HKSAR v. CHUI SING CHI GRACE

HCMA 590/2018

[2020] HKCFI 581

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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J U D G M E N T

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1.  The appellant, a doctor at the Department of Health was convicted after trial by a magistrate[1] 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.

2.  The appellant now appeals her conviction and sentence. 

Overview

3.  The appellant was the sole doctor and officer in charge at the San Po Kong Elderly Centre (“the Centre”) set up by the Department of Health (“DH”).  Her family members were not eligible to the services at the Centre as they were not 65 or over.  As the officer in charge, the appellant took clinical specimens from her family members at the Centre. She made use of staff at the Centre to make a total of 75 requests for testing of the clinical specimens to two government laboratories over a period of 12 years.  The government laboratories then analysed the specimens and produced laboratory reports which were sent to the appellant at the Centre, which the staff at the Centre then passed onto her.

4.  The magistrate found this was a case of dishonest appropriation by a public officer of valuable human and technological resources belonging to the public and the government, public resources that are of obvious importance, because the laboratory reports contained technical information of diagnostic significance and the appellant’s misconduct was serious.[2]  

5.  The magistrate found that the appellant had committed a malfeasance.  He found that she was dishonest and had a secondary improper motive namely to obtain laboratory reports of diagnostic significance for the benefit of her family members[3].

6.  As a result of her request for the clinical specimens to be tested through the Centre and at the laboratories she :-

(i)  caused the staff at the Centre to deal with the requests for clinical tests for the benefit of her family members as if the tests had been requested for the benefit of members of the Centre; 

(ii)  by her conduct falsely representing to the laboratories that her family members were entitled to the laboratory services and

(iii)  caused the staff members of the laboratories to conduct tests and issue test reports. 

The charge of misconduct in public office

7.  The particulars of the amended charge were as follows:

“CHUI Sing-chi, Grace, being a public official, namely Medical and health Officer in the Department of Health of the Government of Hong Kong Special Administrative Region, between the 2^nd day of July 2004 and the 14^th day of April 2016, both dates inclusive, while holding the post of Officer-in-charge of the San Po Kong Elderly Health Centre (“the Centre”), in the course of or in relation to her public office, without reasonable excuse or justification, wilfully and intentionally misconducted herself by:-

a)  Making or causing staff members of the Centre to process the requests for clinical specimens tests of CHUI Sing-sau Joseph, CHUI Sing-on Priscilla, CHUI Sing-ping and HUI Christine Yan-hei who were not persons eligible for clinical specimens testing services of the Centre;

b)  Falsely representing to the staff members of the Clinical Pathology Laboratory Centre (“CPLC”) that 63 clinical specimens in respect of the said CHUI Sing-sau Joseph, CHUI Sing-on Priscilla, CHUI Sing-ping and HUI Christine Yan-hei which were submitted to the CPLC by the Centre were from persons eligible for clinical specimens testing services of the Centre;

c)  Falsely representing to the staff members of the Public Health Laboratory Centre (“PHLC”) that 12 clinical specimens in respect of the said CHUI Sing-sau Joseph, CHUI Sing-on Priscilla, CHUI Sing-ping and HUI Christine Yan-her which were submitted to the PHLC by the Centre were from persons eligible for clinical specimens testing services of the Centre;

d)  Requiring and causing staff members of CPLC to conduct clinical specimens tests to the said 63 clinical specimens and issue reports of the tests to her as the officer-in-charge of the Centre; and

e)  Requiring and causing staff members of PHLC to conduct clinical specimens tests to the said 12 clinical specimens and issue reports of the tests to her as the Officer-in-charge of the Centre. “

The undisputed facts at trial

8.  The appellant was the sole doctor and officer-in-charge of the Centre set up by the DH, located in San Po Kong between September 1999 and October 2016.  There were also nurses, clerical staff and workman working at the Centre. 

9.  The Centre provides integrated health services including health assessments and medical consultations to the elderly aged 65 and over on a membership basis.  The members of the Centre are entitled to medical services, namely health assessment, medical consultation by medical officers and clinical specimen tests which tests were obtained from either one or two laboratories under the DH.

10.  Enrolled members are required to pay an annual fee and a fee for each medical consultation, which includes the fee for drug prescriptions and clinical specimens testing services (laboratory tests).

11.  Members paid fees either as eligible persons or as non-eligible persons.  Members holding a valid Hong Kong Identity Card and other persons approved by the Director of DH are eligible for the rates of charges applicable to eligible persons.  Eligible persons are required to pay an annual membership fee of $110 and a consultation fee of $50 ($45 before June 2017) for each medical consultation, which included the fees for prescriptions, x-ray examination and clinical specimen tests, if necessary.

12.  The appellant’s core duty was to provide medical and health services to the elderly who were members of the Centre. 

13.  From July 2004 to April 2016, that is for a period of 12 years, whilst in her position as the sole doctor and officer in charge of the Centre she obtained free of charge, 75 laboratory tests (on 67 occasions) in respect of four of her family members who were not eligible to the service at the Centre as they were not 65 or over. 

