HKSAR v. Sze Lok Hang
Read the full judgment text of CACC 203/2013 on BabelCite. This Court of Appeal judgment was delivered on 22 October 2013.
1. The applicant was tried in the District Court before District Judge J Lam between 17 April to 3 May 2013 on a Charge Sheet containing six charges. Charges 1 to 5 involve allegations of common assault and indecent assault against five different complainants and the sixth charge is a charge of theft. On 16 May 2013 the applicant was acquitted of all the assault charges but convicted of the sixth charge of theft. On the same day he was sentenced by the judge to a period of 9 months’ imprisonm
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CACC 203/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 203 OF 2013 (ON APPEAL FROM DCCC NO. 102 OF 2013) ____________
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_______________________________ REASONS FOR JUDGMENT _______________________________ Hon McWalters J (giving the reasons for judgment of the Court): Introduction 1.The applicant was tried in the District Court before District Judge J Lam between 17 April to 3 May 2013 on a Charge Sheet containing six charges. Charges 1 to 5 involve allegations of common assault and indecent assault against five different complainants and the sixth charge is a charge of theft. On 16 May 2013 the applicant was acquitted of all the assault charges but convicted of the sixth charge of theft. On the same day he was sentenced by the judge to a period of 9 months’ imprisonment. He applies for leave to appeal both his conviction and his sentence. 2.At the hearing of the applications we dismissed both the application for leave to appeal against conviction and the application for leave to appeal against sentence. We said we would give our reasons for so doing at a later date. These are our reasons. The Charges 3.The applicant is a registered nurse who was working at the Accident and Emergency Department (“A&E Department”) of the Prince of Wales Hospital at the time of the offences. The complainants in respect of the first five charges were all patients attending at the A&E Department of this hospital and the assaults that are the subject of the charges were all acts of physical contact by the applicant in the course of conducting examinations of these patients. It was essentially the prosecution case that no physical examination was needed to be performed by the applicant of any of the patients and that he abused his position as a nurse in the A&E Department in order to commit the offences. 4.At the time of his arrest, 11 February 2012, the police searched the applicant’s locker at the hospital and found within it five items of hospital property, namely four barcode labels and one medical report. The medical report and one of the barcode labels concern the complainant of Charge 1 who was known at trial as Madam A. Other barcode labels belonged to patients to whom we shall refer as X, Y and Z. It is these five items that are the subject of the sixth charge of theft. This charge pleaded that the offence occurred between 12 June 2011 and 11 February 2012. It is clear from the evidence that the items in respect of each patient must have been acquired by the applicant on different occasions. The Trial 5.Before the prosecution called any evidence defence counsel applied for Charges 1 and 2 to be severed from the Charge Sheet. His complaint was not that there was impermissible joinder in respect of these two charges and the other charges but rather that the applicant would suffer prejudice at his trial should Charges 1 and 2 be tried together with the remaining charges. It was claimed that he would be embarrassed or prejudiced in his defence to the remaining charges because the evidence in respect of Charges 1 and 2 was so tenuous. The tenuous nature of the first two charges flowed, it was said, from the fact that the alleged complainants of these charges did not actually make any complaint against the applicant and it was alleged that their evidence had been extracted from them by the police. Given the flimsy nature of the evidence supporting Charges 1 and 2, it was claimed that by trying them together with Charges 3 to 5 the judge might be unduly influenced into thinking the evidence on the first two charges was stronger than it actually was. 6.In response to this application the prosecution said that it wished to make it clear that it did not intend to rely on similar fact evidence as part of its case. This was notwithstanding that the prosecution case was clearly one where it was being alleged that there was a pattern of similar behaviour by the applicant in which he abused his position as an A&E nurse to conduct unnecessary medical examinations upon only female patients and in circumstances, namely in the absence of a female nurse who would act as his chaperone, that was contrary to hospital Guidelines. 7.The application was refused with the judge noting the stance taken by the prosecution and noting further that as a professional judge sitting alone he could ensure that no prejudice would flow to the applicant. 8.In respect of the five assault charges the prosecution called three complainants but in relation to Charges 3 and 4 offered no evidence when it became apparent that the evidence of the complainant for these charges would not be available. 