HKSAR v. Wong Lin Kay

HCMA633/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 633 OF 2010

(ON APPEAL FROM KTCC 136 OF 2010)

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BETWEEN

Before : Hon McMahon J in Court

Dates of Hearing : 29 December 2010, 5 and 14 January 2011

Date of Judgment : 28 January 2011

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J U D G M E N T

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1.The appellant was convicted after trial of six offences of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”), being Charges 1 to 6 and of an offence of misconduct in public office, contrary to common law, being Charge 7.

2.In respect of the driving whilst qualified offences he was sentenced 6 months’ imprisonment on each and disqualified from driving for 2 years.

3.So far as the offence of misconduct in public office was concerned, he was sentenced to 15 months’ imprisonment.  All sentences were ordered to be served concurrently, resulting in a totality of 15 months’ imprisonment.

4.The appellant now appeals his convictions and sentences of imprisonment.

CONVICTION

5.The prosecution case was that the appellant was employed as a driver by the Department of Agriculture and Fisheries (“the Department”).  The appellant was based at the Pak Tam Chung Country Park Management Centre at Shatin (“the Centre”).  His duties during the relevant period were to drive other employees of the Department (usually workmen) to various places of work in the Pat Tam Chung Country Park.  He had no other duties than as a driver and usually drove a small truck, AM3515.  He had, when he arrived daily at work, a responsibility to fill in a time card and, in respect of his driving of AM3515 to various destinations, a logbook.

6.On 9 March 2009 the appellant was convicted of an offence of driving a motor vehicle whilst he had a concentration of alcohol in his blood above the prescribed limit (“the drink driving conviction”).  He was disqualified from driving for six months.  The offence was unconnected with his employment and did not involve any government vehicle. 

7.The appellant, according to the prosecution, concealed the conviction and his disqualification from his superiors within the Department, and continued to attend work and drive AM3515 as directed.

8.Shortly before the end of the disqualification period, a staff member of the Department, from documents provided to her apparently by the Department of Justice in respect of a wholly separate prosecution the appellant had faced during his disqualification period for an offence of “going equipped for stealing”, and which he had disclosed to the Department, came to realise from the documents provided to her that the appellant had a drink driving conviction and that he had been disqualified from driving for several months.  That resulted in the present case being reported to the police.

9.The defence case was simply to put the prosecution to strict proof.  The appellant did not give or call any evidence.

10.The charges as to “driving whilst disqualified” pursuant to section 44(1)(b) of the Ordinance are, on their face, uncontroversial if the prosecution allegations were proven.  However the charge of “misconduct in public office” struck me as somewhat unusual on the prosecution evidence and I asked for supplementary submissions from both counsel as to whether the facts of the case, if proven, established the offence.

11.The particularisation of the charge was as follows :

“WONG Lin-Kay, you are charged that between 11th day of March, 2009 and 14th day of August, 2009, in Hong Kong being a public officer namely motor driver of the Agriculture, Fisheries and Conservation Department of the Hong Kong Special Administrative Region Government, in the course of or in relation to your public office wilfully and intentionally culpably misconducted yourself by :

(a) failing to inform the Agriculture, Fisheries and Conservation Department that you was [sic] disqualified from driving on 9th March 2009 for a period of 6 months,

(b) acted in your capacity of motor driver in performing your driving duties in driving on roads motor vehicles of the Hong Kong Special Administrative Region Government.”

12.The initial grounds of appeal advanced by Mr H.Y. Wong on behalf of the appellant may be summarised as follows :

(a) Charges 1 to 6 :

(1) In determining whether the appellant drove during the period he was disqualified from doing so, the magistrate was wrong to assume that the appellant had two options only; that of reporting his conviction or concealing it and continuing to drive.

(2) There was insufficient evidence to establish :

(i) that the appellant failed to report his drink driving conviction; or

(ii) that he drove AM3515 as part of his employment while disqualified from driving.

(b) Charge 7 :

(3) The magistrate in convicting the appellant of the offence of “misconduct in public office” overlooked the inherent improbabilities of the appellant concealing his disqualification from driving from his superiors in the Department.

13.Additionally, as appeals such as this are in the nature of re‑hearings, I asked both Mr Wong and Mr Andrew Cheng for the respondent to address me as to whether the evidence supported the conviction for the offence of “misconduct in public office”.  That question effectively formed a separate challenge to the conviction on the 7^th charge, and concerned the issue as to whether the appellant had been proven to be a “public official”.