14.  In order to make a request for a laboratory test for the appellant’s family members, the appellant had to complete and endorse a Test Request Form. The appellant took the specimens herself from her family members and placed them together in sealed packets for delivery to the laboratories.  The nurses working at the Centre made entries in the daily registers stipulating that the specimens were sent to the laboratories “care of the appellant” and when the reports were received at the Centre, the nurses would chop them with the receipt stamp and hand them over to the appellant.  The magistrate described these as “menial tasks”[4].

15.  Upon receipt of the clinical specimens and the Test Request Forms from the Centre, staff members of the laboratories would conduct the analysis of clinical specimen tests.  After the analysis, the laboratories would send the test reports to the Centre by fax. 

The prosecution case at trial

16.  The case for the prosecution was that for the relevant period the appellant misconducted herself in her public office as the sole doctor and officer in charge as she abused her official position in acting preferentially in favour of her family members who were not eligible for services at the Centre.  By her conduct she made use of the staff at the Centre and falsely represented to the laboratory staff that they were eligible for testing when they were not. 

17.  The prosecution referred to the relevant civil service circulars and guidelines on conflict of interest and abuse of official position.   A government officer is expected to serve the public with integrity, honesty, and impartiality.  He must avoid conflicts, actual or potential, between his official duties and his private interests; he must not use his official position to further his private interests; and he must not coerce or induce his subordinates or others to do anything to his own benefit or that of his family and friends.  The officer must not, in his official position, act or be seen to be acting preferentially in favour of them.[5]

The defence case at trial

18.  The appellant elected not to give evidence or call any witnesses.  The appellant relied on the exculpatory part of her answer to the questionnaire prepared by the DH[6] and her cautioned statements given to the Independent Commission Against Corruption (“ICAC”)[7].  The appellant said that her sister and daughter had consulted her when they felt unwell, she had arranged for the necessary laboratory tests for them out of concern for their health, it had never occurred to her that doing so at the Centre was improper and she would not have done so had she known that it was improper, and she had never intended to deceive or take advantage of anyone; and she apologised for her ignorance and undertook not to do so again.[8]

19.  The appellant relied on her appraisal reports, character references, donation records, appreciation letters and her good character.  The defence case as put by way of cross examination and closing submissions was that the prosecution case put in context both factual and legal was not such that the appellant had committed the offence of misconduct in public office. 

20.  The defence submitted that the conduct by the appellant was a mistake or error of judgment on the part of the appellant.  Her conduct was not of sufficiently serious misconduct to satisfy the offence of misconduct in public office.  Further it was the defence case that she did not act dishonestly. 

Issue at trial and on appeal

21.  The practice of the Centre and the 75 requests (on 67 occasions[9]) for laboratory tests made during the 12 years by the appellant in respect of her family members who were not eligible to the service were all not in dispute. 

22.  The sole issue at the trial and on this appeal was and is whether the appellant’s misconduct was so serious as to warrant a criminal conviction.  Or in other words was the appellant’s conduct so serious as to move it from the realm of administrative fault to that of criminal behavior. 

The magistrate’s findings

23.  In convicting the appellant, the magistrate set out his reasons and considered the relevant law in his comprehensive and extensive statement of findings (“SOF”). 

24.  He set out the elements of the offence of misconduct in public office as reformulated in Sin Kam Wah and Another v HKSAR (2005) 8 HKCFAR 192 at paragraph 47 of the SOF:-  

“The offence is committed where:

(1)  a public official;

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

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

(4)  without reasonable excuse or justification; and

(5)  where such misconduct is serious, not trivial, 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.”

25.  The magistrate found all the prosecution witnesses truthful and reliable.  He placed no weight on the appellant’s exculpatory answer to the DH’s questionnaire[10] and considered the defendant’s cautioned statement made to the ICAC did not take the matter any further[11]^. 

26.  The magistrate found that the appellant whilst acting in her official position as the doctor in charge of the Centre she was to provide medical and health services to the elderly[12]^. He found that she was well familiar with the criteria of the member’s eligibility for services provided at the Centre.  She was the only person who could make requests for analysis on clinical specimens from members.  She knew that either of the two laboratories would test the clinical specimens[13].  He found that she had abused her powers and discretions in the course of her public office for the benefit of her family members[14].  She had abused her powers and discretions for personal purpose which was clearly contrary to the public objects pursued by the DH[15]. She was acting preferentially in favour of her family[16]. 

27.  He found that the appellant caused the members of the staff of the Centre to process the requests for the tests which they would not otherwise have had to do[17]. As the doctor of the Centre she was aware that her requests for laboratory tests on the clinical specimens sent from the Centre would be processed by the two laboratories[18]. By her conduct she falsely represented, namely by using the test request forms belonging to the Centre[19], to the staff at two laboratories that her family were persons eligible of the Centre.  Her misrepresentation to the laboratory staff at the two laboratories caused the staff to conduct the laboratory tests and issue reports. 

