HKSAR v. SO PING CHI

CACC 186/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 186 OF 2016

(ON APPEAL FROM DCCC 338 OF 2015)

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REASONS FOR DECISION

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1.  The applicant was charged with one charge of “Misconduct in public office”, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221.

2.  He was tried before District Judge Douglas Yau (“the judge”) and on 7 June 2016 was convicted of this charge.  On 21 June 2016 he was sentenced by the judge to a period of 16 months imprisonment. 

3.  He subsequently applied for leave to appeal against both his conviction and his sentence but as yet no date has been fixed for the hearing of these appeals.  He now applies for bail pending appeal.

4.  At the hearing of his application for bail I granted the applicant bail and said I would hand down my reasons for doing so at a later date.  This I now do.

The charge

5.  The Particulars of the Offence alleged that between 16 April 2007 and a day on or about 4 March 2013, the applicant, being a public officer in the Marine Department of the Hong Kong Special Administrative Region, whose duties and responsibilities included the enforcement of requirements in relation to the provision of life-saving appliances required by the Merchant Shipping (Local Vessels) (Safety and Survey) Regulations (Cap 548G), in the course of or in relation to that public duty wilfully misconducted himself by:

“(a) instructing his subordinates not to enforce the provisions contained in Section 32(2)(b) and Parts 1 and 2 of Schedule 3 of the Merchant Shipping (Local Vessels) (Safety and Survey) Regulations Cap 548G relating to the requirement that children’s lifejackets, in respect of vessels first licensed before the 2^nd day of January, 2007, be kept on board that vessel whenever such vessel is being used or operated; and

(b) further by failing at any stage thereafter to rescind the said instruction, which amounted to serious misconduct and which misconduct was without reasonable excuse or justification.”

The prosecution case

6.  The prosecution case was quite straight forward.  It was that the applicant was employed as a person in charge of a Branch of the Marine Department within which was located the particular section responsible for enforcement of the legislation particularised in the charge.  The position occupied by the applicant was Principal Surveyor of Ships / General Manager of the “Local Vessel Safety Branch” (“LVSB”) and he was in this post between 16 April 2007 and 12 August 2010. 

7.  This legislation was new legislation which came into force on 2 January 2007 and so the applicant’s tenure as General Manager of LVSB commenced, some 3 months after the new legislation had come into force.  The legislation required vessels which were subject to it to increase the number of lifejackets that they carried on board.  Under the old law a vessel had to carry lifejackets for 40% of the maximum number of passengers it was licensed to transport.  For the remaining 60% of passengers the vessel could have other lifesaving appliances, such as life rafts and buoys.  Under the new law there is a specific requirement for “100” adult lifejacket + 50% children lifejackets.”

8.  Under the old law there is still had to be sufficient lifesaving equipment for 100% of the passengers but some of the equipment, namely life buoys, was lifesaving equipment which was allowed to be shared by two persons.  The new law appears to have been intended to ensure that every passenger on a vessel had their own individual lifejacket.  This prompted one of the witnesses to testify that “there is little difference between the old and new laws.  Both required 100%, just that the combination is different.”

9.  The requirements of this new legislation raised concerns with members of industry organisations[1] who had discussions with the Marine Department.  The General Manager of LVSB who participated in these discussions was not the applicant.  The primary concern appears to have been with the financial implications of the new legislation as the replacement of existing life-saving equipment with new and additional compliant lifejackets could, for some operators of vessels, be an expensive exercise.  The legislation contained within it a grace period of 12 months to enable those subject to it to have time to make their vessels compliant with its requirements. 

10.  In response to the financial concerns expressed by the industry associations the applicant’s predecessor in the post of General Manager of LVSB developed a policy which was described by the witnesses as “old vessels follow old law, new vessels follow new law”.  This policy involved applying the requirements of the new legislation only to those ships receiving their first certification after the coming into force of the legislation and not against vessels who already had a certification as at the time the new legislation came into force.

11.  The purpose of this policy appears to have been to ease the financial burden on operators within the industry by allowing them a longer grace time in which to gradually phase in their compliance with the legislation through the purchase of new lifejackets as their existing life-saving equipment wore out and/or required replacement. 

12.  On assuming his position as General Manager of LVSB the applicant gave an instruction to continue with this already adopted policy. PW1 testified on how the existing policy came to be continued once the applicant assumed the post of General Manager of LVSB.  His evidence was summarised by the judge as follows:

“Mr Au Yeung confirmed that the ‘old vessels follow old law, new vessels follow new law’ policy was decided under Lee Kwok Fai Michael. When the defendant came to be the General Manager, the matter just carried on as before and the defendant did not say that this practice had to be stopped. The matter was not even raised, it just carried on as an existing policy.”

13.  PW1 went on to testify that when the grace period expired on 2 January 2008 the non-enforcement policy continued but that:

“There was however no specific person who said that it would be carried out, nor did anyone say that it would not be carried out.”

14.  The effect of PW1’s evidence is that there was a passive acceptance both in April 2007 and January 2008 that the policy would continue.  He could not point to any active step by the applicant to positively adopt the policy and to direct that its implementation be continued.