GROUND 1  — The two options

14.Mr Wong argues somewhat opaquely that by allowing himself only the two options complained of, the magistrate failed to consider other possibilities such as the appellant perhaps performing other duties during the period he was disqualified from driving.

15.The magistrate, in the course of his findings, said that :

“44. I am taking a common sense approach to the issue of the case. The first question I need to ask is whether he turned up for work as usual during the relevant period?

45. The starting point is the undisputed facts: the defendant was disqualified on 9^th March 2009 for a period of 6 months for drink driving, he was then a Government driver by profession. After the court proceedings on 9^th March 2009, he must have known that he could not drive any vehicle from then on for 6 months.

46. There were only two options left for him to decide what to do: either notifying his department of the disqualification order and to face the consequences of not being allowed to carry on his job as a driver or keeping the department in the dark so that he can continue what he has been doing as before.”

16.As a matter of practical reality the magistrate was entitled to adopt that approach.  It is difficult to see how the appellant could have had any other option than the two stated.  If he had sought other work in the Department he would have had to give the reason for his doing so.  The magistrate was doing no more than exercising commonsense. But in any event, in saying this he was not determining any issue.  He went on to look at the evidence before him which proved the appellant had not disclosed his drink driving conviction to the Department and had continued driving, before convicting the appellant.

17.There is nothing in this ground.

GROUND 2

The failure to disclose

18.This ground is connected to Mr Wong’s complaint regarding the previous ground.  He says that in any event there was insufficient evidence to establish that the appellant had not disclosed his drink driving conviction to the Department.

19.There is no merit to this ground.  It is plain from the evidence of PW1 (the appellant’s supervisor) that he, PW1, was unaware of the appellant’s drink driving conviction.  More specifically, the evidence of PW3, a clerk in the personnel section of the Department, was that there was nothing known of the appellant’s disqualification from driving until she, PW3, received the documents from the Department of Justice in respect of the appellant’s being prosecuted for “going equipped for stealing”.  In the admitted facts of that case was reference to the appellant’s disqualification.  PW3 apparently wrote back to the Department of Justice enquiring about the matter.

20.On 1 June 2009, she received confirmation from the Department of Justice that the reference in the case papers concerning the appellant having been disqualified from driving on 9 March 2009 were correct.  It was then that PW3 reported the matter to her supervisor and, somewhat slowly, steps were taken to report the matter to the police and relieve the appellant of his driving duties.

21.On the basis of this evidence and in the absence of any evidence undermining the testimony of PW3 in this regard, the magistrate was right to find (and did not “assume” as Mr Wong put it) that the appellant had not reported his disqualification from driving to his Department.

The evidence of the appellant driving on the charged days

22.Mr Wong complains also that there was insufficient evidence proving the appellant drove AM3515 on the days charged.

23.In this regard there were before the magistrate two different sets of documents.  The first was the work attendance record of the appellant (Ex. P4) which recorded mechanically the time and date of his attendance at work and his departure.  The prosecution called PW1 and PW2, both supervising officers of the Department, who gave evidence as to how the time recording system operated. 

24.The second set of documents comprised the driving record or logbook of AM3515 (Exs P5 to P7).  This record provided details of the journeys made by the vehicle and was completed and signed after each journey by the driver, whose name was recorded as the appellant’s, and countersigned by his supervisor.  PW2 was that supervisor, and in his evidence said the purpose of his signature was to confirm the appellant did what he had been instructed to do.  PW1 in his evidence also described how the driving record was compiled and said he occasionally checked the record. Ex. P4 and Exs P5 to P7 recorded the appellant having attended work and driven AM3515 on the charged dates.

25.Another aspect of the prosecution evidence was from PW2 and other workmen at the Centre who gave evidence of being driven by the appellant during the period of the appellant’s licence disqualification, though they were unable to say with precision on what dates they were driven. 

26.There was, on the face of it, overwhelming evidence that the appellant had continued his driving duties at the Centre during the period of his disqualification and that he had done so on the charged dates.

27.His counsel at trial had put the prosecution to what he referred to as “strict proof of these matters”.  His closing address to the magistrate complained that the evidence of PW1 and PW2 was deficient and unable to give the work attendance records any reliability, as PW1 and PW2 did not themselves record them and had not witnessed the appellant doing so. 

