient must not abuse a patient’s trust or exploit his lack of knowledge. He found the content was commercial touting which would cause patients ‘disquiet and even outrage’ and that promises in the letter that the services he would offer of ‘more effective treatment would cause real anxiety and even distress…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.’ 64.The respondent in that case had referred the court to AG’s Reference No. 3 and the relevance of a consideration of the “likely consequences”. Lunn J noted the comments of Yeung JA in Wong Kwong Shun that:
65.At paragraphs 71 to 74 of his judgment, Lunn J considered the ‘likely consequences’ of what counsel for the appellant had conceded was intentional misconduct as one of the factors in determining the seriousness of the misconduct. He was satisfied it was and dismissed the appeals. CONCLUSION 66.Having considered the details of the case stated by the Magistrate, the submissions of counsel for the Appellant and the Respondent, as well as the relevant case law I answer all 3 questions in the affirmative.
Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice, for the Appellant Mr Kevin Egan, instructed by Messrs S H Chan & Co, for the Respondent |
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