HKSAR v. YUEN WAI CHONG

[ENGLISH TRANSLATION - 英譯本]

HCMA 201/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 201 OF 2014

(ON APPEAL FROM KCCC 3263 OF 2013)

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JUDGMENT

1.  The Appellant was charged with one count of “Misconduct in Public Office”, contrary to Common Law and punishable under Section 101I(1) of the Criminal Procedure Ordinance, Cap. 221. The Appellant denied the charge and was tried before Deputy Magistrate Veronica Heung (as she then was) in the Kowloon City Magistrates’ Courts. The Appellant was convicted after trial and was sentenced to a community service order of 140 hours.

2.  The Appellant appealed against conviction and sentence. She later abandoned her appeal against the sentence but continued with her appeal against the conviction.

The Charge

3.  The particulars of offence are as follows:

“YUEN Wai-chong, being a public officer, namely, a Senior School Development Officer of the Education Bureau of the Government of Hong Kong Special Administration Region, between the 5th day of July 2011 and the 6th day of July 2011, both dates inclusive, in Hong Kong, in the course of or in relation to her public office, without reasonable excuse or justification, willfully and intentionally misconducted herself by providing a student, namely X, with an unfair advantage over other students by:-

(i) using the information, knowledge or authority acquired from or associated with her public office to refer the said X to the Church of Christ in China Mong Man Wai College (“the School”) which was directly under her official supervision; and

(ii) taking steps to influence the School to consider to admitthe said X as its student.”

Prosecution case 

Undisputed facts

4.  The Appellant was a Senior School Development Officer of the Education Bureau and was attached to the Kwun Tong District School Development Section. One of the schools under her purview was the Church of Christ in China Mong Man Wai College (hereinafter as “Mong Man Wai College” or “the School”).

5.  According to the testimony of the first prosecution witness PW1 (a Senior Education Officer who worked in the School Places Allocation Section), the allocation results of the Secondary School Places Allocation System would be announced in July each year. After the announcement of the results, the secondary schools had the discretion to allocate the remaining unallocated Form 1 places, which were commonly called “the places open for walk-in applications”. The schools participating in the system would submit to the Education Bureau the number of reserved places in advance and after the announcement of the allocation results, the School Places Allocation Section would also provide to the School Development Section the relevant statistical figures. Therefore the Senior School Development Officers of the School Development Section would know roughly how many places were still available at the various schools.  However, they would not know the exact number of “places open for walk-in applications” in each school because not every student would accept the place allocated to him and the number of Form 1 repeaters would also vary.

6.  The second prosecution witness PW2 was a Principal Education Officer of the Education Bureau who was in charge of the Kowloon District School Development Section whereas the third prosecution witness PW3 was the Chief School Development Officer of the Education Bureau in charge of the Kwun Tong District School Development Section. Both PW2 and PW3 confirmed that generally speaking, the Education Bureau would not offer assistance to any student who had been allocated a school place. If a student was minded to apply for any other school and sought assistance from the Education Bureau, the Senior School Development Officers might consider providing him with information of the schools which still had vacancies and let the student make application on his own initiative.   It was only under special circumstances that they would consider making a referral for the student. A student’s preference for a secondary school with English as its major medium of instruction did not amount to a special circumstance. The Education Bureau would not make a referral on this ground alone.

7.  Apart from that, before a Senior School Development Officer made a referral for a student who was his relative/friend, he must declare his interest in accordance with the relevant Education Bureau Internal Circular (prosecution exhibit P8) and Civil Service Bureau Circular (prosecution exhibit P9) so that arrangements could be made. The two Circulars are distributed to the staff of Education Bureau (the Appellant included) twice a year for perusal.

8.  [X] in this case was the nephew of a Madam Chu who was the landlord of an apartment leased to the Appellant for over ten years. The Tenancy Agreements were admitted as prosecution exhibits P33 to P38. The fourth prosecution witness PW4 and the fifth prosecution witness PW5 were involved in the renovation works of the apartment. They testified that the Appellant’s opinion in relation to the renovation matters was decisive. The Quotation of the renovation work, the emails and receipts were admitted as prosecution exhibits P20 to P29, and the proofs of the payments made by the Appellant were admitted as prosecution exhibits P59N and P62F. The evidence showed that the payments were made by Madam Chu and other related persons.

Evidence of the trial at first instance

9.  On the day of the announcements of the allocation results, i.e. 5July 2011, [X], who was then a primary six student in the Kowloon City School Net, was allocated to a school with Chinese as the major medium of instruction. As the parents of [X] (i.e. the eighth prosecution witness PW8 and the ninth prosecution witness PW9) were keen to send [X] to a school with English as the major medium of instruction, they went out in search of a school. Through Madam Chu, the parents of [X] learnt that the Appellant was an officer of the Education Bureau and could possibly introduce to them a Form One vacancy in a school with English as the major medium of instruction. As arranged by Madam Chu, they then went to meet the Appellant in Kowloon Regional Education Office in Kowloon Tong.

10.  But after [X] and his parents arrived at the platform of Kowloon Tong Railway Station and phoned the Appellant, the Appellant went to that platform to meet them. The parents of [X] confirmed that on that day they handed the academic reports, school allocation result slip and certificates of extra-curricular activities of [X] to the Appellant. When they met the Appellant on that day, they were not aware of the fact that there was this Mong Man Wai College in Kwun Tong which was suitable for [X]. Nor did they know of the facts that the School used English as its major medium of instruction and that there were still “places open for walk-in applications”. They did not personally submit [X’s] particulars and application to the Mong Man Wai College.