28.  The magistrate further found her acts were clearly dishonest according to the Ghosh test;[20], she had a secondary improper motive, namely to dishonestly obtain laboratory reports of diagnostic significance for the benefit of her family members[21]. He found her misconduct was without reasonable excuse or justification[22].

29.  The magistrate was satisfied beyond all reasonable doubt that this is a case of serious misconduct in public office as it was a dishonest appropriation by a public officer of valuable human and technological resources belonging to the public and the government, public resources that are of obvious importance, because the laboratory reports contained technical information of diagnostic significance[23].

Grounds of appeal

30.  The appellant admits by her conduct she has apparently breached circulars and guidelines[24] issued by the Hong Kong Government[25] but that such breaches of duty or misconduct was not so serious as would reasonably justify a criminal conviction against her. 

31.  The appellant’s broad grounds of appeal against conviction are that the learned magistrate erred in finding that:-

(i)  the misconduct was “serious and not trivial,” despite his finding that there was no evidence showing the misconduct caused any demonstrable loss to the public revenue and/or had any effect on the services provided in the Centre and

(ii)  the appellant was dishonest, given there is no evidence of misrepresentation either in the documents adduced by the prosecution or the oral evidence of prosecution witnesses (“PWs”) and

(iii)  even if the misconduct is considered serious it was not sufficiently serious to be a criminal offence. 

32.  I turn now to deal with the specific grounds of appeal.

Ground 1- The magistrate was wrong in introducing a new category of misconduct without considering that the conduct must be serious not trivial. 

33.  The appellant complains that the magistrate erred in introducing a new category of misconduct by regarding that “misappropriation of valuable public human and technological resources” (the “Novel Concept”) per se, as “a species of misconduct in public office” without considering the essential elements of the offence that the misconduct must be “serious, not trivial”.

34.  The appellant referred to previous authorities which had not only stressed but also extensively evaluated this essential element which elevates a disciplinary misconduct to a crime.  The appellant submitted that a proper and careful analysis is called for, as held by Sir Anthony Mason in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at paragraph 86:

“whether it is serious misconduct in this context 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”

Discussion

35.  I accept Mr Johnathan Man SADPP appearing with Mr Andrew Cheng SPP counsel for the respondent’s submission that ‘Misappropriation of valuable public human and technological resources’ was just the magistrate’s choice of expression to summarise the misconduct of the appellant. 

36.  Misconduct in public office may take many different forms.  Sir Anthony Mason NPJ said at paragraph 81 and 91 of Shum Kwok Sher :

“81…Abuse of such powers and duties may take various forms, ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, to oppression.”

’91. The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers…’ 

37.  The offence can therefore be committed in vast variety of circumstances.  There is not an exhaustive list of the situations which fall within the reach of misconduct in public office.

38.  The magistrate went on to explain his meaning of his couched expression in para 117 of the SOF :

“Misappropriation of valuable public human and technological resources, as a species of misconduct in public office, does not appear to have been considered in previous cases. As observed in paragraph 24 above, there are no limits to the ways in which public powers can be corruptly abused. In the court’s view, there is, in principle, no reason why misappropriation of valuable resources belonging to the public cannot support a charge of misconduct in public office.”

39.  The couching by the magistrate of the all-encompassing phrase of misappropriation of valuable public human and technological resources as a species of misconduct in public office was his manner of conveying the form of misconduct taken as whole. 

40.  The magistrate had considered the element of serious not trivial throughout his SOF. At the very outset of his SOF at paragraph 6 he said: -

“All along, the defendant must have known of her family members’ entitlement to such services. So, did she – a person of good character, a professional of high status, and a public official of responsibility and long-standing – have the criminal intention to commit so serious a crime as misconduct in public office? Or, did her misconduct, given its nature, frequency, and consequence, sound only in a disciplinary action,[26] had she not resigned?”

41.  This ground fails. 

42.  Before I deal with ground 2 I shall deal with grounds 3, 4 and 5. 

Ground 3

43.  The appellant complains that the magistrate erred in finding that the appellant had misrepresented to the laboratories that her family members were members of the Centre and were entitled to the laboratory services. 

44.  It was the appellant’s case that the Test Request Forms were not falsified as they clearly reflected the age of the appellant’s family members who were under 65.

45.  It was not in dispute that the appellant stated the true age of her family members on Test Request Forms from the Centre.  The appellant submits that there were no documents which contained any falsity nor was there any oral evidence that suggested the appellant falsely represented anything. 