28.With respect, that submission had no merit. The attendance records were mechanically made upon the insertion of the appellant’s own time card into a machine.  Once generated in that way they spoke for themselves.  As the magistrate said there was nothing to suggest anyone other than the appellant had used his time card on his behalf.

29.The complaint was similar concerning the driving record of AM3515.  It is true that there were certain alterations to the record, in the sense of crossings out and tippexing of some of the details (a matter taken into account by the magistrate), but even with that sort of alteration it seems to me that with the evidence in the prosecution case as a whole substantially unchallenged, it was beyond reasonable doubt that the appellant had continued his usual driving duties during the period of his licence disqualification and that the work attendance record and the log book entries together left no doubt the appellant had driven on the charged dates.  That is what the magistrate found and that is a finding with which I agree.  I might add both sets of records were adduced in evidence without objection, yet were challenged in the final address of counsel on the basis they were “hearsay”.  Neither was inadmissible hearsay.  On the basis of the evidence of PW1 and PW2, the circumstances of the case, and the contents of the documents themselves I am satisfied they were in any event admissible as documentary records pursuant to section 22 of the Evidence Ordinance, though I must say that if objection was to be taken to them as being hearsay, that objection should have been made at the time they were tendered during the prosecution case. 

30.There is no merit in this ground.

GROUND 3 — MISCONDUCT IN PUBLIC OFFICE

The inherent improbabilities

31.This ground concerns the conviction of the appellant of the common law offence of misconduct in public office. 

32.Mr Wong’s original complaint was that there were inherent improbabilities in the finding that the appellant had concealed his disqualification from driving from his superiors, and that the magistrate had overlooked those improbabilities.  They were said to be; that it was improbable that the appellant would have lost his job if he had told the Department he had been disqualified from driving, that it was pointless to hide the fact of his disqualification as it would inevitably be discovered, and that as it had been an admitted fact in the “going equipped for stealing” case (in respect of which the appellant had been acquitted on appeal) and as the Department had obtained those materials, the appellant had effectively disclosed his disqualification.  With respect, the first matter is speculative there being no evidence to that effect, and in any event all these matters were sufficiently addressed by the magistrate.  Regarding the two latter matters the magistrate said :

“47. On the evidence before the court, there was nothing to suggest that the defendant had ever informed his department of the disqualification order imposed on him by the court.

48. In the course of trial, one piece of evidence adduced by way of cross-examination was that subsequent to his drink driving conviction, the defendant was convicted of going equipped for stealing on 23^rd March 2009, he informed the department of his own accord about such matter a few days afterwards (the conviction was eventually overturned on appeal)- that indicates that the defendant knew what he should do after being convicted by a court of law of a criminal offence.

49. Defence counsel submitted that the defendant made no bones about it when he was convicted of the other criminal offence on 23^rd March 2009 in Shatin Court, for during [the hearing] it was made known to the court the fact that the defendant had a drink driving record and he was a Government driver. I do not think this would and could amount to the equivalent of notifying his department.

50. Defence counsel also criticized the official (PW3 - Madam Leung) of AFCD personnel department for failing to pick up this piece of information from the bundle of documents sent to them by Department of Justice concerning the defendant’s Shatin case on 1^st June 2009. Counsel made the point that if she had done her job properly, the defendant would not have been prosecuted for the present case. To be honest, I do not quite follow the logic of counsel’s argument, it seems to me that he has put the cart before the horse- the defendant clearly has the personal knowledge that he himself could not and should not drive any vehicle, and he should, without being asked, let his employer know about this fact as soon as possible rather than leaving it to the luck of the draw to see if the department would eventually find out or not.” 

33.I agree with those conclusions.

34.In any event given that the appellant’s complaint concerning the magistrate’s finding that he drove whilst disqualified has failed, the second particular of the 7^th charged offence remains intact.

WAS THE APPELLANT A PUBLIC OFFICIAL?

35.I turn now to the question I raised with counsel as to whether or not the appellant had been proven to be a “public official”.

36.The offence of misconduct in public office has had a long history in the common law, and has in recent years enjoyed something of a renaissance in charges brought before Hong Kong courts.

37.The elements of the offence had, it is fair to say, never achieved perfect certainty either in this jurisdiction or others.  However in 2002 and 2005, the Court of Final Appeal addressed the offence and in two judgments, Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 and Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 refined the elements of the offence to :

“(1) a public official;

(2) in the course of or in relation to his public office;

(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5) where such misconduct is serious, not trivial, having regard to 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.”

See Sin Kam Wah at para. 45 per Sir Anthony Mason.