11.  According to the testimony of Mr. Yip, Principal of Mong Man Wai College, the sixth prosecution witness PW6, in the morning on the day of announcement of allocation results, the Appellant called him and said that she would like to introduce [X] to attend Form 1 in the School. Before that, the Appellant and Mr. Yip only had official dealings and not personal contact. Later that afternoon as per Mr. Yip’s request, the Appellant sent [X’s] particulars by facsimile to the School. The words “Education Bureau” were printed on the facsimile message (prosecution exhibit P16), but the application form for “places open for walk-in applications” to Mong Man Wai College was not included. Mr. Yip subsequently passed the relevant information to the seventh prosecution witness PW7 who was Mr. Chan, the Vice Principal, for processing according to the normal procedures.

12.  In the morning on 6 July 2011, the Appellant called the Principal Mr. Yip again to enquire of [X’s] application for “places open for walk-in applications”. On the same day, she sent a facsimile message with supplementary information concerning [X] (prosecution exhibit P17) to the School. The facsimile message was a recommendation letter written by the Appellant for [X]. It stated among other things that [X] had “good language proficiency and an exceptional keen interest in sports”, “his parents are both professionals” and that the Appellant wished that [X] could be given a chance to attend the College so as to receive an “all-rounded education”.  This time the Principal Mr. Yip also passed the said information to the Vice Principal Mr. Chan for processing.

13.  According to the testimony of the Vice Principal Mr. Chan, Mong Man Wai College switched to use English as its major medium of instruction in recent years. Each year there was only a few “places open for walk-in applications” but he received up to 200 to 300 applications. Among those, 20 to 30 applications were through referrals. When he received [X’s] application form the Principal Mr. Yip, he realized that [X] was referred by the Appellant. However, he did not give any preference to [X] when he processed the applications. Based on the principle of fairness and justice, he would rank all the eligible applicants according to their marks and give priority to those with higher marks. As a result, an interview was also arranged for [X]. He agreed that if two students had similar marks, a student introduced by an associated person (such as [X]) would have an advantage. But subsequently when he admitted [X] as a student, he made his decision based on [X’s] results and was not directly influenced by the Appellant’s referral and recommendation.

The defence case

14.  The Appellant did not give evidence or call any witness. The magistrate summarized the stance of the defence in her Statement of Findings (Paragraph 7):

“X was a good student who excelled in his academic performance and personal conduct. The School would not and did not admit X because of the Appellant’s referral. Even if the Appellant had not referred X, X could still make a walk-in application, which would be considered by the School on the principles of fairness, equality and openness. It was a well-known fact that the School had “places open for walk-in applications”. The Appellant did not take advantage of the information, knowledge or authority of or related to her public office. And her actions had no influence upon the School in any way when it considered [X’s] applications. The Appellant did not recommend X to the School in the capacity of her public office, and she did not have any dishonest motive.”

The findings of the trial magistrate

15.  The trial magistrate listed out the elements of the offence in paragraph 30 of her Statement of Findings:

“30. The relevant authorities have clearly set out the elements of the offence as follows: (a) a public officer; (b) in the course of or in relation to his public office; (c) wilfully misconducts himself; or by wilfully neglecting or failing to perform his duty; (d) without reasonable excuse or justification; (e) where such misconduct is serious.”

16.  The trial magistrate ruled that the Appellant was a public officer and the alleged acts were performed in the course of or in relation to her public office. The trial magistrate stated in paragraphs 37 to 38 that the alleged misconduct of the Appellant included three parts as follows:

(1) The Appellant breached the Internal Circular of the Education Bureau and that of the Civil Service Bureau as she had not declared that Madam Chu, a relative of [X], was her “good friend” and that they were “personal friends”;

(2) The Appellant referred [X] to Mong Man Wai College which was under her direct supervision; and

(3) The Appellant influenced Mong Man Wai College in its consideration to admit [X] as its student.

17.  The trial magistrate stated that as far as part (1) was concerned, the prosecution must prove the mens rea that the Appellant was intentional and deliberate. Regarding the misconduct mentioned in parts (2) and (3), the prosecution must prove that the Appellant had an improper motive. From paragraph 47 of the Statement of Findings, it can be seen that the improper motive referred to by the trial magistrate was a dishonest intent.

18.  In relation to the misconduct in part (1), the trial magistrate ruled that the Appellant and Madam Chu were “good friends” because they had a ten year relationship as tenant and landlord, and that the Appellant had decisive influence over the renovation of the said property. They were obviously “personal friends”. The trial magistrate thus ruled that pursuant to the regulations in the Education Bureau Internal Circular and the Civil Service Bureau Circular, the Appellant should have declared her relationship with Madam Chu before she made the referral for [X].

19.  Regarding the misconduct in part (2), the trial magistrate found that it was an abuse of the authority of her office for the Appellant to refer [X] to Mong Man Wai College. The trial magistrate stated that even though the information in relation to the “places open for walk-in applications” was not confidential, the fact remained that the Appellant got hold of the information by virtue of her public office.

20.  As for the misconduct in part (3), the trial magistrate found that after the Appellant referred [X] to Mong Man Wai College, she not only sent [X’s] information by facsimile to the office of the Principal of the College, but also followed up by a phone call and a facsimile message the next day. She even made a recommendation for [X] in the facsimile. It was her obvious intent to cause the College to consider [X] favourably so that [X] could “beat others to the punch” and that the excellent academic results of [X] could be made known to Mong Man Wai College earlier. By doing so, she had caused [X] to have received an advantage unfair to other students. The trial magistrate stated that in view of what the Appellant did, together with the fact that she deliberately did not declare her relationship with [X], the Appellant was aware that her conduct was dishonest.