46.  The respondent submits that the prosecution never relied upon any falsification of documents or oral falsification by the appellant as is clear from the amended charge at particulars (b) and (c).  The particulars set out that the appellant falsely represented to the staff members of the two laboratories that the clinical specimens in respect of her family members were from persons eligible for clinical specimens testing of the Centre.  The prosecution submits that by sending the test requests from the Centre, the appellant made implied representations that the clinical specimens came from persons eligible (65 years and over) for testing services of the Centre. 

Discussion

47.  The particulars (b) and (c) of the amended charge set out that the appellant falsely represented to the staff members of the laboratories that her family members were persons eligible from the Centre without specifying that it was by documents or orally. 

48.  The magistrate found the misrepresentation was by conduct.  At para 93 of the SOF he said :

“False representations can be made by words, or by conduct, or both. The court finds beyond all reasonable doubt that the defendant has misrepresented to the laboratories that her family members were members of the centre and were entitled to the laboratory services as such, and that she has done so by conduct, namely, by using the request forms belonging to the centre, by causing the staff nurses to process the forms, resulting in the forms and specimens being sent to the laboratories and in the laboratories conducting the tests as per the defendant’s requests.”

49.  As can be seen in the above passage the magistrate did not rely upon the falsification of any documents or oral words spoken by the appellant.  He found that the appellant’s conduct of using the Centre’s request forms the appellant misrepresented to the laboratories that her family members were members of the Centre and entitled to the laboratory tests. 

50.  In the preceding paragraph 92 of the SOF the magistrate said under the sub-heading ‘misrepresentation’ that the laboratory technicians do not check the request forms.  He said:

“A responsible officer of the laboratories[27] gives evidence that the laboratories have no role in verifying the details provided in the request forms, and that they would rely on the good judgments of the requesting doctors and would conduct the tests accordingly. The court finds beyond all reasonable doubt that the defendant must be aware of this long-standing practice of the laboratories.”

51.  The responsible officer mentioned by the magistrate is PW3 Dr. Janice Lo, she was the Head of Public Health Laboratory Services Branch (“PHLSB”). Her evidence[28] was that she did not know there was a membership programme for the Centre.  She also did not know that to be eligible to apply to be a member of the Centre that person’s age must be 65 or above.  The questions of and answers of PW3 that followed were[29]:

“Q.  …Is it the duty or the responsibility of the laboratory to make sure that the provider of this specimen is an eligible person for the service of the Department of Health? Is that the duty of the laboratory?

A.  I would not say so, no.

Q.  Could you explain that, please?

A.  We serve designated units, like Department of Health, Hospital Authority, so -- and, also, we receive testing is only as requested by a registered medical practitioner so the doctor will make the judgement to determine whether any patient needs to have any specimens tested and so we will trust the doctor’s professional judgement sending the test to us to perform the testing.

Q.  So it’s not the responsibility of the laboratory staff to consider whether that person is an eligible for that service; is that what you’re saying?

COURT: It’s very ...

A.  Yes.

COURT: ... difficult to understand what you mean by “eligible” from this doctor’s point of view, you see. The doctor interpreted your question quite fairly that they would only act on the doctor’s request and trusting the doctors having made the correct judgement as to whether the tests were needed and it has nothing to do with eligibility whatsoever. The doctor has already explained they serve the two governmental agencies plus private requests by private doctors.”

52.  It is apparent from the evidence of Dr Janice Lo and as the magistrate found the laboratory staff have no role in verifying the details provided in the requests form[30]. Hence they do not consider any aspects of eligibility of the tests and there was no duty nor was it the responsibility of the laboratory staff to consider if persons were eligible.  The laboratory staff relied on the doctor’s professional judgment as to whether the patient needed any of the specimen tests of which tests were carried out accordingly. 

53.  The magistrate accepted the appellant had stated the true age of her family members on the request forms and found the staff of the laboratories played no role in verifying the details provided in the request forms.

54.  Quite simply whatever was submitted to the laboratories from the doctors they trusted the doctor that the tests were needed and conducted them.  They relied on the doctor’s professional judgment. 

55.  The magistrate found beyond a reasonable doubt that the appellant as the officer in charge of the Centre since 1999 was aware of this long- standing practice[31]. By sending the test request forms and the clinical specimens from the Centre to the laboratories for testing the appellant made implied representations that the clinical specimens came from persons eligible for the testing services.  Thus by her conduct she falsely represented to the laboratory staff her family members were persons eligible for testing from the Centre. 

56.  Ground 3 fails.

Ground 4 – The magistrate erred in finding the appellant’s acts were dishonest

57.  The appellant complains that the magistrate erred in finding that the appellant’s acts “were clearly dishonest[32]”  It is submitted by the appellant that she never hid the fact of her family members going to the Centre and she declared the correct ages of her family members on the request forms. Further in her answer to the Questionnaire the appellant said that it had never occurred to her that it was improper for the clinical specimens of her family members to be tested.  The appellant contends that the appellant was not dishonest on either the objective or subjective prong of the Ghosh test.