38.The concern which I have is whether or not the appellant has been proven, although employed by the Hong Kong Government, to be a “public official” in terms of the common laws understanding of that term.  In my view it is the common laws understanding of that concept which is determinative, because this offence and its elements have arisen against the background of the historic conception of what constitutes a public official. The case law, unsurprisingly, given the period of time the offence has existed, uses on occasion different terminologies, such as “public officer” or “the holder of public office” but the concept remains the same. 

39.There is therefore one argument advanced by Mr Cheng for the respondent which I wish to dispose of.  He argues that by section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 “public officer” is defined very broadly as “any person holding an office of emolument under the Government, whether such office be permanent or temporary” and “public office” is defined by the same section as being “any office or employment” under the Government. 

40.It may well be that the present appellant would fall within the parameters of those combined definitions and that section 3 of the Ordinance could be determinative of this question if it applied to the common law concept of a public official.  But it does not.  By section 2 of the Ordinance the provisions of the Ordinance (and of the defined terms in the Ordinance) are restricted to the statutory law of Hong Kong.  In other words the definitions of “public officer” and “public office” apply only to those terms as they appear in other Ordinances and statutory instruments.

41.It may be that in certain circumstances a statutory definition would, though restricted to a statutory context, nevertheless give some guidance to the same or similar terms as used in the common law.  But regardless of the suggestion to this effect in R v Bowden [1995] 4 All ER 505, in my view, given the long common law history of the present offence, modern day statutory definitions of “public officer” and “public office”, especially when limited in application to other statutes as in section 3 of the Interpretation and General Clauses Ordinance, are of no particular help in deciding what those or similar terms mean in the context of the present common law offence.

42.What then is meant by a “public official” for the purposes of the offence?

43.The case law goes back at least as far as Crouthers case (1599) Cro. Eliz 654 where a constable was indicted for failing to instigate a hue and cry having being informed that a burglary had been committed.

44.Some part of the line of authority which followed is set out in Attorney General’s Reference (No. 3 of 2003) [2004] 3 WLR 451 and it is helpful to refer to those cases, and others, in terms of the understanding of the application of the offence by the jurisprudence of earlier days : Crouthers case involved a constable who, given the public duties and responsibilities of a constable, was indisputably a public officer; Anonymous (1704) 6 Mod. 96, 87 E.R. 853 (K.B.), concerned a defendant “made an officer by Act of Parliament”; R v Wyat (1705) 1 Salk 380, 91 E.R. 331 concerned two constables, and it is noteworthy that in this judgment it was held that “at common law constables were subordinate officers to the conservators of the peace so are they now the proper officers of the justices” thus confirming the “officer” status still possessed by police officers : see R v Dytham (1979) 69 Cr. App. R 387.  R v Yeung and Pitts (1758) 1 Burr. 557, 97 E.R. 447 concerned two magistrates who improperly refused to grant a liquor licence; R v Williams; R v Davis (1762) 3 Burr 1317, 97 E.R. 851, concerned two justices of the peace; R v Kennett (1782) 5 Cor & P 282 172 E.R. 976, involved a defendant who was both mayor and a magistrate of London; R v Bembridge (1783) 3 Dougl. 327, 99 ER 679, concerned an accountant in the paymaster‑generals office of the British army; R v Holland (1794) 5 T.R. 607, 101 E.R. 340, involved a defendant who was a member of the council of Madras and a counsellor of the President of that council; R v Borron (1820) 3 B & Ald 432, involved a magistrate; and R v Pinney (1832) 5 Cor & P 254, 172 E.R. 962, also involved a defendant who was a mayor and magistrate. 

45.It can be seen from the early history of the offence that defendants charged as public officers, or as a person in a public office, were invariably individuals who had some form of authority or power arising from a public trust or duty placed upon them, whereby the exercise of that authority or power directly or indirectly affected the public interest. That remained the position up to the present day. 

46.That is not surprising.  The fundamental policy behind the common law offence from earliest times was the protection of the public.

47.In R v Whitaker (1914) 3 KB 1283, a British army officer had corruptly accepted sums of money from a firm of caterers to induce him to allow them to supply his regiments’ canteen.  The Court of Appeal in deciding whether the officer was a public officer provided this definition :

“A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.”

