HKSAR v. LAU WAI YEE MONITA

CACC 168/2023 [2024] HKCA 576

On appeal from [2023] HKDC 1049

[2023] HKDC 1204

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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J U D G M E N T

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1.  On 28 July 2023, following a trial before District Court Judge Isaac Tam (the Judge) the applicant was convicted of a single charge of misconduct in public office. On 25 August 2023, the Judge sentenced the applicant to 2 years and 6 months’ imprisonment.

2.  On 15 September 2023, the applicant filed a notice of application for leave to appeal against conviction and sentence.

3.  On 12 March 2024, the applicant applied for bail pending appeal, which this Court granted[1]. She was represented by Mr Benson Tsoi (now Mr Benson Tsoi, SC) and Ms Joyce Lai, who had filed Perfected Grounds of Appeal against conviction and sentence dated 2 February 2024. After the bail hearing, they filed Amended Perfected Grounds of Appeal against conviction and sentence dated 23 March 2024.

The charge

4.  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.

The prosecution case

5.  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.

6.  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 before a meeting of PIC for its deliberation. Prior to the meeting, materials relating to PW’s 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.

7.  In 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, on 27 April 2017, sent PW4 a WhatsApp message containing PW3’s contact details (particular (a)).

8.  On 26 May 2017, PW4 arranged for PW3 to meet the applicant to discuss his complaint. It was the prosecution case that during this meeting, the applicant was touting for legal work and solicited a retainer from PW3 to pursue a civil claim against Dr Wong.[2] Between 2 and 3 June 2017, there were a series of WhatsApp messages between them regarding various matters, including PW3 enquiring of the applicant whether she would represent him and arrangements for a further meeting (particular (b)).[3]

9.  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)).

The defence case

10.  The applicant gave evidence in her defence and called witnesses as to her good character. The defence case was that particulars (a) and (c) happened but were not capable of amounting to misconduct in public office. The applicant had recused herself from considering the complaint by PW3 against Dr W because she had cases against the doctor, and out of concern for PW3’s well being and mental state, she passed on PW3’s contact details to PW4, an officer of SOCO, to help him.[4] PW3 was diagnosed with ENS (Empty Nose Syndrome), which was alleged to have been caused by the inappropriate manner in which Dr W had performed surgery on him to correct a deviated septum.

11.  The defence accepted that the meeting on 26 May 2017 under particular (b) took place, but it was at PW4’s instigation of PW4 and she did not tout for any business from PW3. At the meeting, she explained that she got his information from the Medical Council and provided it to PW4 to assist him. She confirmed with PW3 that it was in order to discuss his case.[5] Sometime after the meeting, in a text message on 2 June 2017, PW3 enquired of the applicant whether she would represent him.[6] He also sent an email to PW4, making the same enquiry.

12.  It had been discussed with PW3 that there was a statute of limitations for a claim by PW3 against Dr W and that he may need to issue a protective writ of summons. On 14 June 2017, PW3 sent a text message to the applicant requesting that his file be sent back to his office and thanked her for her effort. She took this as meaning that he no longer required her assistance, which she had voluntarily provided to him.[7] While she was meeting PW4 on 15 June 2017, PW3 attended the applicant’s office. PW4 explained that PW3 wanted to know more about a protective writ of summons. After a lengthy discussion concerning the legal procedures involved, PW3 instructed the applicant to represent him in an action against Dr W. After the meeting, the applicant sent a retainer letter to PW3.

The reasons for verdict

13.  The Judge rejected the prosecution case that the applicant was touting legal work and found that she did not have an improper motive when she disclosed PW3’s information to PW4.[8] 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.[9] He accepted that the applicant may have acted out of genuine concern to help PW3 through the SOCO.[10] He, therefore, did not find particular (b) proven.