Discussion

58.  The fact that the appellant never hid the fact that her family members went to the Centre and she correctly declared on the request form their true ages is not supportive of the fact that she was not dishonest. The fact that one openly breaches a rule or law is not evidence that one is not dishonest.  Mr Man’s example was this. A robbery committed in broad daylight in public does not mean there is no dishonesty in it.  The stealing by itself manifests the dishonesty.  My example would be this if a cashier at a supermarket openly steals money from the cash till in front of her observing colleagues her appropriation of the money does not make it an honest one. 

59.  What the appellant did was a blatant and brazen disregard to the purposes and objectives of the Centre.  Her indifference to its objectives does not transform what is clearly dishonest to honest. 

60.  Under the sub-heading of dishonesty the magistrate stated at para 94 to 97 and 100 the following :

“94. The court would for the time being leave aside the issue whether dishonesty must be proved as an element of offence as the defence contends. Assuming that it must be, the court finds, on the basis of the entirety of evidence, that the defendant’s acts were clearly dishonest. The reasons are as follows.

95. The staff nurses at the centre were under the defendant’s supervision in terms of clinical procedures and services and must comply with her instructions on those matters: the nurses say as much, though not in so many words in evidence. In the court’s view, if the nurses fail to carry out the defendant’s instructions on clinical procedures and on medical matters, there could be serious consequences to the members.

96. The defendant must have known that the nurses would follow her instructions on clinical and medical matters without demur, even when the clinical specimens had originated not from the members but the defendant’s family members. The court finds that it was a dishonest act on the defendant’s part to cause the nurses to deal with requests for clinical tests for the benefit of the defendant’s family members as if the tests had been requested for the benefit of members of the centre.

97. By falsely misrepresenting by conduct that her family members were entitled to the laboratory services, the defendant has, for her family members’ benefit, obtained professional analyses on their clinical specimens. The court finds beyond all reasonable doubt that the defendant’s wrongful exercises of her powers and discretions in the manner stipulated in paragraphs 92 to 96 above were dishonest according to ordinary standards of a reasonable and honest person (the first limb in Ghosh’s test). But did the defendant herself realise that her acts were dishonest by those standards (the second limb in Ghosh’s test)?

………

100. As a result, despite her clear record and positive good character, in light of all the evidence and of the factors considered in paragraph 99 above, the court is not prepared to attach any weight at all on the exculpatory part of the defendant’s answer to the Questionnaire, and finds beyond all reasonable doubt that the defendant herself must have known that her acts were dishonest by the ordinary standards of a reasonable and honest person (the second limb in Ghosh’s test).”

61.  For the sake of completeness the magistrate said the following at para 92 and 93 of the SOF:-

“92.  A responsible officer of the laboratories[33] gives evidence that the laboratories have no role in verifying the details provided in the request forms, and that they would rely on the good judgments of the requesting doctors and would conduct the tests accordingly. The court finds beyond all reasonable doubt that the defendant must be aware of this long-standing practice of the laboratories.

93.  False representations can be made by words, or by conduct, or both.  The court finds beyond all reasonable doubt that the defendant has misrepresented to the laboratories that her family members were members of the centre and were entitled to the laboratory services as such, and that she has done so by conduct, namely, by using the request forms belonging to the centre, by causing the staff nurses to process the forms, resulting in the forms and specimens being sent to the laboratories and in the laboratories conducting the tests as per the defendant’s requests.”

62.  The magistrate was entitled to find the appellant to be dishonest.  The appellant’s requests for the clinical tests for her family members was with a view to advancing her personal gain.  She misrepresented to the laboratories that her family were members of the Centre and made use of the nurses’ compliance to their work and in following her instructions in dealing with the clinical specimens.  The appellant herself must have known that her acts were dishonest by the ordinary standards of a reasonable and honest person. 

63.  Ground 4 fails.

Ground 2 –Serious not trivial - The magistrate erred in finding that the appellant’s misconduct was sufficiently serious to be a criminal offence.

64.  The appellant complains that even if the magistrate had considered the element of “serious not trivial” he erred in finding that the appellant’s misconduct was sufficiently serious to be a criminal offence. 

65.  The appellant submits that the appellant’s misconduct was not sufficiently serious when considering (i) the context in which it happened, (ii) the consequence of the misconduct and (iii) the lack of improper motive of the appellant.

66.  The appellant referred to the magistrate’s express finding that there was no evidence at all on the following matters:

a.  The staff members of the Centre had done more than menial tasks[34];

b.  Members of the Centre had to wait longer than they would otherwise have to[35];

c.  The overall workload of Centre had been noticeably affected[36];

d.  The overall workload at the two laboratories which tested the specimens had been noticeably affected[37];

e.  The issue of costs had in anyway impacted on the question of misconduct[38]; and

f.  The appellant’s misconduct has caused demonstrable loss to the government[39].

g.  The appellant’s family members, upon payment of $45 per visit as out-patient except her daughter who was entitled to similar services free of charge, would have enjoyed the 75 tests “free of charge”[40].

