HKSAR v. CHUI SING CHI GRACE

HCMA 590/2018

[2020] HKCFI 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 590 OF 2018

(ON APPEAL FROM KCCC 788 OF 2018)

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BETWEEN

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J U D G M E N T

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1.  This application for a certificate to certify that there are two points of law of great and general importance to the Court of Final Appeal arises from a judgment I handed down on 8 April 2020 dismissing an appeal made against conviction by a magistrate[1].

2.  The applicant, a doctor at the Department of Health was convicted after trial by the magistrate of an offence of misconduct in public office contrary to common law and punishable under section 101(I) of the Criminal Procedure Ordinance cap 221.  She was sentenced to 4 months’ imprisonment, suspended for 18 months and a fine of $20,000.

3.  By notice of motion filed on 21 April 2020 and amended on 14 May 2020, the applicant seeks certification under s.32(2) of the Hong Kong Final Appeal Ordinance Cap 484 (“the Ordinance”) that the following two points of law are of great and general importance, namely:

(1)“Whether 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?” (the “First Point of Law”)

(2)“Absent evidence of express false representations by the defendant involved in the misconduct in question, is it 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?” (the “Second Point of Law”)

4.  According to s 32(2) of the Ordinance：

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

5.  I have considered the written submissions filed by both parties and the authorities referred to therein and Mr Cheng Huan SC’s oral submissions. 

6.  As to the first point of law, the proposed point of law is a well settled legal principle.  The Court of Final Appeal at paragraph 87 of the judgment in HKSAR v Hui Rafael Junior[2]

“In this area of the law, as elsewhere, context is all important. Because the essence of the offence is the abuse of office it is necessary that the misconduct be 'serious, not trivial' and, therefore, when asking whether a public officer has misconducted himself in office, it is essential to put that inquiry into its proper context by identifying 'the responsibilities of the office and the officeholder'.”

7.  This first point of law of great and general importance is simply unarguable. 

8.  As to the second point of law, it is well established that when considering the seriousness element, the consequences that followed from an act or omission is to be considered along with the factors stated by Sir Anthony Mason NPJ Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381.  This point of law is already well settled.  This consequentially disposes of the second point of law. 

9.  In my view, as none of the questions asked gives rise to a point of law of great or of general importance I decline to certify any of the questions. 

10.  The application for a certificate under s.32(2) of the Ordinance is therefore refused.