14.  As particulars (a) and (c) were not in dispute, the Judge found them proven. He concluded that particulars (a) and (c) were independent misconduct in relation to the applicant’s public office but could also be considered together.[11]

15.  The Judge considered whether, for the element of wilful misconduct, an improper motive was an additional mens rea element for the offence.[12] He identified the applicant’s misconduct as “disclosure” and “acceptance of instructions”. He said that the “disclosure” was a breach of duty by a failure to act, that is, a “nonfeasance” for which no improper motive was needed to be proved as part of the mens rea. He said that the “acceptance of instructions” was acting in excess of power or authority, that is, a “ malfeasance” for which a dishonest, corrupt or malicious motive was required. He found that there was clear and agreed evidence of the applicant accepting the instructions for personal benefit, which constituted the necessary improper motive.[13]

16.  The Judge did not find that the applicant had reasonable excuse or justification for the “disclosure”[14] or the “acceptance of instructions”[15].

17.  The Judge was satisfied that individually and cumulatively the misconduct under particulars (a) and (c) met the seriousness threshold.[16] He considered the “disclosure” to be a serious breach of her public duty to protect the personal data of complainants of the Medical Council and preserve the confidentiality of information that was entrusted to her by the Medical Council.[17] He considered the “acceptance of instructions” for her private gain to be a serious abuse of the public interest.[18]

The appeal against conviction

18.  The grounds of appeal against conviction are as follows. Ground 1: the Judge erred in finding the element of “seriousness” proven. Ground 2: the Judge erred in finding there was no “reasonable excuse” for the applicant’s conduct. Ground 3: the Judge erred in holding that the unauthorised disclosure by the applicant (particular (a)) was a “failure to act” or nonfeasance type of misconduct. Ground 4: the Judge erred in finding that the act of the applicant accepting PW3’s offer of retainer (particular (c)) constituted criminal misconduct. Ground 5: the Judge, having concluded that the applicant did not tout, nor intended to tout for PW3’s legal work, erred in convicting her on particulars (a) and/or (c).

Ground 1: the “seriousness” threshold

19.  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 [19]. An important element of the offence of misconduct in public office is the seriousness of the public official’s alleged misconduct. This element is intended to limit the scope of the offence by excluding conduct that is disciplinary in nature and not serious enough to warrant a criminal sanction. This aspect of the offence of misconduct in public office has been strongly endorsed in R v Chapman and Ors [20]; Chan Tak Ming v HKSAR [21]; and Shum Kwok Sher v HKSAR[22]. This aspect of the offence of misconduct in public office was cogently argued by Mr Tsoi by reference to 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 [23]. 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 judgement, even a serious one, was not enough.[24] He also accepted that the applicant’s motive was a relevant consideration in the element of “seriousness”.[25] However, there is an issue as to whether the Judge properly determined that the threshold for seriousness had been met in the circumstances of this case.

20.  It was the prosecution case that the applicant disclosed PW3’s personal and contact particulars to PW4 in order to tout for legal work. However, as already noted, the Judge did not find this to be the case and accordingly in 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.

21.  Mr Tsoi submits that the Judge erred in concluding that the applicant’s conduct reached the requisite level of “seriousness” to constitute criminal conduct, in particular, he erred in not giving sufficient weight to: (1) the case concerned a single incident of breach of confidentiality; (2) nothing similar occurred in the many years of public service by the applicant in the Medical Council; (3) the evidence pointed to a mistake or error by the applicant acting out of altruism, not an intentional abuse of public office; (4) the applicant having recused herself in relation to PW3’s complaint did not act in conflict with the interests of the Medical Council and her conduct did not affect its public function; and (5) any actual harm to public interest caused by this single incident was very limited.