9.Madam A testified that she attended the A&E Department of Prince of Wales Hospital on 9 November 2011. She was complaining of stomach pain. She was seen by a doctor and a female nurse gave her an injection. After this treatment she was made to lie on a trolley whilst she was being kept at the A&E Department for observation. She remained at the A&E Department from the time of her registration at 9.07 a.m. until her discharge at 13.17 hours that same day. At some stage in that period she was taken to a room within the A&E Department and the applicant conducted a physical examination of her. He then gave her a document to collect medicine but before leaving he asked her to give him her phone number in case there would be any problem in the following days. She did so. 10.The day following her discharge Madam A received a message from the applicant who asked her if she was feeling well. The two began to engage in social chat using the WhatsApp messaging application and in the course of this text conversation Madam A informed the applicant that she thought she had lost her sick leave certificate. The applicant said he would try and get a replacement certificate for her. Subsequently, the two met for dinner and the applicant gave her the replacement certificate and since then the two had not met again or engaged in social chat. 11.The complainant of the second charge was a 19 years old female. She was diagnosed as having an acute kidney infection and whilst she was in the A&E Department the applicant examined her. She was told that after her discharge she would need to receive three injections. The applicant offered to give her the three injections himself rather than she having to attend the health clinic and she agreed. In order to contact the complainant the applicant used the WhatsApp messaging application. One injection took place in a restaurant and the other two in her home. 12.The complainant of the fifth charge is a 29 years old female who was referred to at trial as Madam C. She alleged that the applicant indecently assaulted her by digital penetration of her vagina. Before leaving hospital, and this was not contested, the applicant asked Madam C for her phone number and address and Madam C wrote her phone number and residential address on a piece of paper and gave it to the applicant. The applicant contacted Madam C after she had left the hospital and sent her a message using the WhatsApp messaging application. Madam C subsequently made a complaint to the police and it was her complaint which initiated the investigation of the applicant. 13.The barcode label of Madam X must have been obtained at some stage after the 25 July 2011 when this person went to the A&E Department of the Prince of Wales Hospital for a consultation. She was registered at 3.14 hours and stayed for about three hours. She said she does not know why a label relating to her was in the applicant’s locker. Nor does she know why her phone number was written above that barcode label. She said it was not her handwriting and she had not given that number to anyone in the hospital other than the registration staff. 14.The barcode label relating to Madam Z would have been created when she registered herself as a patient at the A&E Department at 14.27 hours on 6 February 2012. She was, in fact, a part-time nurse in the department and, therefore, a colleague of the applicant. Despite feeling unwell and registering herself as a patient, she continued to work until 10 p.m. as the doctor she wanted to consult was not available. After going off duty at 10 p.m. she saw the doctor and he allowed her to be discharged as a patient. She confirmed that she had not given any barcode label to the applicant and did not know why her barcode label was in his locker. However, she did say that she encountered the applicant at some stage that day and told him she was going to see the doctor. 15.The only other barcode label found in the applicant’s locker was one in the name of Madam Y. However, this person was not available to give evidence at the applicant’s trial. 16.The other relevant evidence called by the prosecution in proof of this offence was the evidence of Mr Wong Kam-yip. He is the Operation Manager of the A&E Department of the hospital and is responsible for supervising all the nursing staff in that section. He informed the Court that the applicant had started working in the A&E Department from August 2010 after graduating from university. He testified that a booklet consisting of the Code of Professional Conduct and the Code of Ethics for Nurses in Hong Kong would have been given to the applicant when he registered with the Nurses Council. Section 2 of the Code of Professional Conduct provided guidelines on how nurses should treat patients’ information. Furthermore, Mr Wong said that the applicant had taken a training course in August 2010 concerning the protection of personal data privacy and security and that in the course of so doing data access principles would have been mentioned. 