HKSAR v. Wong Lin Kay

FAMC No. 11 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 633 OF 2010)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.This is an application by the prosecution for leave to appeal to the Court of Final Appeal.  The respondent – a driver in the Agriculture, Fisheries and Conservation Department – continued to drive in that capacity even after having been disqualified from driving following a conviction for driving with a concentration of alcohol in his blood above the prescribed limit.  He was charged with, and convicted by a magistrate of, six charges of driving while disqualified and one charge of misconduct in public office.  On intermediate appeal against those seven convictions, McMahon J quashed the conviction for misconduct in public office, doing so on the basis that the respondent was not in a sufficiently responsible position to come within the term “public official” in the definition of that offence.

2.Asked by the prosecution to do so, the judge certified the involvement of a point of law of great and general importance, being the point raised by the question “What is the definition of ‘public official’ for the purposes of the common law offence of misconduct in public office?”  Mr John Reading SC who appears for the respondent does not resist the leave application although he will certainly resist the appeal itself. Helpfully he observed that the point to be decided in the appeal may involve not only the meaning of “public official” but also that of “public office”.

3.In our view, it is reasonably arguable that the meaning to be given to the term “public official” would cover someone in the respondent’s position and that the meaning to be given to the term “public office” would cover his position.  In any event, it may be not so much a matter of saying that a person has to be of at least such and such seniority before he can commit the offence of misconduct of public office as a matter of taking seniority into account when deciding if the misconduct is sufficiently serious.  The result of this application is that we grant the prosecution leave to appeal to the Court of Final Appeal under the point of law limb of s.32(2) of the Court’s statute.

Mr William Tam (of the Department of Justice) for the applicant

Mr John Reading SC (instructed by Messrs David Hui & Co. and assigned by the Legal Aid Department) for the respondent