22.  Ms Human Lam, with Mr Wayne Lee, for the respondent, argues that particular (a) itself was misconduct of a serious nature, and the additional finding of particular (b) and (c) would make the offence a more serious one.[26] She contends that while the Judge did not find particular (b) proven the combined effect of particulars (a) and (c) satisfied the “seriousness” threshold.[27] She further argues that the disclosing of confidential information was a serious matter and refers to several cases, but they involve a public official disclosing confidential information for payment or an improper motive. As pointed out by Mr Tsoi, PW3 knew his personal information had been provided to PW4 and later had meetings with PW4 and the applicant. He also argues that the Judge’s findings that the applicant did not have an improper motive in disclosing PW3’s personal information and did not tout nor intended to tout for PW3’s legal work, to be an important consideration as to whether the applicant’s misconduct met the “seriousness” threshold. He complains that the Judge when addressing the element of seriousness failed to take into account the applicant’s positive good character and desire to assist PW3 with his complaint.

23.  A significant finding in this case was that the applicant did not tout for PW3’s legal work and was motivated by a genuine concern to help PW3 in his complaint against Dr W.[28] Moreover, PW3, in his subsequent dealings with the applicant, was aware that his contact details had been provided to PW4 by the applicant who obtain this information in her capacity as a member of the Medical Council. I am satisfied that this ground is reasonably arguable.

Ground 2: the defence of “reasonable excuse”

24.  It is complained that the Judge wrongly considered the reasonableness of the applicant’s alleged misconduct instead of her excuse for her actions: HKSAR v Ho Loy [29]. Mr Tsoi submits that the Judge fell into error by concluding that the applicant’s acts were unreasonable because there existed alternative means to address any concern the applicant had for PW3. He argues that the Judge’s conclusion the applicant could have assisted PW3 by alternative means without misconducting herself did not address the “reasonable excuse” defence and thereby deprived her of an answer to the offence. He submits that the Judge, having accepted that the applicant may have acted out of a genuine or altruistic motive to assist PW3, who she had perceived was suffering from depression, should have concluded this amounted to a “reasonable excuse” in all the circumstances.

25.  Ms Lam submits that the Judge was plainly aware of the excuse given by the applicant that she was motivated by a desire for SOCO to assist PW3, but he considered it was not a reasonable for the applicant to disclose confidential information concerning PW3 to an outside party.[30] She contends that the disclosure of PW3’s personal information, even for an altruistic motive, could not constitute a reasonable excuse or justification for the applicant to then act for PW3 in a civil action as a paid legal representative against the complained doctor.

26.  This ground is allied to the first ground, and I am satisfied that it is reasonably arguable.

Ground 3: the mis-categorisation of particular (a)

27.  Mr Tsoi submits that the Judge erred in characterising particular (a) as a “breach of duty by failure to act” or nonfeasance type of misconduct for which no improper motive was required and finding that the applicant’s disclosure was a “deliberate act” done when she knew it was a breach of the data protection principles. Consequently, the Judge (1) failed to fully apply the principles in Shum Kwok Sher and did not properly assess whether the unauthorised disclosure was done with improper motive or purpose; (2) wrongly limited his consideration of the applicant’s altruistic motive only when assessing the elements of “seriousness” and “reasonable excuse”; and (3) did not properly assess how his finding on the applicant’s altruistic motive could be consistent with an intention to abuse her office.

28.  As a result, the applicant was convicted irrespective of her benign motive or altruistic purpose for the disclosure.

29.  Ms Lam argues that the misconduct in particular (a) is not about the applicant’s substantive duty of handling medical complaints, but rather her breach of duty of confidentiality, a non-performance of duty[31], thus improper motive was not required. She also notes that the defence had changed its stance on the issue: at the beginning of the trial, the defence maintained that improper motive was required in addition to wilfulness[32], but at the presentation of closing addresses, the defence accepted that motive was not an element of the offence[33].

30.  The categorisation of particular (a) turns on a consideration of the facts and circumstances as a whole and is linked to the elements of seriousness. For this reason, this ground is reasonably arguable.