17.Mr Wong also testified as to the procedures to be followed by a male nurse when examining a female patient in a mixed gender ward. He said that there was a set of guidelines called General Guideline for Staff working in Mixed Gender Ward which had been issued in July 2011. He said that even if the applicant had not been given a copy of this he should have been briefed on its contents by the Ward Manager. These guidelines require a male staff to carry out any nursing examination on a female patient in a single room area and to arrange for a female staff to be present as a chaperone. Furthermore, any nurse doing such an examination should make a note of it in the patient’s record. He did agree, however, that nurses were stretched to the limit of their capacity and some might by-pass the Guidelines and take short-cuts for convenience. 18.Mr Wong also testified as to the registration procedures of patients and how their personal particulars would be stored and recorded by the hospital. He said that when a patient registered at the Registration Office of the A&E Department, the registration staff would input the patient’s particulars including name, ID card number, address and telephone number into the computer. The staff would then print out eight barcode labels on a running strip. A blank label would separate one patient’s barcode labels from another’s. He said that there were two different types of barcode labels. For a normal strip of eight labels, the first one contained many personal details of the patient and this type of label he referred to as a Type A label. The other seven labels contained less personal details of the patient and he referred to these as Type B labels. The Type A label would be affixed to the patient’s A&E Attendance Record and the remaining seven Type B labels would be attached or stapled to the A&E Attendance Record to be used as and when necessary. For example, Type B labels would be used for any subsequent medical procedures, should the need arise. 19.Ultimately, any unused Type B labels would be put in a tray for disposal together with the patient’s A&E Attendance Record. The Attendance Record would be scanned into a computer and the original Attendance Record would be kept at the Records Office. Unused Type B labels would be put into a unsecured confidentiality box and ultimately taken away and destroyed. The destruction of any unused Type B labels and any copies of the A&E Attendance Record was done in order to protect patients’ privacy data and these practices would have been known to all nurses in the A&E Department. 20.All nurses had a common code number that enabled them to access the computer to print out any Type A or Type B label or any A&E Attendance Record. The barcode labels for Madames X and Y were both Type A labels and were on the same strip separated by a blank label. The barcode labels for Madam A and for Madam Z were two different Type B labels on separate strips. 21.The applicant had been employed by the hospital for some 18 months and during that time had never been the subject of any complaint. The defendant elected not to give evidence or to call any witnesses. It was an agreed fact that he had a clear record. Reasons for Verdict 22.The judge commenced his Reasons for Verdict by providing reasons for his rejection of the severance argument. He then considered each charge separately, discussed the evidence in relation to each, stated his findings on that evidence and announced his verdict in relation to it. 23.In respect of Madam A the judge found her to be a believable, reliable and truthful witness. He noted that in the course of her evidence she did not feel that the applicant in any way indecently assaulted her or invaded her privacy. In the messages that she and the applicant exchanged with each other she also agreed that the applicant at no stage sent her any message which carried any suggestion of a sexual hint or advance. He noted further that the actual examination carried out by the applicant of Madam A did not exceed that which would have been a proper examination of her for the medical condition of which she was complaining. He said that there was suspicion in respect of the applicant’s conduct in examining a female patient without a chaperone but he could not be sure that this by-passing of the hospital Guidelines necessarily indicated that the applicant was intending to indecently assault Madam A. He found that no criminal intent could be inferred beyond reasonable doubt in the circumstances and that, therefore, the prosecution had not proved the charge in relation to Madam A beyond reasonable doubt. He thereupon acquitted the applicant of Charge 1. 24.The complainant of the second charge, likewise, had no complaint against the applicant and, as with Madam A, his examination of her was not inconsistent with the medical condition from which she was suffering. There was no improper conduct by the applicant on the occasions that he administered her injections and the complainant had no feeling that the applicant was indecently assaulting her or invading her privacy. The judge ruled that the applicant had no case to answer for Charge 2 and thereupon acquitted him of this charge. 