HKSAR v. CHUI SING CHI GRACE (徐聖智)

FAMC No. 9 of 2020

[2020] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 590 OF 2018)

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REASONS FOR DETERMINATION

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Mr Justice Bokhary NPJ:

1.  At the conclusion of the hearing, we dismissed this application by Dr Grace CHUI Sing-chi for leave to appeal to the Court of Final Appeal against her conviction, reached after trial in the Magistrates’ Court and affirmed on intermediate appeal to the High Court, on a charge of misconduct in public office, contrary to common law and punishable under s 101I(1) of the Criminal Procedure Ordinance (Cap 221).  We said we would hand down our reasons later.  These are our reasons.

2.  Throughout the period from and including 2 July 2004 to and including 14 April 2016, Dr Chui was a public official, namely a Medical and Health Officer in the Department of Health, holding the post of Officer-in-Charge of the San Po Kong Elderly Health Centre (“the Centre”).

3.  The particulars of the charge are that during that period, Dr Chui, in the course of or in relation to her public office, without reasonable excuse or justification, wilfully and intentionally misconducted herself in the following way.  She made staff members of the Centre process requests for clinical specimens tests of four relatives of hers who were not eligible for the Centre’s clinical specimens testing services.  Then she falsely represented to staff members of two laboratories that the clinical specimens in respect of those relatives submitted to them by the Centre were from persons eligible to the Centre’s clinical specimens testing services.  Of those specimens, 63 were submitted to one laboratory and 12 to the other.  Finally, she required and caused staff members of those two laboratories to conduct clinical specimens tests on those 63 and 12 specimens and issue reports thereon to her as the officer-in-charge of the Centre.

4.  Leave to appeal to the Court of Final Appeal was sought both under the “point of law of great and general importance” limb and under the “substantial and grave injustice” limb of s 32(1) of the Court’s statute.

5.  For Dr Chui two points were put forward as, it was submitted on her behalf, reasonably arguable points of law of great and general importance involved in the present case.  The first point was that “it is a necessary precondition to any assessment of seriousness in the case of a health care professional for the court to identify with precision the nature and extent of the public duties breached by the relevant conduct (discounting any breach of private duties) before determining the consequences of that breach of public duty”.  And the second point was that “[a]bsent evidence of express false representation by the defendant involved in the misconduct in question, [it is] necessary for the court to consider the consequences of such misconduct in determining whether the element of seriousness is established for the offence of misconduct in public office”.

6.  The elements under Hong Kong law of the offence of misconduct in public office were set out by the Court in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 at pp 210I-211A.  For ease of comprehension, those elements were there designated (a) to (e).  By reference to them, misconduct in public office is committed where:

(a) a public official;

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

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

(d) without reasonable excuse or justification; and where

(e) such misconduct is serious, not trivial, having regard to the responsibilities 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.

7.  That is the law, and nothing should be introduced to confuse it.  So said the Court in Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745 at para 3.

8.  Neither of the two points of law put forward for Dr Chui contain anything appropriate to add to the elements set out in Sin Kam Wah’s case.  That is clear beyond reasonable argument to the contrary.  It is the well-established jurisprudence of the Court that, each in its own way, all misconduct in public office cases are to be judged by reference to those elements.  There is no basis for granting Dr Chui leave to appeal under the “point of law of great and general importance” limb.

9.  What remains to be addressed is the question of leave to appeal under the “substantial and grave injustice” limb.

10.  The kernel of the prosecution’s case against Dr Chui is that the facts, either admitted or proved beyond reasonable doubt, pointed unerringly to her having misused her position as a holder of public office by making it a practice, carried on for many years, to procure public health services, at a clinic of which she was in charge as a public official, for family members of hers who, unlike those whom it was her public duty to serve, were to her knowledge not eligible for those services at that clinic.

11.  Contrary to what is urged on Dr Chui’s behalf - whether under the “point of law of great and general importance” limb, the “substantial and grave injustice” limb or both of those limbs - the following matters are clear beyond reasonable argument to the contrary.  There is nothing further that needed to be known about the extent or nature of her duties.  The inference of dishonesty on her part was irresistible.  It is axiomatically disruptive when the services of a clinic are extended to persons who are ineligible for its services, and there is nothing further that needed to be known about the resultant impact on resources or workload.  She having extended to them services of the Centre for which they were to her knowledge not eligible, it is no defence for her to say that her relatives could have obtained such services at other public facilities at little or no cost to themselves.  Issue has been taken on Dr Chui’s behalf with some of the things which the courts below said about the degree of seriousness of her misconduct.  But what happened here was plainly serious rather than trivial, and what was said in the courts below as to the degree of seriousness supports this conclusion.  That the laboratories would not verify eligibility only goes to show that the mere submission of the samples in question to them for testing was a representation that those samples were of eligible persons, which, as Dr Chui obviously knew, they were not.

12.  What was urged on Dr Chui’s behalf does not amount to a reasonably arguable case of any departure from accepted norms at all let alone any such departure so serious as to constitute a substantial and grave injustice to her.

13.  Just as there is no basis for granting Dr Chui leave to appeal under the “point of law of great and general importance” limb, so is there no basis for doing so under the “substantial and grave injustice” limb.

14.  This is a sad case for Dr Chui and her family. One can hope that Dr Chui, a person of previous unblemished character, will in time rebuild her career.  But that is all one can do.  There is no basis on which to grant her leave to appeal.