67.  It is the appellant’s contention there was no evidential basis at all to say precisely what valuable public human and technological resources were misappropriated.

Context

68.  The appellant submitted that the “context”, i.e. the appellant’s position as the doctor of the Centre providing medical consultation and making requests for specimen tests by exercising her professional judgment as a doctor must be considered in determining the issue of seriousness.  It was contended that the appellant was not involved in any policy making and utilisation of public funds in the DH.  There was no evidence that her conduct had any effect on the integrity of the system and the public at large and the magistrate had found that there was no demonstrable loss to the public revenue, nor was any public service affected by what she did.

69.  It was the appellant’s submissions that the appellant was acting within her legal power and authority in committing the alleged misconduct.  Mr Cheng SC appearing with Mr Paul Leung, Mr Quinson Leung and Mr Dixon Tse for the appellant likened her case to that of the Canadian case in Quebec, R v Boulanger [2006] 2 RCS 49 which espoused her misconduct was an error of judgment. 

70.  Mr Cheng further relied on Macrae JA (as Macrae VP then was) in HKSAR v Tsang Yam Kuen, Donald [2018] HKCA 425 when he explained the importance of context by referring to Boulanger.  He remarked that “not all misconduct by a public official is necessarily “an abuse…of the power and duty entrusted to him for the public benefit or of his official position” (at paragraph 129)

71.  Mr Cheng also referred to Ho Hung Kwan Michael v HKSAR (2013) 16 HKCFAR 525 where the Court of Final Appeal considered the context in the public medical system.  Mr Cheng submitted that the appellant’s apparent breach of circulars and guidelines cannot be said to have seriously tarnished the integrity of the system of out-patient service at the Centre simply because “valuable human and technological resources were used.”

Consequence

72.  As to the consequences Mr Cheng re-iterated that the magistrate made the express findings that there is no evidence whatsoever of any demonstrable loss to the Government revenue or the effect on the services to the elderly in the Centre or the workload of the laboratories. 

Improper motive

73.  Mr Cheng contends there was no improper motive.  He submitted that in a case of misfeasance of duty, given that it was within the appellant’s lawful power and authority to order tests the prosecution did not prove by evidence or inference the appellant was acting with an improper motive.  Their submission was the appellant did not possess any improper motive or dishonesty as discussed above. 

Discussion

74.  When discussing the offence of misconduct in public office, in Shum Kwok Sher v HKSAR, Sir Anthony Mason NPJ observed (at [69]) quoting the words of PD Finn: ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p.315:

“The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.”

“It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.”

75.  In HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264 at paragraph 84 the Court of Final Appeal set out acts which have been held to constitute the offence of misconduct in public office.  Further at paragraph 86 the CFA said :

‘86. That, as noted at [47] above, the essence of the offence is the abuse of public trust by the officer is also amply supported by the authorities cited by Ribeiro PJ in his judgment in HKSAR v Wong Lin Kay[41] at [26]–[33]. And as Chan ACJ put it, in HKSAR v Ho Hung Kwan Michael “this offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position”.[42]

87. 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”.[43]’

76.  The magistrate gave detailed consideration as to context.  He specifically referred to[44] the question posed by Sir Anthony Mason in Shum Kwok Sher at paragraph 86 as to how serious the misconduct must be:

“Whether it is serious misconduct in this context 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.”

77.  At paragraphs 86-89 of the SOF,[45] the magistrate properly identified the power, duty and discretions of the appellant’s office. In particular, the Magistrate said:

‘86.  … The defendant's official powers, duties, and discretions entrusted to her as the medical officer cum officer-in-charge of the centre must be taken into account, against the Commission's allegations of misconduct.

87.  The evidence shows, and this is not disputed, that the health centre was established to provide medical and health services to the elderly. The defendant, as the only doctor there, represented the only source of professional services to all members of the centre; and her official duties were to provide such services there. True it is that she has merely worked for the centre, but the centre would not have existed but for her work. She was the heart and soul of the centre, in fact, the raison d'etre of it, for a health centre without a doctor is not a health centre.’

78.  At paragraph 112 of the SOF he said:

“…. the core duty of the defendant here was to provide medical and health services to the elderly. She abused her powers and discretions for personal purpose, which was clearly contrary to the public object pursued by the Department of Health.”

79.  The magistrate at paragraph 40 of his SOF considered that a breach of duty or of trust is not enough he referred to the case of R v Chapman and ors [2015] 2 Cr App R 10.  He said: -

“The court held that the jury must be specifically directed that a breach of duty or of trust is not enough.[46] They must be told that the threshold of seriousness is that the misconduct must amount to “an abuse of the public’s trust in the office holder, … to [the] level … where it is calculated to injure, that is to say has the effect of injuring, the public interest so as to call for condemnation and punishment.”[47]

80.  The magistrate said at paragraph 110 of SOF that the defence submits rightly that “context” is everything.  He went on to consider the cases of Boulanger’s case,[48] Wong Lin Kay’s case,[49] and HKSAR v Ho Hung Kwan Michael[50].  He correctly distinguished the above cases.  In this case contrary to that of Boulanger, the appellant had no legal power and authority to arrange clinical specimen tests for her family members.