25.The complainant of the fifth charge was the only complainant in respect of whom there were credibility problems. This person presented with a history of depression and suicidal thoughts. Although she did not appear to her examining doctor to be confused or incoherent at the time of his examination of her, she had previously been suffering from delusions and auditory hallucinations. She performed poorly under cross-examination, giving the impression of being evasive and defensive on key issues. The judge found that she was not a witness who was credible and reliable and concluded that he could not be satisfied of the truthfulness of her evidence unless there was some corroboration of it, which there was not. He therefore found the prosecution had not proved Charge 5 beyond reasonable doubt. 26.In respect of the sixth charge the judge found that from the manner in which the items the subject of the charge were placed in the applicant’s locker, he was sure that the applicant was keeping these items deliberately. He concluded that these items all belonged to the Hospital Authority and that the staff of the Hospital Authority have no right to retain these types of documents for their own personal use. In respect of the A&E Attendance Record of Madam A, the judge concluded that although it could not be proved how or when it came to be generated, he could be sure that at some time the applicant must have acquired it and then decided to keep it in his locker. He adverted to the possibility that the applicant might have acquired it for the purpose of assisting Madam A obtain a replacement sick leave certificate. But, he said that even if that was the case that would not have entitled the applicant to keep the document in his locker as his own property. 27.In respect of Exhibit P5, the Type B label relating to Madam A, and Exhibit P10, the Type B label relating to Madam Z, he made similar findings, namely that the applicant at some stage acquired them and decided to keep them for his own purposes. 28.The running strip containing two Type A labels relating to Madam X and Madam Y was Exhibit P9. Being Type A labels they would normally be generated once only and would be affixed onto the patients’ A&E Attendance Record. Consequently, there should not be any unused Type A labels. Furthermore, the judge noted, Exhibit P9 was not one but two Type A labels on the same strip, only separated by a blank label. The witness, Mr Wong, who was in charge of the A&E Department could think of no reason why two Type A labels of two different patients who attended the A&E Department on two different days should be generated in this way. The judge concluded that he could be sure that Exhibit P9 was not generated legitimately in the course of the normal performance of duties of any hospital staff. Although he could not be sure as to when and by whom this one strip of two different Type A labels was generated, he could be sure that at some stage the applicant acquired and decided to keep it in his locker and that when he made this decision he knew he was not entitled to retain it as his own property. 29.The judge had no difficulty concluding on the evidence that the applicant must have known how nurses should deal with a patient’s A&E Attendance Record and any unused barcode labels relating to patients. He was also sure that the applicant knew that he was not entitled to keep such records in his locker as his own property. He also concluded that right-minded persons would regard such an act as dishonest and he was sure the applicant knew that. He was sure that the applicant was dishonest when he kept them in his locker. By these conclusions, he was able to satisfy himself as to dishonesty as per the Ghosh test. 30.The judge noted that even though the labels themselves did not show any means of contact, he was sure that the applicant, by use of a scanning device available in the hospital, would be able to read the patients’ detailed information from these labels. He also noted that all the patients involved were ladies in their twenties and he concluded:
31.Whether the charge was, in fact, duplicitous was not a point taken at trial or on appeal and so we have not had the benefit of any argument on it. That being so it is not appropriate for us to express a view save to say that had we been persuaded that it was duplicitous we would have been minded to apply the proviso. The Grounds of Appeal 32.There are three grounds of appeal. The first ground of appeal complains that the judge erred in convicting the appellant of the charge of theft. Under this ground of appeal the applicant argues that the judge erred in finding that the applicant’s conduct concerning the young female patients was:
The error, it is said, was compounded when the judge erroneously found that the applicant would try to reach these patients if he could and his similar finding that he wanted to make friends with those patients if he could. 