21.  The trial magistrate said that the referral by the Appellant carried a certain weight on [X’s] application. Moreover, as the Vice-Principal Mr. Chan said, if two students were more or less the same in their performances, the School would give priority to and admit the one introduced by an associated person, and that would include [X].

22.  The trial magistrate concluded that the Appellant had no reasonable excuse or justification for doing what she did. Lastly, the trial magistrate took into account the duties and authorities of the Appellant and the impact she made when she made the referral for [X] and found that the misconduct by the Appellant was serious, and not trivial. She found her guilty of the charge.

Grounds of Appeal

23.  The Appellant was represented by Mr. Lawrence Lok SC, leading Mr. Joe Chan, and they put forward three grounds of appeal.

First Ground of Appeal: the Appellant’s Misconduct

24.  The Appellant argued that the prosecution had failed to prove the misconduct alleged in the particulars of the offence. As the number of “places open for walk-in applications” and the contact information of the Principal of Mong Man Wai College was not confidential information, and the public could also have access to such information, such information was not necessarily gained by the Appellant through her public office. Consequently, the prosecution failed to prove that the Appellant made use of the information available to her in public office to make the referral for [X].

25.  The Appellant also said that the evidence in the case showed that Mong Man Wai College’s decision to admit [X] was not based on the Appellant’s referral, and was in no way influenced by the Appellant. Therefore the prosecution could not prove that the Appellant influenced the School’s consideration to admit [X] as its student. The trial magistrate was wrong to have relied on the evidence of the Vice-Principal Mr. Chan given in response to a hypothetical question (i.e. on the assumption that two students were more or less the same in their performances, the School would give priority and admit the one introduced by an associated person). She had also overlooked Vice Principal Mr. Chan’s evidence that his selection and ranking of the applicants was not influenced by the Appellant.

26.  The Appellant argued that the advantage of “beating others to the punch” mentioned by the trial magistrate in paragraph 47 of her Statement of Findings was not substantiated by facts. There was no evidence in the case to show that the students who managed to make “walk-in applications” earlier for the places would have an advantage in the application process.

27.  In view of the above reasons, the Appellant argued that the prosecution had failed to prove that the Appellant did the misconduct as alleged in the particulars of the offence.

Second Ground of Appeal: the Appellant’s Dishonest Intent

28.  The Appellant argued that the trial magistrate was erroneous in finding that the Appellant had a dishonest intent when she did the conduct alleged in the case. The Appellant considered that relying merely on the basis that the Appellant had rented Madam Chu’s property for over ten years and that she had decisive influence over the renovation of the said property, the trial magistrate did not have sufficient evidence to conclude that the only reasonable and irresistible inference was that the relationship between Madam Chu and the Appellant was “good friends”. Therefore, the trial magistrate was erroneous to rule that the Appellant was under an obligation to declare her relationship with Madam Chu.

29.  Moreover, the relevant Education Bureau Internal Circular and Civil Service Bureau Circular had provided for a vague definition of “family and friends” which rendered a declaration necessary. The Appellant therefore argued that the trial magistrate had erroneously overlooked the possibility that the Appellant subjectively did not know that she was under an obligation to declare her relationship with Madam Chu.  Consequently, the trial magistrate should not have relied on the fact that the Appellant had not declared her relationship with Madam Chu to conclude that the Appellant definitely had a dishonest intent.

Third Ground of Appeal: the Appellant’s Misconduct was not “so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder”

30.  The Appellant submitted that even if the Appellant’s conduct was improper, it did not fulfill the requirement of “so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder” as laid down in the judgment of the case HKSAR v Ho Hung Kwan Michael [1] (“Ho Hung Kwan Michael”). The Appellant argued that the information involved in the case was itself public information and that her participation in the whole admission process of [X] was not high, and that she did not put any pressure on the School. After the referral, [X] still had to go through an interview and the final decision to admit [X] was not influenced by the Appellant. [X] did not had the advantage of “beating others to the punch” as suggested by the trial magistrate.

31.  The Appellant submitted that although with a referral by the Appellant, [X] did not have to submit an application form for “the places open for walk-in applications” to be considered by the Mong Man Wai College, Mr. Chan, the Vice Principal, said in his evidence that even without an application form, the School would still process the application provided that they had the student’s information. Mr. Chan pointed out that the most important things were the academic results and the English proficiency of the student, and not the application form. The Appellant argued that failing to fill in the application form was not the misconduct alleged in the case and the Court should therefore not consider it.

32.  Based on the above grounds, the Appellant argued that [X] did not receive any advantage in the case. The Appellant further pointed out that if the waiving of the submission of an application form and causing the School to receive [X’s] information earlier could amount to an advantage, it was an advantage too trivial to mention.

Responses by the Respondent

33.  Mr. Martin Hui, SC, Senior Assistant Director of Public Prosecutions, leading Mr. Jones Tsui, Senior Public Prosecutor, acted for the Respondent. They presented the following responses:

First Ground of Appeal: the Appellant’s Misconduct

34.  The Respondent agreed that the fact that many schools had “places open for walk-in applications” was well known, and the information that the Appellant had in the present case was different from other cases of this type where only the accused had the information concerned. However the Respondent was of the view that the Appellant’s conduct was far more than merely making use of the information that Mong Man Wai College had “places open for walk-in applications”.

35.  The Appellant made use of her public office to have access to the contact information of Mr. Yip, the Principal of the School. She had actually contacted Mr. Yip to make a referral for [X] and went even further to send [X’s] information in an official memo to the School by facsimile, followed by a recommendation for [X] on the following day by facsimile. Under the circumstances, when the Appellant referred [X] to the School, she had made use of information available to her in her public office, which was the fact that Mong Man Wai College had switched to a school using English as its major medium of instruction and that the School still had “places open for walk-in applications”; the knowledge she had, which was the fact that she knew the Principal of the School Mr. Yip; and the authority she had, which was the ability to make direct contact with the Principal Mr. Yip.

