HKSAR v. LAU WAI YEE MONITA

CACC 168/2023

[2024] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 168 OF 2023

(ON APPEAL FROM DCCC NO 515 OF 2021)

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REASONS FOR DECISION

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1.  The applicant applied for bail pending appeal following her conviction for a single charge of misconduct in public office by HH Judge Isaac Tam (the Judge)  on 28 July 2023. The Judge sentenced the applicant to 2 years and 6 months’ imprisonment on 25 August 2023. The applicant’s earliest date of release is 28 March 2025.

2.  On 15 September 2023, the applicant filed a notice of application for leave to appeal against conviction and sentence.  The leave application is fixed for hearing on 27 June 2024.

3.  On 2 February 2024, Mr Benson Tsoi and Ms Joyce Lai, for the applicant, filed Perfected Grounds of Appeal against conviction and sentence. 

4.  As I have previously stated, a court will address the issue of bail pending appeal by asking the preliminary question of whether the appeal has a strong likelihood of success and, if it does, go on to consider matters relevant to whether or not to grant bail, and if so, whether it should be with or without conditions additional to the requirement for the applicant to surrender to the court as appointed (the merits ground).  The court will next consider the question as to the likelihood that all or a substantial part of the sentence will be served before the disposal of the appeal.  It has been held that with respect to this ground, it also needs to be shown that the appeal is at least reasonably arguable or promising (the time ground): HKSAR v Fong King Choi [1].

5.  The present bail application was made on the time ground.  It was submitted that the applicant’s earliest date of release is 28 March 2025, and by the time the appeal was heard, she was likely to have served a substantial part of her sentence whilst her appeal was reasonably arguable and promising. 

6.  After consideration of the submissions from the parties and the facts and circumstances of this case, I granted the applicant bail both on the merits ground and the time ground in relation to her appeal against conviction and sentence. 

7.  It was alleged that the applicant, the holder of a public office, namely a lay member of the Medical Council of Hong Kong between 1 April 2017 and 23 January 2018, wilfully misconducted herself in her public office by (a)  disclosing to PW4, a member of the Society for Community Organisation (SOCO), the personal particulars of PW3 and the details of the complaint made by PW3 with the Medical Council against Dr W; (b)  causing PW4 to arrange a meeting between PW3, PW4 and herself on 26 May 2017 during which she solicited a retainer from PW3 to pursue a civil claim against Dr W; and (c)  accepting instructions via her firm of solicitors from PW3 to act for him in a claim against Dr W.

8.  The applicant, a practising solicitor, volunteered her services to community organisations, including providing legal assistance to the SOCO.  In March 2013 and December 2016, the SOCO referred two patients to the applicant for legal assistance who complained about the medical treatment they received from Dr W.  The applicant, through her firm, instituted legal proceedings against Dr W in respect of these two cases. 

9.  On 3 June 2015, PW3 filed a complaint against Dr W with the Medical Council, which was referred to the Preliminary Investigation Committee (PIC)  of the Medical Council.  The applicant was the only lay member of PIC at the time.  On 11 April 2017, PW3’s complaint was tabled for deliberation by PIC.  Sometime before the PIC meeting, materials relating to the complaint were provided to PIC members.  At the PIC meeting, the applicant declared she was representing another patient in a civil action against Dr W and recused herself from participating further in respect of PW3’s complaint. 

10.  On 27 April 2017, the applicant telephoned PW4, told him of PW3’s complaint against Dr W and asked whether he could help PW3 as PW3 was the third patient complaining about surgery conducted by Dr W.  She told PW4 that PW3 was depressed and that the surgery had ruined his life.  The applicant later sent PW4 a WhatsApp message containing PW3’s contact details (particular (a)).

11.  On 26 May 2017, the applicant, PW4 and PW3 met in the applicant’s legal office to discuss the complaint.  Between 2 and 3 June 2017, there were a series of WhatsApp messages between them regarding various matters including PW3’s complaint and the arrangements for a further meeting (particular (b)).

12.  On 15 June 2017, the applicant, PW4 and PW3 met again and PW3 decided to engage the applicant as his solicitor to commence a civil action against Dr W for medical negligence.  PW3 later paid the applicant’s firm costs on account (particular (c)).

13.  The grounds of appeal against conviction are as follows.  Ground 1: the Judge, having (i)  found for the applicant that she may have acted under a benign motive leading to the impugned conducts; (ii)  rejected the prosecution’s main thesis of an improper motive to “tout”; and (iii)  found “particular (b)” unproven - erred in convicting her on an alternative basis, holding that each particular of the single charge constituted separate offences.  Ground 2: the Judge’s finding that particular (a)  constituted misconduct in public office is flawed.  Ground 3: the Judge’s finding that particular (c)  constituted misconduct in public office is flawed.