33.The second ground of appeal asserts that the judge erred in law in convicting the applicant of the charge of theft. Under this ground of appeal the applicant complains of the judge’s finding that it was dishonest of him to keep the old unused labels in his locker and that the applicant must have known this. 34.The final ground of appeal is that the conviction is unsafe and unsatisfactory and under this ground the applicant complains that the judge was wrong to refuse at the beginning of the trial the defence’s application for severance of the first and second charges. It is further complained that notwithstanding that it was incumbent upon the judge to reach his verdict on each charge by considering only the evidence relevant to that charge, there were occasions when the judge revealed in his Reasons for Verdict that he was being influenced by evidence given on other charges in respect of which the judge acquitted the applicant. Here, the applicant refers to the judge’s finding of a “scheme” and his finding that the applicant would try to reach these patients if he could. Under this ground it is also said that the judge confused non-compliance or breach of Hospital rules concerning the proper procedures for the use and handling of barcode labels with the criminal offence of theft. Discussion 35.Common to the first and third grounds of appeal is an attack upon the judge’s finding that the applicant’s conduct was part of a scheme and that the purpose of the applicant’s scheme was to enable him to contact the patients whose barcode labels he stole, even if only to make friends with them. Mr Polson, on behalf of the applicant, argues that there was no evidentiary foundation for this finding (first ground of appeal) and that such evidence as there was for such a finding came from the evidence of the assault complainants. This evidence, so the argument ran, could only be used for the purpose of determining the guilt of the applicant in respect of the charge for which it was adduced and it was impermissible to use this evidence in determining the guilt of the applicant on the theft charge (third ground of appeal). It was precisely to avoid such an impermissible use that the severance application was made. 36.But, Mr Polson’s argument ignores the reality that in trials involving multiple offences, there is nothing unusual in evidence on one charge also being relevant to another charge. The question is not in respect of what charge is the evidence being adduced but rather whether the evidence is relevant and admissible for the charge for which it is used. 37.Here, the judge was faced with uncontested evidence that the applicant had, on three occasions, obtained from young women with whom he had professional dealings their contact details and, in fact, had used those details to communicate with them after they had been treated at the A&E Department. The acts of the applicant on the assault charges revealed a pattern of behaviour that could be used quite properly to infer a reason for him acquiring and retaining the five items of property that were the subject of the theft charge. The inference that the judge drew from these primary facts was that the applicant acquired and retained the property so that he would be able to contact the ladies to whom the property related if he so wished. 38.From this inference can be drawn the further inference that the applicant:
Thus, although the evidence was adduced for the purpose of proving the assault charges it was also relevant to the theft charge. 39.The conclusion as to the applicant’s motive was, of course, only an inference but because the applicant did not testify there was no other evidence to explain his conduct. The consequence of this was that this inference became one that could more readily be drawn and because there was no evidential basis for any other inference to be drawn, such as the speculative explanations advanced by Mr Polson at trial, it became the only reasonable inference that could be drawn. 40.There is no merit in the first ground of appeal. 41.Mr Polson’s second ground of appeal that the applicant’s appropriation of this hospital property was not dishonest suffers, as we have already indicated, from the absence of any evidence from the applicant for his reasons for acquiring and retaining this property. It is no answer to raise a number of innocent possibilities that would negative dishonesty when there was no evidence adduced to support these possibilities. 42.Nor does it help to characterise the items as abandoned rubbish of the hospital. By their nature they were very special items and the applicant well knew that. They contained confidential patient information or the means of accessing, by a scanner, such information. The sensitivity of the items was such that the hospital had in place a dedicated method of dealing with and destroying them. Furthermore, and it is stating the obvious, no employee would be entitled to access a patient’s confidential data without a legitimate reason for doing so and for a nurse that would normally be because the nurse was involved in treating the patient. But, in respect at least of the patient who was a colleague of the applicant, Mr Polson had to concede that the evidence was that the applicant was not involved in her treatment. 43.Nor can it sensibly be suggested that the items were inadvertently retained after being acquired by the applicant in the normal course of his duties. Apart from Madam A there was no evidence that the applicant was professionally involved with Madames X and Y and as we have mentioned it is clear that in respect of Madam C he actually had no involvement. There is also the fact that two of the labels were Type A labels which should never be unused labels as they are always affixed to the A&E Record. Furthermore, Madam X was a patient on 25 July 2011 and Madam Y on 12 June 2011 and so if the labels in the applicant’s possession were unused labels from the occasion of their treatments, then the applicant would have inadvertently retained possession of them for a period of around 8 months and more. Lastly, as mentioned, Madam Y was a patient more than 5 weeks before Madam X. Yet, inexplicably, their two labels had been printed out sequentially with Madam X’s label preceding Madam Y’s. Mr Wong could not think of any legitimate reason for the two labels being generated in this way and the only inference is that they were not generated for hospital business. 