36.  The Respondent emphasized that the intent of this common law offence was to monitor the conduct of public officers. The offence was mainly concerned with the Appellant’s conduct itself, and not the consequence brought about by her conduct.  The consequence of the Appellant’s conduct and the seriousness of it surely had its bearing, but the crux of the case was not whether there was a limit to the number of applications for “places open for walk-in applications” so that unfairness was caused. Instead it was the obvious intent of the Appellant, a public officer, when she referred [X] to the School, to attempt to ask the School to consider to admit [X]. The Respondent relied on paragraphs 40, 47 and 49 of the judgment in Wong Kwong Shun Paul[2] to support his argument.

Second Ground of Appeal: the Appellant’s Dishonest Intent

37.  The Respondent said that according to section 3.1 of the Education Bureau Internal Circular, the relationship that called for a declaration was “personal friends”. The prosecution only had to prove that Madam Chu and the Appellant were friends at a personal level, and did not have to prove that they were “good friends”.

38.  Section 3.2 of the said Circular stipulated that an officer in the Bureau should decline to provide assistance, advice or information on official matters to relations and friends, which would give the recipient an unfair advantage over other people. All legitimate requests should be referred to the proper subject officer to be dealt with in the normal way.

39.  Furthermore, according to Paragraph 3 of the relevant Civil Service Bureau Circular, the Appellant must declare any conflict of interest which could influence her judgment, or might reasonably be perceived as having such influence. Among those interests, “private interests” included financial interest. The present case involved the Appellant’s interest relating to the renovation fees of the apartment she rented.

40.  The Respondent also relied on the email exchanges (included in prosecution exhibit P24) between Madam Chu and the staff of the renovation company (PW5). At 12:24 p.m. on 5 July 2011, Madam Chu sent an email regarding the renovation matters. She said that as the office of the Appellant was rather busy, she would reply emails on behalf of the Appellant. In the email sent at 1:31 a.m. on 7 July 2011, Madam Chu said that the credit limit of the Appellant’s credit card was limited, and Madam Chu could make part of the payment for her by credit card. In the email sent at 1:42 p.m. on 13 July 2011, Madam Chu said that the Appellant would settle the payment in full.

41.  The Respondent argued that Madam Chu and the Appellant were definitely not merely casual friends. If their relationship was only that of an ordinary landlord and tenant, Madam Chu would not have replied the Appellant’s emails, and would surely not have paid part of the renovation expenses for her by credit card. This was particularly true when the Appellant paid about only twenty thousand dollars as monthly rental and the total amount of the renovation expenses was as much as three hundred thousand Hong Kong dollars.

42.  In addition, the abovementioned emails showed that apparently, the renovation expenses were shouldered by the Appellant and not Madam Chu. Otherwise, Madam Chu would not have said that she replied to the matters “on behalf of” the Appellant and made payment by credit card “for” her, and that it was the Appellant who would settle the outstanding amount in full. However, all the evidence adduced in the trial in connection with the renovation expenses indicated that the payments were actually made by Madam Chu and associated persons. Although the evidence adduced in court did not include all renovation expenses, and that no evidence in the present case ever showed that the Appellant did pay other parts of renovation expenses or that she had repaid the amount to Madam Chu, the evidence concerned did at least show that Madam Chu paid part of the renovation expenses which should be paid by the Appellant. Their relationship must be one of personal friends, and there might be monetary dealings or financial interest that had to be declared.

43.  The Respondent submitted that the Appellant chose not to give evidence. Therefore the trial magistrate had no evidential basis to rule that the Appellant could have subjectively thought that she did not have to make any declaration in respect of her relationship with Madam Chu. Where there was no evidence to support this possibility, the trial magistrate made the only reasonable and irresistible inference and found that the Appellant must have known that she had to make a declaration and she was dishonest in failing to do so. The Respondent cited paragraph 44 of the judgment in Wong Kwong Shun Paul to support the inference drawn by the trial magistrate.

Third Ground of Appeal: the Appellant’s Misconduct was not “so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder”

44.  The Respondent said that even though [X] could have been admitted by the School without the Appellant’s referral and her misconduct might not have caused serious consequence, the consequence was merely one of the criteria to determine the seriousness of the alleged misconduct and not the only criterion. The Respondent cited paragraph 49 of the judgment in Wong Kwong Shun Paul to support his argument.

45.  In response to the Appellant’s reliance on the Ho Hung Kwan Michael case, the Respondent considered that the facts therein were obviously different from those in the present case. The defendant in that case did not breach any code of conduct and there was no possibility of him being subject to disciplinary punishment for the alleged acts. On the other hand, the conduct of the Appellant was obviously a misconduct in breach of the stipulations in Education Bureau Internal Circular and Civil Service Bureau Circular and thus the Appellant is liable to be disciplinarily punished.

46.  The Respondent emphasized that even if the Appellant did the above misconduct with a good motive to help [X], she as a public officer should act and speak with prudence or else the image of the civil servants would be tarnished and public confidence on the Education Bureau would be affected. The Respondent submitted that the misconduct by the Appellant could not be said to be not serious. The Court as the “final gatekeeper” may not treat her misconduct with indifference.

Reply by the Appellant

47.  Regarding the email at 12:24 p.m. on 5 July 2011 which Madam Chu suggested replying on behalf of the Appellant, the Appellant submitted that in view of the fact that she had rented Madam Chu’s apartment for over ten years and that Madam Chu was the owner of the apartment under renovation, the suggestion by Madam Chu to reply emails on her behalf did not mean that there was a personal friendship between them.