81.  It is clear that the magistrate considered the context of the appellant’s impugned conduct. 

82.  In the present case the appellant as the sole doctor collected the clinical specimen’s at the Centre’s premises, she used its request forms to request for testing of the specimens and reports from the laboratories dishonestly for her family members at the Centre who were not entitled to the services and at no cost.  The forms were processed by the staff at the Centre.

83.  The magistrate pointed out that the appellant’s role was to provide medical and health services to the elderly members of the Centre and not to her family members who were not entitled to the services.  Her family who were not elderly benefited from the specimen testing.  They were accorded preferential treatment as they had a connection to the appellant.  The appellant had used her official position in her public office in such a manner that caused the nurses at the Centre to do menial work to benefit her family members.  The nurses were not required to do the work for her family members as they were not members of the Centre. 

84.  The appellant did not carry out her duties in an impartial manner.  As the sole doctor she was expected to exercise her powers and discretions to carry these duties in an impartial manner.  This was a blatant and serious abuse of the official position conferred on her for the public benefit.  She substantially departed from her responsibilities as the sole doctor and officer in charge of the Centre.  Her conduct adversely impacted the integrity of the public health services system and public confidence in the impartiality of the system. 

85.  What the appellant did was a serious breach of her duties and deviated from the public objects which she was required to serve.  Her family members benefited by the appellant providing assistance to them so that they enjoyed an unfair advantage. 

86.  It is apparent that the appellant breached various government guidelines.  Various government and departmental circulars setting out the policies and guidelines on avoidance of conflict of interest and misuse of official position were made the subjects of admitted facts.[51] A central theme of these policies and guidelines is prohibition of officers to use their official position to further their private interests, or to accord preferential treatment to persons with whom they have connections.  Officers should not use or permit the use of their government position or title or authority associated with their public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit to himself or his relations, friends or associates.  Officers should not ask or direct any subordinate to perform any act or to provide service other than those legitimately required in the performance of official duties.[52]

87.  By requesting for the laboratory tests at the Centre the appellant was blatantly abusing her powers, duties and discretions exercisable by virtue of her official position as the sole doctor and officer in charge of the Centre and substantially departed from her responsibilities.  Her conduct was far below acceptable standards as to amount to an abuse of the public’s trust in her office.  The conduct of the appellant adversely affected the integrity of the public health system and the public confidence in the impartiality of public administration. 

88.  The integrity of the system of out-patient service at the Centre would be seriously tarnished by what the appellant had done.

Consequence and Improper motive

89.  As can be seen below Chan PJ said in HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525, where corruption, dishonesty or other illegal practices are involved it is not necessary to specifically consider the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct of public office.

90.  The magistrate properly considered the consequence of her conduct.  At paragraph 114 and 115 of SOF he was well aware that the appellant’s misconduct caused little or no demonstrable loss to the government and her family members were entitled to alternative public medical services at little or her daughter at no cost.  He relied on Boulanger and correctly stated that the fact the government has suffered no loss does not necessarily mean that the offence is not made out.  He took into account her method in requesting for the tests for her family from the Centre and the fact that she had engaged in a dishonest exercise of her powers and discretions. 

91.  Although there was no evidence of any demonstrable loss to the Government or revenue or the effect of the services on the elderly at the Centre or the laboratories the appellant had engaged in a dishonest exercise of her powers and discretions. 

92.  In Ho Hung Kwan Michael above Chan PJ said this about the element of seriousness as regards the consequences of the abuse of office, the motive of the accused, and the integrity of the system:

“29.  In cases where corruption, dishonesty or other illegal practices are involved, it is not necessary to specifically consider the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct in public office. The misconduct speaks for itself: the seriousness of the consequences of such corrupt, dishonest or illegal practices will be obvious.

…

32.  One must consider all the circumstances of the case including the factors mentioned above. It would be wrong simply to conclude that if the misconduct in question is not trivial, then it must be serious enough to merit criminal sanction. It is a high threshold for the prosecution. As Pill LJ said in Re A-G’s Reference (No.3 of 2003) [56]:

‘It supports the view expressed in the criminal cases, from R v Borrow 3 B & Ald 432 to Shum Kwok Sher v HKSAR 5 HKCFAR 381 that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct.’

…

39.  The integrity of the system and the public confidence in such a system are clearly relevant matters for consideration in deciding whether the conduct of a public officer is so serious as to amount to the offence of misconduct in public office. But these matters must be considered in context and together with other relevant factors.”