44.It is not just that the exculpatory explanations that were advanced were not supported by any evidence; it goes further than this for such evidence as there was actually contradicted any possible exculpatory explanation. On the evidence before him the judge was perfectly entitled to conclude that the applicant’s appropriation was dishonest. 45.The third ground of appeal complains that the judge allowed himself to be influenced by the evidence on the assault charges as a consequence of not acceding to the severance application. The improper influence is the use by the judge of the evidence that the applicant persuaded each of the three complainants of the assault charges to provide him with their contact information and then used it to communicate with them in the days following their treatment at the A&E Department. The only way that a severance application could have avoided this possibility is if the theft charge had been severed; not the first two charges which were, in fact, the subject of the severance application at trial. Be that as it may, for the reasons we have already explained, we see nothing wrong in the use the judge made of the evidence of which complaint is made. 46.Under this ground it is also argued that the judge has confused non-compliance with hospital procedures with the offence of theft. We do not agree. The judge found, as he was entitled to do, that the applicant, in respect of each item, deliberately went about acquiring these items and retaining them indefinitely. He would have known they were hospital property. These were clearly appropriations of properties with an intention permanently to deprive the Hospital Authority of them. Given the nature of the properties and the inference drawn by the judge as to the reason for their acquisition and retention the element of dishonesty was proven. All the elements of the offence of theft were made out. Arguments that it was only a technical, non-serious form of the offence may be relevant to sentence but they are not a basis for finding the offence not proven. There is no merit in the third ground of appeal. 47.For these reasons we dismissed the application for leave to appeal against conviction. The Reasons for Sentence 48.The judge relied upon his recitation of the evidence and his findings of fact that were contained in his Reasons for Verdict. He noted that the applicant was, at the time of sentence, aged 26 having graduated from Hong Kong Polytechnic University in the summer of 2010. Immediately after graduation he commenced employment with the Hospital Authority as a registered nurse in the A&E Department of the Prince of Wales Hospital. 49.He described the applicant’s conduct in relation to Charge 6 as follows:
50.He noted that the applicant’s counsel had tried to characterize the offence as not a serious one as the documents taken by the applicant had no value and the applicant had not taken them in order to use them for any monetary gain. His counsel accepted, without conceding it was the case, that the most the applicant might make use of them might be to gain information on the patients so as to make friends with them for the purpose of enlarging his own social circle. His counsel claimed that the applicant is a very social person. Counsel referred to the applicant’s clear record and submitted that the Court, if it considered imprisonment an appropriate penalty, should suspend that sentence because the applicant is a first offender. However, his primary submission was that the offence was not serious enough to justify a term of immediate imprisonment. 51.Counsel informed the Court that the applicant had resigned from his position as a nurse at the Prince of Wales Hospital soon after his arrest in February 2012 and since August 2012 had been working in an institution that cared only for aged males. His counsel submitted that there was no risk that the applicant would repeat his misconduct. He also said that the applicant would be subject to a disciplinary hearing held by the Nursing Authority. 52.The judge rejected defence counsel’s submission that the offence was not a serious one. He said that it involved a serious breach of trust and was committed by a professional nurse involving a number of different acts over a period of time. He repeated his finding that the applicant had “engaged himself over a period of time in a schematic collection of documents relating to young female patients” although he considered that the reason for his actions might well be that he simply wanted to make friends with those patients if he could. 