48.  In respect of the email sent at 1:31 a.m. on 7 July 2011 by Madam Chu which proposed making credit card payment for the Appellant, the Appellant submitted that the arrangement was not strange taking into account that it was purely a business consideration as she had rented Madam Chu’s apartment for over ten years. The Appellant produced to this Court the transcripts of the testimony of PW4 at the trial and submitted that there was no evidence in the case as to who actually paid the renovation expenses.  The Appellant argued that simply relying on the emails produced in court, this Court had no sufficient evidence to make an inference as to the relationship between the two persons.

Consideration by this Court

49.  It is apparent that the trial magistrate correctly listed out the elements of the offence in accordance with the authorities of Sin Kam Wah[3] and Shum Kwok Sher[4].

First Ground of Appeal: the Appellant’s Misconduct

50.  It is a well-known fact that many schools have “places open for walk-in applications”. However, the crux of the present case was not whether the information was accessible to the public, but whether there was a sufficient factual basis for the Court to find that the Appellant had abused her public office, and had made use of her public office or the information, knowledge and authority of her public office to make the referral for [X].

51.  It was an undisputed fact that Mong Man Wai College switched to use English as its major medium of instruction. The Appellant made use of the information available to her in her public office to learn on the day the school allocation results were released that there was such a school in Kwun Tong District which still had “places open for walk-in applications”. Although the information was not confidential, under the “walk-in applications” system in Hong Kong, an applicant must make an application to the school he desired before the closing date, so the time element was nonetheless a crucial factor in the present case.

52.  As the Respondent had submitted, the Appellant had made use of information far more than the mere fact that Mong Man Wai College still had “places open for walk-in applications”. The Appellant took advantage of the knowledge that Mong Man Wai College used English as its major medium of instruction, the information that “places open for walk-in applications” were still available, and the fact that she knew Mr. Yip, the Principal of the School. She abused her authority and contacted Mr. Yip, the Principal, directly and referred [X] to the School after she had disclosed her identity as a public officer. She even sent [X’s] information in an official memo to the School by facsimile. If the Appellant had not intended to use her public authority to make the referral, she did not need to reveal herself as an Education Bureau officer when she phoned Mr. Yip, the Principal. Nor did she need to send [X’s] information to Mr. Yip, the Principal, in an official memo by facsimile. The referral of [X] by the Appellant was obviously of an official and not personal nature. When she made the referral, she undoubtedly made use of the information, knowledge and authority available to her in her public office or related to it.

53.  The Appellant made use of the information, knowledge or authority of her public office to make the referral for [X]. It was an abuse of her authority in the public office. The testimonies of PW1 to PW3 regarding how the Appellant made use of her authority to make the referral were consistent and not in dispute. As a Senior School Development Officer, the Appellant should not have provided assistance to students who had been allocated school places. Even if there were students who wished to apply for other schools and sought assistance from her, she could at most provide the information of schools which had vacancies to the parents of the students and let them make applications on their own. The reason that [X] wanted to attend a secondary school with English as its major medium of instruction was not a special circumstance. The Appellant should not have made the referral for [X]. What the Appellant did in referring [X] to Mong Man Wai College was a breach of the normal procedure and was an obvious abuse of her authority.

54.  As a matter of fact, if the Appellant had not known that her referral was an abuse of her authority, she would not have deliberately and intentionally failed to declare her relationship with Madam Chu. In respect of the dishonest intent of the Appellant, I would further elaborate it when dealing with the Appellant’s second ground of appeal. Simply put, had the Appellant believed that the referral was in compliance with the normal procedure, she would have first declared her relationship with Madam Chu who was the aunt of [X], and then passed [X’s] case to other Senior School Development Officers for referral.

55.  Another allegation in the particulars of offence is that the Appellant took steps to influence Mong Man Wai College to consider to admit [X] as its student. Undoubtedly, the final decision of Mong Man Wai College to admit [X] was not influenced by the Appellant. But according to the undisputed evidence of [X’s] parents in the trial, [X] would definitely not have applied for Mong Man Wai College without the Appellant’s referral.

56.  Mong Man Wai College is situated in the Kwun Tong District and is obviously not within the Kowloon City District to which [X] originally belonged. To [X], the School was a cross district school which had only switched to use English as its major medium of instruction in recent years. The parents of [X] had no idea of the existence of this School which was suitable for his son. As they had never considered applying for this School, it followed that they would not have known or considered whether this School had “places open for walk-in applications”.

57.  The referral by the Appellant in the case indeed and in fact influenced Mong Man Wai College in its consideration of whether to admit [X] or not as its student. If she had not made the referral, [X] would not have applied for the School and it naturally followed that [X] would not have been considered by the School. Due to the conduct of the Appellant, the School changed from not considering [X] to having a chance to consider [X’s] application.

58.  As a matter of fact, the Appellant’s influence on the School in its consideration process was more than the fact that she had referred to it a student [X] who would otherwise not have applied for a place. After the Appellant made a verbal referral of [X] to Mr. Yip, the Principal, she not only sent [X’s] information to him by facsimile as per his request, but also used an official memo to do so. She followed up on [X’s] application on the next day and when she sent [X’s] supplementary information by facsimile, she added a letter written in her own handwriting, which Defence Counsel referred to in his submission during the trial as a recommendation letter written in a way as “every cook praised his broth”. The Appellant obviously had the intention to influence the School to consider [X’s] application favourably.