93.  At paragraph 40 HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 at 848 Yeung JA (as he then was) had the following to say about the motive of the accused :

“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 interest, 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.

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. …

49.  ... the abovementioned case of Re A-G'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.” (emphasis added)

94.  The magistrate discussed the issue of motive at paragraphs 105 and 106 of the SOF and came to the conclusion that the defendant had a secondary improper motive.  He said at paragraph 106:

“On the basis of the evidence, the court finds beyond all reasonable doubt that the defendant has had a secondary improper motive, namely, to dishonestly obtain laboratory reports of diagnostic significance for the benefit of her family members.”

95.  In this case the appellant by her conduct had clearly been partial to her family members.  The family members were not eligible for the services at the Centre including medical consultation and specimen testing.  She had effectively treated the laboratories as her own.  What the appellant did was a selfish improper motive to intentionally benefit her relatives so that they would enjoy an unfair advantage.  Further as the magistrate found the appellant’s act involved a dishonest practice the seriousness of the misconduct spoke for itself.

96.  This was not a mistake as was submitted by the appellant.  This was a serious breach of her duties which deviated from the public objects she was required to serve.  This was serious misconduct.

97.  The magistrate was entitled to find that the appellant’s conduct to be serious and not trivial. 

98.  Ground 2 fails. 

Conclusion

99.  The magistrate gave detailed and careful consideration to the evidence and the application of the law.  It is apparent from the thoroughness of his SOF that the magistrate was alive to all the important issues in the case. 

100.  The seriousness of the misconduct spoke for itself as the magistrate found that the appellant’s acts involved a clear dishonest practice.  The appellant had abused her position as the sole doctor and officer in charge. There was a manifest departure from her responsibilities.  She provided preferential treatment to her family, to which they were not entitled to.  It gave rise to the perception that the system had not been operated fairly and impartially in that her family members were given preferential treatment.  In doing so, she had used the staff at the Centre to do menial tasks.  Her conduct fell far below acceptable standards as to amount to an abuse of the public trust in her role as sole doctor and officer in charge of the elderly Centre. 

101.  In the present case there was ample evidence before the magistrate supporting the seriousness of the appellant’s conduct.

102.  The magistrate was correct in reaching his conclusion that the appellant had misconducted herself in public office.  I find no merit in the criticisms of the magistrate. 

103.  The conviction is neither unsafe or unsatisfactory.  The appeal against conviction is dismissed. 

Appeal against sentence

104.  The appellant complains that the magistrate failed to show leniency as the appellant was convicted on a novel basis of “misappropriation of valuable public resources and failed to have sufficient regard to the mitigation advanced by the appellant together with her good character, such that the sentence warranted the imposition of a non- custodial sentence. 

105.  The maximum sentence for this offence is 7 years’ imprisonment.  There is no tariff guideline for this offence.  Sentences passed in other cases are often not helpful in considering the proper sentences as the sentence in these cases are fact sensitive. 

106.  The magistrate took into account all the mitigation advanced by Mr Cheng.  The magistrate said at paragraphs 128, 129, 131 and 132 of the reasons for sentence :

“128. The offence, by its nature, is serious because the defendant has been exercising her powers and discretion unchecked. Given the defendant’s position of command at the centre, unless some of the members of her staff would reveal the contravention, her misconduct might have gone unnoticed.

129. The offence has taken place over a period of 12 years, involving 67 occasions in which a total of 75 requests to the two laboratory had been made. There is no evidence concerning a quantified loss to the government having been presented at the trial, and the defendant was convicted on the basis of misappropriation of valuable public human and technological resources.

131. However, the defendant’s misconduct is of a very serious nature, as it was committed a period of 12 years, and her breach of the public trust is also of a serious kind.

132.  In all the circumstances, this court is of the view that a prison term is called for, but the court agrees with Mr Cheng Huan SC that it can be suspended.  Whilst it is difficult to quantify the loss to the government, the court is of the view that on top of a suspended sentence, a payment of fine would also be called for.  The court rules that a suspended sentence coupled with a fine is needed to adequately reflect the criminality of the offence.”

107.  The appellant wrongs were using the staff of the Centre, falsely representing to the staff of the laboratories that her family members were persons eligible and obtaining test reports.  She was abusing her position and obtaining benefits for her family members over a long period of time.  The appellant was well aware that her family members were not entitled to any of the testing by the laboratories through the Centre.  Her conduct was not a mistake or error of judgment.  Her conduct breached the relevant rules and regulations concerning conflict of interests and abuse of official position.

108.  As the magistrate found the appellant to have been dishonest in her conduct he was entitled to take a serious view of the appellant’s misconduct and impose the sentence he did. 

109.  The sentence passed by the magistrate is neither wrong in principle or manifestly excessive. 

110.  The appeal against sentence is dismissed. 

Postscript

111.  It is regretful that the handing down of this judgment has been delayed in view of the General Adjournment Period necessitated as a result of the Corona Virus or Covid-19.