Ground 4: the finding of misconduct under particular (c)

31.  It is argued by Mr Tsoi that the Judge erred in holding that the act of the applicant accepting PW3’s offer of retainer (particular (c)) constituted criminal misconduct. He contends that: (1) the applicant’s acceptance of the retainer was not an act that related to her public office in the Medical Council, and did not have necessary link to the applicant’s powers, duties or responsibilities in relation to the Medical Council that would have been known to her[34]; (2) he failed to considered that having made the findings that there was no touting (particular b) and the applicant may disclose PW3’s contact information out of altruistic motive, there was a disconnect between the unauthorized disclosure (particular (a)) and the ultimate acceptance of the retainer (particular (c)) such that the latter was not the applicant’s intended consequence when the disclosure was made; (3) he wrongly equated the applicant’s act of accepting the retainer as a solicitor, with other cases involving abuse of office for personal gain which were given to them on account of their public office, such as Sin Kam Wah and Chapman; (4) he wrongly found the applicant had an intention to abuse her office when accepting the retainer; and (5) he wrongly used the “chain of causation” to find misconduct (i.e. the applicant would not have been offered the retainer but for her unauthorised disclosure), when the law required both an objective discernible link between the applicant’s conduct and her public office for personal gain, and a subjective appreciation of that link by the applicant.

32.  The respondent maintains that the prosecution case was that particulars (a) to (c) were interrelated, and particular (c) was an extension of particular (a). It is argued that the retainer was obtained as a consequence of a meeting arranged by PW4, who arranged the meeting with the use of the confidential information provided by the applicant obtained in her capacity as a lay member of the Medical Council. Although the Judge did not find that the applicant caused PW4 to arrange the meeting or solicit for a legal retainer in the meeting (particular (b)), it is submitted that there was sufficient connection between particulars (a) and (c), and the Judge had correctly identified the connection.[35] The Judge did not state that the applicant’s case was comparable to Sin Kam Wah and Chapman, and they were only used as examples. The Judge also correctly found there was clear and agreed evidence of the applicant’s acceptance of instructions from PW3 “for personal benefit which would supply the necessary improper motive” for particular (c)[36].

33.  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.

34.  I am persuaded that this ground is reasonably arguable.

Ground 5: the widening of the prosecution’s case

35.  The focus of this ground is the particulars of the charge, which alleged a single offence of misconduct by a course of three specified interconnected events. Mr Tsoi noted that the applicant’s alleged improper motive in touting for legal work had not been established, and therefore, the Judge found that particular (b) had not been proven. He complains that the Judge erred in convicting the applicant of particulars (a) and (c) alone, or 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). Consequently, (1) the Judge departed from the case the applicant faced and added a new dimension to the prosecution case during the defence closing address; (2) the Judge’s approach rendered the charge duplicitous; and (3) the Judge failed to consider that the applicant’s acceptance of the retainer was not her intended consequence when the disclosure was made in particular (a).

36.  Ms Lam’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). She argues that it was open to the Judge to accept all or some of the prosecution’s allegations as set out in the particulars, and this was made clear by the prosecution to trial. She adds that an improper motive or improper purpose was not required as part of the mens rea for particular (a) and therefore, the Judge was not wrong in finding that this particular was not accompanied with the purpose to tout for the PW3’s legal work. She also argues that the additional requirement of an improper motive or purpose for particular (c), but not for particular (a), did not make the charge duplicitous as this merely went to prove the mens rea of “wilfulness”.

37.  This ground will require a consideration of the particulars of the charge and an examination of the narratives advanced by the parties at trial. In the circumstances, I accepted this ground is reasonably arguable.

The appeal against sentence

38.  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.

39.  I am satisfied that the grounds of appeal against sentence 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 and 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.[37] It would appear that this was a reasonable characterisation of the misconduct in question.

Conclusion

40.  For the foregoing reasons, I am satisfied that the grounds advanced on the applicant’s behalf applicant against her conviction and sentence are reasonably arguable, and she is granted leave to appeal her conviction and sentence on those grounds.