14.  The grounds of appeal against sentence are as follows.  Ground 1: the sentence was manifestly excessive.  Ground 2: erroneous reliance on purported factual findings against the applicant.  Ground 3: insufficient regard to applicable mitigating factors.

15.  The Judge in his Reasons for Verdict rejected the prosecution case that the applicant was touting legal work, and therefore she did not have an improper motive when she disclosed PW3’s information to PW4.[2]  He was not satisfied that the applicant caused the meeting with PW3 on 26 May 2017, rather it was PW4’s “own idea” with PW3’s consent.[3] He accepted that the applicant may have acted out of genuine concern to help PW3 through the SOCO.[4] 

16.  Of the appeal against conviction, Mr Tsoi noted that the applicant’s alleged improper motive in touting legal work had not been established and therefore the Judge found that particular (b)  had not been proven.  He complained that the Judge erred in convicting the applicant of particulars (a)  and (c)  alone, on an alternative basis, when the prosecution sought to prove all of the particulars (a), (b)  and (c)  as a continuous course of misconduct, and therefore he was wrong to have convicted on particulars (a)  and (c). 

17.  Mr Tsoi submitted that Ground 1 involved errors arising from the Judge’s conviction on an alternative basis that departed from the plain reading of the charge and the narratives advanced by the parties.  The respondent’s response to this ground is that the prosecution put its case on the basis that the misconduct was constituted by particular (a)  alone or in combination with particular (b)  and/or particular (c).

18.  Mr Tsoi submitted that Ground 2 involved errors in characterising particular (a)  as a “failure to act”, and in the Judge’s approach to “reasonable excuse” and “seriousness” for particular (a).  Irrespective of the characterisation of particular (a)  as a “failure to act”, the question of misconduct turns on a consideration of the circumstances of the applicant’s disclosure of PW3’s personal particulars, including the reason or purpose for why it was done.  See HKSAR v Ho Hung Kwan Michael [5].  The Judge’s discussion on “reasonable excuse” and “seriousness” in respect of particular (a)  raises for consideration whether the applicant’s conduct satisfied the element of seriousness generally.  This element is intended to limit the scope of the offence by excluding conduct that is disciplinary in nature and is not serious enough to be the subject of a criminal sanction.  Whether the misconduct is serious is to be determined “having regard to the 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”: HKSAR v Tsang Yam Kuen Donald [6]. A critical requirement of this offence is the intentional and serious abuse of an official’s public office or position that involves more than just a mere oversight or a lapse of judgment.  The Judge accepted that the threshold for seriousness was high and that a mistake or an error of judgment, even a serious one, was not enough.[7] He also accepted that the applicant’s motive was a relevant consideration in the element of “seriousness”.[8]  Notwithstanding acknowledgement of these relevant considerations,the issue arises as to whether the Judge properly determined whether the threshold for seriousness had been met in the circumstances of this case. 

19.  It was the prosecution case that the applicant disclosed PW3’s personal and contact particulars to PW4 in order to tout legal work.  However, as already noted the Judge did not find this to be the case and accordingly particular (b), the applicant arranging a meeting to solicit a retainer from PW3 for a civil claim against Dr W, was not proven.  This, and other matters, would have had a bearing on whether the applicant’s conduct satisfied the criterion of seriousness.  Other matters of significance were that this was the only time that the applicant provided details of a Medical Council complaint to PW4; that the applicant was handling two other complaints against Dr W; that there was no improper motive on the part of the applicant; and that she might have acted out of genuine concern for PW3.

20.  Mr Tsoi finally submitted that Ground 3 involved errors in convicting on particular (c)  when this was not conduct relating to the applicant’s public office, and the absence of evidence of the applicant’s state of mind regarding her public office when she accepted instructions to act as PW3’s solicitor.  He suggested in this ground that when the applicant accepted instructions to act as PW3’s solicitor she did not and would not consider that this was in the course of or in relation to her public office.  This argument will involve a consideration of particulars (a)  and (c)  together and whether in the circumstances there was a necessary link to the applicant’s powers, duties or responsibilities that would have been known to the applicant.

21.  Of the appeal against sentence, I was persuaded that the grounds of appeal are reasonably arguable.  Even upon a determination that the misconduct in public office was serious, the question remained whether a term of imprisonment was an appropriate penalty and whether other sentencing options should have been considered, such as a suspended sentence, community service order or any other non-custodial sentencing option.  The applicant was 65 years of age with no other previous convictions, with an impeccable record of public service over many years.  It does not appear that appropriate consideration was given to the applicant’s positive good character and her mental health, nor was an appropriate assessment made of the criminality involved and the role and culpability of the applicant in this offence.  It was submitted on the applicant’s behalf in mitigation that this was not a premeditated scheme to procure clients for financial gain and that she acted out of a momentary error of judgment in disclosing PW3’s details to PW4.[9]  It would appear that this was a reasonable characterisation of the misconduct in question.

22.  For the foregoing reasons, bail was granted to the applicant pending appeal.