59.  In this case, the Appellant intended to depart from her public duty to influence the consideration of Mong Man Wai College to admit [X], and consequently she had an influence on the decision of the School to admit [X]. The most obvious influence was that the School would otherwise have not the chance to consider [X’s] application, but at the end it considered his application and admitted him as its student. Therefore, though the School’s final decision to admit [X] was not influenced by the Appellant, I am of the view that the prosecution did prove at the trial that the Appellant had done what was alleged in the offence and had influenced Mong Man Wai College’s consideration whether to admit [X] as its student.

60.  As the alleged misconduct in the case involved the Appellant having misconducted herself by providing [X] with an unfair advantage over other students, I must consider whether the prosecution proved this point in the trial beyond any reasonable doubt.

61.  As pointed out by the Appellant, evidence in the case showed that when Mong Man Wai College considered the applications for “places open for walk-in applications”, it did not do so in a first-come-first-served manner. Therefore [X’s] application did not have an advantage over others during the admission process because it reached the School earlier. What the trial magistrate said in paragraph 47 of her Statement of Findings in relation to an advantage of “beating others to the punch” was in fact not substantiated by evidence.

62.  But undeniably, the Appellant’s conduct caused [X] to be considered by Mong Man Wai College for admission as its student, and it was an advantage. Without her referral, [X] would not have submitted “walk-in application” to the School and would not be considered by it. To those students who were not aware of the existence of the School and therefore did not submit “walk-in applications”, this would be sufficient to constitute the unfair advantage alleged in the particulars of offence. It was particularly so though the “walk-in applications” were not processed on a first-come-first-served basis, it had indeed a deadline and a time limit.

63.  Regarding those students who went to the School to submit “walk-in applications”, they had learnt from various sources that the School used English as its major medium of instruction and still had “places open for walk-in applications”. Mr. Chan, the Vice-Principal, gave evidence that the School would consider all applications according to the principle of fairness and justice. [X] was screened and selected for allocation of school places just like all other students who submitted “walk-in applications” to Mong Man Wai College. So apparently, [X] was no different from any other students who had submitted “walk-in applications”. But as the trial magistrate stated in paragraph 48 of her Statement of Findings, Mr. Chan, Vice Principal of the School, admitted that if two students were of more or less the same in their performances, the one who was introduced by an associated person (e.g. [X]) would have an edge over the other. Although it was a hypothetical question and there was no applicant of more or less the same performance as [X], in case there was an applicant of more or less the same performance as [X], [X] would have an edge over the student as the School would first consider [X]. I am of the view that edge was sufficient to constitute an unfair advantage over other students who submitted “walk-in applications”.

64.  As a result, although the trial magistrate was wrong in relying the so-called “beating others to the punch” as an advantage to find that [X] had been provided with an unfair advantage over other students and had made an error in her finding of facts, I am of the view that the evidence in the case was sufficient to show that at the trial the prosecution successfully proved that the Appellant had provided [X] with an unfair advantage over other students.

65.  I find that the first ground of appeal is not established.

Second Ground of Appeal: the Appellant’s Dishonest Intent

66.  The finding of the relationship between Madam Chu and the Appellant was a finding of fact. Although the trial magistrate had the chance to hear and observe PW4 and PW5 when they gave evidence, there was no necessarily sufficient factual basis to draw the only reasonable and irresistible inference that Madam Chu and the Appellant were definitely “good friends” merely on the ground that the Appellant had rented Madam Chu’s apartment for over ten years and she had decisive influence over the renovation matters of the apartment.

67.  According to section 3.1 of Education Bureau Internal Circular, the relationship that requires a declaration is “personal friends”. Pursuant to the said Circular, the Appellant had an obligation to declare her relationship with ordinary personal friends and not necessarily good friends. Therefore the prosecution only had to prove that Madam Chu and the Appellant were private friends or “personal friends”, and did not have to prove that they were “good friends” to reach the particular finding made by the trial magistrate. However, I notice that the trial magistrate said in paragraph 39 of her Statement of Findings that the evidence showed that the Appellant was a “good friend” of Madam Chu, a relative of [X]. Later in the same paragraph, she clearly pointed out that Madam Chu and the Appellant were “obviously personal good friends”. As the trial magistrate had taken into account the content of the Circular, it seems that it was merely a clerical mistake when she wrote “personal friends”（私交友好） as “personal good friends”（私交好友）.

68.  Section 3.2 of the said Circular also stipulated that the Appellant should declare any conflict or perceived conflict of interest. In other words, the Appellant not only had to declare an actual conflict of interest, she must also declare a perceived conflict of interest. The Appellant should decline to provide assistance, advice or information on official matters to relations and friends; and should report to her superior officer any private interest that might influence, or appear to influence, her judgment in the performance of her duties. Therefore, the Appellant’s duty to make declaration was a wide one.

69.  As far as the present case is concerned, the Appellant was Madam Chu’s tenant and they had known each other for over ten years. The Appellant also had decisive influence over the renovation matters of the rented property. I cannot overlook the series of emails in P24. I do not have the transcript of the testimony by PW5 Shiu Kwok Bin, but his testimony could be seen in the closing submission of the prosecution (page 14 of the Appeal Bundle). The testimony of Mr. Shiu showed that the Appellant and Madam Chu had made addition or alteration to the said renovation work. They had a meeting and a quotation was provided to the Appellant in an email. The relevant email is marked P24.

70.  I can see that the email was sent by “Ban Shiu” (Mr. Shiu) on 5 July 2011 to the Appellant with a copy to Madam Chu. On the same day, Madam Chu made a reply to Mr. Shiu with a copy to the Appellant. Then on 6 July 2011, Mr. Shiu sent an email directly to Madam Chu with a copy to the Appellant. Madam Chu continued to communicate with Mr. Shiu by email with a copy to the Appellant.