53.In determining whether imprisonment was appropriate the judge said that in cases “where a professional person breached his status and trust of his employer and he stole from his employer, imprisonment was inevitable and it should be an immediate term”. He concluded that a suspended sentence would be wrong in principle even though the applicant is a first offender. However, he took into account the clear record of the applicant in deciding the appropriate starting point for the term of imprisonment. He considered other kinds of sentence such as fines, probation orders or even community service orders but said they were inappropriate for an offence of this level of seriousness. He then adopted 9 months’ imprisonment as his starting point and as the applicant had pleaded not guilty and shown no remorse, he could see no reason why any discount from that starting point should be awarded to the applicant. Nine months’ imprisonment, therefore, became his final sentence for Charge 6. Grounds of Appeal Against Sentence 54.There is only one ground of appeal against sentence and that is that the period of 9 months immediate imprisonment was, in the circumstances, manifestly excessive and wrong in principle. In support of this ground of appeal, the applicant contends that the judge was wrong to attribute to the applicant’s actions an unjustified sinister motive for acquiring and retaining the barcodes in his locker. Further, it is said that there was no basis for the finding that the case was one of a breach of trust. It is also said that the barcode labels acquired by the applicant would have been considered as waste by the hospital to be destroyed and that there was no loss to the hospital as a result of the applicant keeping unused barcode labels in his locker. It is also said that the judge was wrong to exclude from consideration, in the circumstances of this offence and this offender, sentencing options other than immediate imprisonment which, it was said, for a first offender should only be used as a last resort. Discussion 55.Mr Polson refers to the fact that the applicant is a young man of clear record. He argues that courts would, in respect of such an offender, normally impose a non-custodial sentence, especially where the offence involved is not a serious one. He submits that this offence can properly be so characterised. Thus, he argues, the circumstances of the offence and the circumstances of the offender both point to a non-custodial sentence or at least a suspended sentence being appropriate for the applicant. 56.In support of his contention that this offence is not a serious one Mr Polson submits that it does not involve a breach of trust; there was no financial loss to the hospital; that even if the applicant did collect the information in order to contact the women so that he could socialize with them, that, in itself, is not a sinister purpose; and that apart from Madam A he did not contact the women and his contact with Madam A was consensual and for the purpose of assisting her. 57.True it is that the courts would normally try and keep out of gaol a first offender convicted of a minor offence or an offence that does not call for a deterrent sentence. This is not such an offence. In order to understand why we do not agree with Mr Polson’s portrayal of the seriousness of this offence, it is necessary first to appreciate the role of the computer in modern day society and the extent to which it has become a key part of the way we, as a society, operate. The computer provides benefits to us through its ability to store vast amounts of data and its ability quickly to retrieve and process that data so that it can be used by those having a need of it. It has become an integral part of our daily life. As Chan CJHC (as he then was) said in HKSAR v Tsun Shui Lun [1993] 3 HKLRD 215 at 228I: “Daily activities are now so dependent on the computer that it is difficult to imagine what would happen without it.” 58.Both in the public and private sectors a large volume of personal information on private individuals is collected and stored in computers in order to enable governments and private organizations to carry out their functions. Inevitably, the existence of these computer data banks carries with it the risk that access to them will be abused and the information within them exploited for improper purposes. The realization of this risk has led to the emergence within the community of a growing awareness of the value of privacy and the need to protect it. The Hong Kong Government has responded to this concern with the enactment of the Personal Data (Privacy) Ordinance, Cap 486. In fact, this applicant received training on the provisions of this Ordinance in the course of his employment at the Prince of Wales Hospital. 59.There is, consequently, a great public interest in preserving the community’s confidence in the security of computer systems and the integrity of those granted access to them. Of course, there is a range of personal information that may be collected on an individual but none will be more personal and more private than information collected by a doctor on a patient. The more personal and private the information the greater the need for confidentiality in respect of it. The obligation of confidentiality is so important in the patient/doctor relationship that it is made a cardinal ethical requirement of the medical profession. The need for this protection and the comfort obtained from knowing it is there is no doubt particularly keenly felt by young women who in the course of a consultation may be obliged to reveal matters about themselves they would not want known to anyone else. The vulnerability they would otherwise feel, and feel acutely, is reduced by their belief that no-one else, other than those involved in treating them, will ever become aware of what they have revealed. 