48.As Lord Mansfield CJ had said in Bembridge at p. 332 :

“ Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomever and in whatever way the officer is appointed …”

49.That statement of the law was approved relatively recently in R v Bowden [1995] 4 All ER 505 at p. 509, as was the definition of “public officer” provided by the court in Whitaker. Bembridge was cited with approval in R v Llewellyn-Jones (1968) 1 Q.B. 429 at 436, a case involving a court Registrar.  The continuing theme of all these cases is that the “public officer” must be a person who holds a position of trust, or of some responsibility, which requires him to, and vests him with the authority or power to, perform duties which in their performance can affect the public interest.  It seems to me that the word “official” is not used lightly in terms of the first element of the offence expressed by Sir Anthony Mason NPJ in both Shum Kwok Sher and Sin Kam Wah.  Given that the purpose of the existence of the offence is the protection of the public, one would expect there to be no offence in circumstances where an individual, even if employed by the Government, had no power to affect the public interest.  An “official” it seems to me is necessarily restricted to someone who has the authority power or duty I have referred to.  It may be that the status of the persons position is not particularly great, such as were the circumstances of the accountant in the paymasters office of the British army who contrived to conceal omissions in the accounting records for which he was responsible for the benefit of himself and others : see Bembridge (supra) and R v Beale (Crown Roll 384, Roll 22 from the Record office, and noted as such in Whitaker) a case involving a clerk.  But there must be inherent in the position held some ability, by the performance of duties attached to that position, to affect the public interest.

50.It is noteworthy that in Russell on Crime 12^th edn [1964], at p. 361 the offence was defined as occurring :

“ Where a public officer is guilty of misbehaviour in office by neglecting a duty imposed upon him either at common law or by statue, he commits a misdemeanour and is liable to indictment unless another remedy is substituted by statute. The liability exists whether he is a common law or a statutory officer; and a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable to indictment for not faithfully discharging the office.” [Emphasis added]

51.Insofar as the present case is concerned there was, in my view, insufficient evidence to establish that the appellant was, in the work he was employed to do, able to affect the public interest.  There was no suggestion on the evidence that he, in his capacity, was able to make any administrative decision or any other sort of decision which had any bearing on the public interest, or to exercise any authority to direct any other person, or to utilise his position, to influence the manner in which the Department’s work was performed, as one would expect if he were to act as a public official.  I do not think therefore that the appellant was a public official.  He was a truck driver.

52.That finding is sufficient to allow the appeal so far as the appellant’s conviction on the 7^th charge of “misconduct in public office” is concerned.  That conviction is set aside.  His appeals against his convictions in respect of Charges 1 to 6 are dismissed.

SENTENCE

53.My quashing of the conviction on Charge 7 leaves only the appeals against sentence in respect of Charges 1 to 6.

54.In respect of each the appellant was sentenced to 6 months’ imprisonment.  All were ordered to run concurrently.  That results in a totality of 6 months’ imprisonment.  Mr Wong does not suggest that that totality was excessive.  His only complaint concerns the 6 months’ imprisonment imposed in respect of each.  That is a somewhat academic complaint.  Given the fact that a sentence in respect of an offence of driving whilst disqualified is predicated by the fact that the offender has a prior conviction or convictions, he is therefore never a first offender.  The offender is also by definition in breach of a court order : see HKSAR v Liu Yim Hung, HCMA267/1998.  In most cases it also means the offender is without third party insurance and is therefore driving at some risk to the public.  I accept, however, in this case, the Government being a self insurer, that was not a consequence of the offence.

55.Nevertheless, the appellant’s offences formed a series and would likely have continued had it not been for the chance discovery by his Department of his driving disqualification.

56.Because of that aggravating aspect of the offences (and the magistrate was not wrong to look at the offences in the context of the appellant reporting to work and driving on a daily basis) there was sufficient reason to take a starting point of 6 months’ imprisonment for each offence.  There were no mitigating factors.

57.The magistrate, likely to reflect the fact that the offences forming a series had been taken into account as an aggravating factor, had ordered them to be served concurrently.  That is an approach with which I agree.  The appeal against sentence is dismissed.

Mr Andrew Cheng, PP of the Department of Justice, for the Respondent

Mr H.Y. Wong, instructed by Messrs David Hui & Co., assigned by Director of Legal Aid, for the Appellant

(I) Respondent's application for leave to appeal to Court of Final Appeal granted by Court of Final Appeal. Please refer to FAMC11/2011 dated 5 May 2011 (II) Please refer to FACC3/2011 for the relevant appeal(s) to the Court of Final Appeal.