71.  The testimony of Mr. Shiu was mainly about the renovation matters, especially the decisive influence of the Appellant in this regard.

72.  It would seem neither the prosecution nor the defence had noticed that Madam Chu replied the emails for the Appellant and said in one of the emails that she would be prepared to make payments for the Appellant by credit card. Madam Chu was not a witness in the case and it would be hearsay evidence if the truthfulness or otherwise of the content of the emails was relied upon. But undeniably Mr. Shiu originally sent the emails to the Appellant with only a copy to Madam Chu, and yet Madam Chu replied on behalf of the Appellant with a copy sent to the Appellant.

73.  Although I cannot consider the truthfulness or otherwise of what Madam Chu had said (i.e. the money came from the Appellant and she paid by credit card on her behalf), I can take into account that Madam Chu had made such an indication or proposal to Mr. Shiu.

74.  Not only had Madam Chu replied emails concerning the renovation matters on behalf of the Appellant, she had also proposed to pay part of the renovation expenses for her. I consider that the only reasonable and irresistible inference would be that the relationship between them exceeded an ordinary landlord and tenant relationship. They were, to say the least, personal friends.

75.  As a matter of fact, Madam Chu not only proposed to pay part of the renovation expenses on behalf of the Appellant, she did pay part of those expenses.  Both the Appellant and the Respondent agreed that there was no sufficient evidence in the case to show at the end who had shouldered the renovation expenses. Did the Appellant pay any part of the renovation expenses? Or did she return the payment to Madam Chu? But it is undeniable that at least part of the said expenses was paid by Madam Chu or her associated persons.

76.  In view of the monthly rentals paid by the Appellant and the total amount of the said renovation expense, it was an unreasonable allegation for the Appellant to advance that Madam Chu paid the renovation expenses for her or on her behalf because of a commercial consideration. The only reasonable explanation for Madam Chu’s behaviour was that she was a personal friend of the Appellant and so Madam Chu was willing to handle the renovation mattes for the Appellant and to pay part of the renovation expenses for her or on her behalf.

77.  Although the Appellant and Madam Chu could have other economic consideration or arrangement in respect of the renovation expenses, it could not be overlooked that Madam Chu actually paid the renovation expenses or at least paid part of the expenses on her behalf. The Appellant and Madam Chu had economic ties which involved monetary transaction. She had benefited from Madam Chu’s kindness or owed her a favour. According to the relevant regulations, the Appellant must declare her relationship with Madam Chu before she made the referral for [X].

78.  As the Appellant chose not to give evidence, the trial magistrate had no evidential basis to consider whether or not the Appellant had subjectively believed that she did not have to declare her relationship with Madam Chu. I certainly do not have evidence in this regard. The evidence in the present case shows that there was no possibility that the Appellant was not aware of the stipulations in the relevant circulars. Based on the above analysis, the Appellant was under an obligation to make declaration.

79.  The Respondent relied on the case of Wong Kwong Shun Paul and cited paragraph 44 of the judgment by Court of Appeal:

“44. …… As found by the trial judge, it was evident that the applicant was intentionally hiding some dishonest conduct in the course of his public office. Had he not been dishonest, he would certainly have disclosed his close relationship with the agent for the EPOX products, namely Nikka Materials, when he recommended those products.”

80.  As I have said in the above discussion about the Appellant’s misconduct, the Appellant’s concealing of her relationship with Madam Chu was obviously because she knew that her conduct was a departure from her official duty. As with the analysis by the Court of Appeal in Wong Kwong Shun Paul, I am of the view that if the Appellant had not been dishonest, she would definitely have declared her relationship with Madam Chu, the aunt of [X]. It can be seen that the Appellant was aware of the situation and the consequences of her conduct when she deliberately and intentionally committed the conduct alleged in the offence.

81.  I conclude that the only reasonable and irresistible inference was that the Appellant certainly knew that she had to make a declaration and dishonestly failed to so.

82.  I find that the second ground of appeal is not established.

Third Ground of Appeal: the Appellant’s Misconduct was not “so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder”

83.  Undoubtedly, there is a keen competition among Hong Kong students for Form One places in secondary schools. “Places open for walk-in applications” are a small number of school places that remain available after the results of Secondary School Places Allocation System are announced. As such, the “places open for walk-in applications” are extremely important to those students who have not been allocated the schools of their choice and their parents. On the other hand, students and parents have a particular strong demand for Form One places in schools that use English as its major medium of instruction. I consider these are obvious and well-known phenomena in the society.

84.  Mong Man Wai College has changed to use English as its major medium of instruction in recent years. As Mr. Chan, the Vice Principal of the School, said, the competition for “places open for walk-in applications” was very keen. Each year there were at least 200 to 300 “walk-in applications” and the “places open for walk-in applications” were just a few. Therefore, the school place involved in the case was obviously of worth and importance.

85.  The information involved in the case was not confidential. On the other hand, the fact that [X’s] information might have reached the School earlier was not an advantage because the School did not consider the applications on a first-come-first-served basis. But I think that in the present case, the Appellant’s misconduct caused [X], who originally did not know about Mong Man Wai College, to be given a chance to be considered for admission, and he was actually admitted. Although [X] was not admitted as a direct consequence of the Appellant’s referral, the conduct by the Appellant caused [X], who otherwise would not have applied for the School, to be considered and admitted by it, and there was a possibility that he could have an edge over other students (see paragraph 63 above). The misconduct by the Appellant had provided [X] with an unfair advantage over other students.

86.  I have considered the worth and importance of the school place and concluded that what the Appellant did and the consequence of what she did could not be said to be insignificant. I do not accept the submission by the Appellant that her conduct did not cause any serious consequence.