60.We have felt it necessary to set out in some detail the public interest that the Court, by its sentencing policy, strives to protect. The importance of this public interest requires that a sentence containing a strong element of general deterrence is imposed for an offence of this nature. 61.As will be apparent from these comments we do not agree that no breach of trust is involved in the commission of this offence. In fact, not only is there a breach of trust, there is a number of different forms that the breach may take. There is, firstly, a breach of the trust between the patient and the hospital. As we have explained this ethical, professional obligation to keep confidential all information provided by a patient is key to the effectiveness of the patient/healthcare worker relationship. There is no doubt that the applicant has breached the trust of these patients whose barcode labels he stole. 62.The second form of trust that is broken is the trust between the employer and the applicant when the employer entrusts to its healthcare staff the opportunity to access and obtain medical information on patients. This is crucial to the employer being able to effectively carry out its duties of providing healthcare services to the community. The employer entrusts this information on patients to its employees and it does so on the clear understanding that the employee will use it only for medical purposes. Clearly, this applicant also was in breach of his employer’s trust. 63.Allied with the second form of breach of trust is the third and final form, namely the breach of trust by the employee in the access granted to him by the employer to the employer’s computer data base. This access enables the employee to see information on any patient whose barcode label he obtains. In respect of this applicant this final form of breach of trust was not proven although much suspicion surrounds the means by which he acquired Exhibit P9, the printout of the two Type A barcode labels. 64.Here, the applicant was guilty of the first two forms of breach of trust and, for the reasons we have explained, we regard them as serious breaches of trust. Once they become known the damage they do extends well beyond the immediate complainants for they undermine the public confidence in the security of the hospital’s computer data base and the integrity of the patient/healthcare worker relationship. 65.The culpability in the present case lies in the applicant’s improper acquisition of this confidential information and not with the use he made of it. It appears he made no use of it and the use that he may have intended to make of it may have only been to explore a social relationship with the complainants. But, even if this were so it does not mean that the applicant’s conduct is benign rather than sinister. Young women in need of healthcare services were seeking and expecting medical attention, not the unwanted advances of persons working at the hospital. That the applicant should think that the hospital’s computer data base could become for him a potential source of information for social networking is something we find both disturbing and alarming. That he ultimately made no improper use of the information does not, however, lessen the seriousness of his dishonest appropriation of the barcode labels; rather it constitutes no more than the absence of an aggravating factor. Theft of the labels is, for the reasons we have explained, serious misconduct in its own right. It does not require a subsequent misuse of the stolen labels to elevate it to the level of a serious offence. 66.It also follows from what we have said that the applicant’s conduct cannot be seen as simply a momentary lapse in professional ethics, a mere simple failure to comply with hospital Guidelines and established practices and procedures or a technical theft of a minor nature. It involves a significant level of dishonesty and serious breaches of trust. The widespread use of computer systems and the increasing reliance on stored confidential data creates the potential for substantial harm to flow from the kinds of dishonesty and breaches of trust committed by persons with access to such information. Deterrent sentences are called for and this must usually mean, even for first offenders, a period of immediate imprisonment. 67.Beyond noting that a severe response is called for from the courts in punishing for this type of misconduct it is not possible or desirable to lay down more detailed guidelines. The range of misconduct will be great and the motivations for it equally wide-ranging. Here, the sentence was not wrong in principle and nor was it, in the circumstances of this case, manifestly excessive. 68.For these reasons we dismissed the application for leave to appeal against sentence. Conclusion 69.For the reasons set out in this judgment we dismissed the applications for leave to appeal against conviction and sentence.
Mr Eddie Sean SADPP, of the Department of Justice, for the respondent Mr Ian Polson, instructed by Wong & Co, for the applicant | |||||||||||||||||||
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