87.  I agree with the argument in the judgment of Wong Kwong Shun Paul cited by the Respondent. That case was about the defendant recommending EPOX products on four occasions without declaring his relationship with Madam Wong as personal friends. The Court of Appeal decided in paragraph 47 of the judgment[5] that the alleged misconduct may still be extremely serious whether or not it would cause serious consequences as a result. The Court of Appeal also reiterated in paragraph 49[6] that while the consequences of a misconduct may be relevant to the seriousness of the misconduct, they are merely one of the criteria — and not the sole criterion — for assessing the seriousness of the misconduct.

88.  The Appellant said that the fact that [X] did not fill in an application form for “places open for walk-in applications” was not the misconduct alleged in the case and should therefore not be considered by Court as an advantage to [X]. As a matter of fact, the only place that the trial magistrate said in her Statement of Findings that [X] did not fill in an application form was in paragraph 34 where she discussed whether the alleged conduct was carried out in the course of or in relation to her public office. In other words, the fact that [X] did not fill in an application form was irrelevant as far as the grounds of appeal were concerned because it was not a factual basis upon which the trial magistrate found the Appellant committed a misconduct.

89.  Undoubtedly, just as Mr. Chan, Vice Principal of Mong Man Wai College, said in his testimony, when the School considered “walk-in applications”, the most important thing was the personal information of the student, and it was not a must for a student to submit an application form and it would not affect his admission result. But I think that the evidence in this regard is not of any use to the Court when considering whether the alleged misconduct was of sufficient seriousness that merited a criminal penalty. The misconduct in the case was that the Appellant contravened the regulations and failed to report her relationship with Madam Chu, the aunt of [X], when she referred [X] to Mong Man Wai College and affected the School’s consideration whether to admit [X] as its student, thereby providing [X] with an unfair advantage over other students. The alleged misconduct had nothing to do with whether [X] had filled in an application form.

90.  What mattered in the case was the Appellant’s post and her official duties. The Secondary School Places Allocation System in Hong Kong aims at setting down clear procedures so that primary six students will be allocated suitable places in Form 1 of secondary schools. The System must be fair and just. The Appellant held an important position in the allocation of school places. Her official authority to make referrals for students enabled her to make appropriate adjustments in the allocation results of secondary school places to make sure that all students would be allocated a place in secondary schools.

91.  The Appellant abused her authority in her office and committed the misconduct alleged in the present case. She provided [X] with an unfair advantage and undermined the fairness and justice of the whole Secondary School Places Allocation System and the subsequent arrangements for “walk-in applications”.

92.  Taking into account that the Appellant’s misconduct was in complete contradiction with her official duties and authority, I am of the view that the misconduct was serious and fell so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. Her misconduct was not a trivial one.

93.  As pointed out by the Respondent, the Ho Hung Kwan Michael case was not comparable to the present case. The Court of Final Appeal clearly stated in that case that though the defendant departed from his official duties, he did not breach any code of conduct of the Hospital Authority or any professional code of conduct. The out-patient system in that case was not stigmatized by his conduct. On the contrary, the conduct of the Appellant was not only in breach of the stipulations in Education Bureau Internal Circular and Civil Service Bureau Circular that governed the handling of conflict of interest, it had also violated the practices of how official authority should be used. She had tarnished the image of the whole Secondary School Places Allocation System and the subsequent arrangements for “walk-in applications”.

94.  In the Ho Hung Kwan Michael case (page 27 of the judgment), the Court of Final Appeal emphasized that the court should take into account the factors set out in the case of Shum Kwok Sher which included the office held by the defendant and the responsibilities of the office, the importance of the public objects which they serve, and the nature and extent of the departure from those responsibilities.

95.  I reiterate what the Court of Appeal said in the case of Wong Kwong Shun Paul (paragraph 40):

“40. In order that Hong Kong can continue to be a corruption-free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute. Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed. In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any conduct of a public officer which contravenes the above principles is serious misconduct.”

96.  I am of the view that regardless of whether the Appellant’s misconduct had caused [X] to be given a place in the School, her misconduct was nonetheless serious. The Appellant’s misconduct had deviated from the public objects that she was to serve – to make fair and just arrangements for the allocation of school places. She had also abused the discretion conferred upon her by her office when she dishonestly recommended the nephew [X] of her personal friend to Mong Man Wai College, a school under her direct supervision, without making a declaration. I do not accept what the Appellant said that her misconduct was trivial.

97.  I find that the third ground of appeal is not established.

Conclusion

98.  For the above reasons, I dismiss the Appellant’s appeal.

[1] HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525.

[2] HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 832.

[3] Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192.

[4] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381.

[5] “47. What the applicant did was not only misconduct in the form of a serious breach of his duties, but it also deviated from the public objects which he was required to serve.  By wilfully recommending the products which his good friends dealt in without making the requisite disclosure, the applicant had failed to perform the duties imposed on him by his office and had misused the discretion conferred upon him by his office.  With an improper motive, he had wilfully exercised the said discretion in such a way as to benefit his friends.  The applicant’s misconduct was extremely serious whether or not it would cause the Housing Department to use unsuitable products and suffer serious consequences as a result.”

[6] “49. What the applicant did was misconduct, and such misconduct was serious in nature.  These were so plain and obvious that it was simply unnecessary for the trial judge to elaborate on them.  As Mr. Lee, SADPP for the respondent, has correctly pointed out, the abovementioned case of AG’s Reference (No. 3 of 2003) merely indicates that, while the consequences of a misconduct may be relevant to the seriousness of the misconduct, they are merely one of the criteria — and not the sole criterion — for assessing the seriousness of the misconduct.”