15.  However, there was evidence of what was said by the applicant at a meeting that took place on 6 March 2013.  This was just one of regular Monday morning meetings attended by the applicant and other senior officers of the Marine Department.  At this particular meeting the issue of enforcing the lifejacket requirement arose and the question of who gave the non-enforcement instruction was asked.  The applicant answered that it was he. He was asked if he had sought legal advice from the Department of Justice before making the decision to issue this instruction and he replied that he had not. The notes of this meeting recorded a summary of his explanation for issuing the instruction which was as follows:

“He said that at that time the trade faced economic downtown and had raised difficulties in running the business and showed reluctant (sic) to buy ‘additional’ lifejackets.”

16.  The policy remained as the policy of the LVSB throughout the period of the applicant’s tenure as its General Manager and even subsequent to his departure from this post when other officers of the Marine Department who were appointed General Manager of LVSB continued to apply the policy. 

17.  The policy continued in force up to the time when there was a collision of two vessels in Hong Kong waters on 1 October 2012 in what has become known as the Lamma IV tragedy.  A Commission of Inquiry was subsequently set up to look into the collision and it was only then that senior officers of the Marine Department became aware of the existence of the policy and rescinded it.

18.  Notwithstanding that the applicant was not the author of the policy and did not initiate the adoption of it as departmental policy, and notwithstanding that at least two General Managers who succeeded him allowed the policy to continue in force, the applicant was the only person prosecuted for misconduct in public office in respect of it. 

19.  The culpability of the applicant was said to lie in his conduct in unilaterally deciding not to enforce lawfully enacted legislation.  In the prosecution opening Mr Andrew Bruce SC, who appeared for the respondent both at trial and on this application, set out the reasons why the prosecution said the misconduct was sufficiently serious to warrant the sanction of the criminal law.  He said:

“It is the Prosecution’s case that the issuance of such instructions (and the failure to rescind such instruction thereafter) was sufficiently serious because it amounted to a direction to his subordinates to act in defiance of, and actively ignore, certain safety requirements which were specifically prescribed by safety legislation.”

20.  Under the same heading of “Sufficiently Serious” Mr Bruce emphasized that:

“It is obvious that the issuance of instructions encouraging partial or flexible enforcement is unlawful and strictly impermissible.”

21.  Finally, he relied on the fact that there was no temporal limitation on the instruction.  The non-enforcement instruction was open‑ended.

The defence case

22.  The applicant did not give evidence in his defence and did not call any witnesses. 

The judge’s Reasons for Verdict 

23.  After setting out the elements of the offence as laid down in the judgment of the Court of Final Appeal in Sin Kam Wah and Anor v HKSAR[2] the judge said that, in terms of those elements, there were three issues that needed to be addressed which he described as:

“The issues are therefore whether the prosecution can prove beyond reasonable doubt that (1) the issuance of the non‑enforcement instruction amounted to ‘wilful misconduct’; (2) the misconduct was serious misconduct; and (3) there was no reasonable excuse or justification for the misconduct.”

24.  However, before dealing with these issues he had to firstly decide whether the prosecution had proven beyond reasonable doubt that the applicant had in fact adopted the unlawful policy and issued an instruction for its continued implementation.

25.  After considering the evidence the judge found that the applicant did, in fact, issue an instruction to his subordinates in April 2007 not to enforce the new lifejacket requirements in relation to local vessels which already held a valid Certificate of Survey.  He said:

“I find that although the exact time of the issuance of the non-enforcement instruction is unclear, based on the evidence of the prosecution witnesses, it can be inferred that the instruction was issued by the defendant after he had taken up his position in April and that the practice of ‘old vessels follow old law, new vessels follow new law’ had carried on up to the defendant’s departure from the LVSS.”

26.  As to why the applicant gave this instruction the judge said that could only be determined by inference.  He then made this finding:

“I find that based on the evidence available, the inferred reason as to why the defendant issued the non-enforcement instruction is he wanted to appease the industry representatives who were not happy with the new lifejacket requirements.”

27.  The judge then went on to consider whether the applicant’s conduct was wilful.  He found that on assuming office the applicant had the power to end the practice that had been implemented by his predecessor but that he deliberately chose not to do so.  He found that the applicant’s decision to instruct his subordinates to not enforce the new law on lifejacket requirements constituted misconduct.  Because his decision was a considered and deliberate decision the misconduct was wilful.  Likewise, he found the applicant’s continuing failure to rescind the non-enforcement instruction over the course of his tenure as General Manager of the LVSB was also wilful misconduct. 

28.  The judge then analysed the issue of whether the misconduct of the applicant was so serious as to as to warrant criminal sanction.  He directed himself in accordance with various decisions of the Court of Final Appeal on this offence.  From these authorities he derived the principle that it was not necessary for the prosecution to prove the motive of the public officer in misconducting himself; nor was it necessary that in order for the misconduct to be serious the public officer had to have been motivated by an intention to abuse his public office for personal gain. 

29.  In determining the issue of seriousness the judge took the following matters into account:

(1)   the applicant issued an instruction which directly contradicted the legal requirements under the new law;

(2)   in doing so, he imposed no time frame on ship owners or operators for complying with the new law – their dispensation from compliance with the new law was open-ended;

(3)   it can be inferred that the enactment of the old law was done for the purpose of improving the safety of passengers travelling on local vessels;

(4)   the existence of the grace period within the legislation allowed the inference that compliance with the legislation was not seen as being urgent, but nevertheless it is not for public officers to decide whether a lack of urgency in the matter enables them to choose not to enforce the legislation;

(5)   the applicant’s departure from his duty was not negligence but amounted to an affront to the standing of the public office held;

(6)   the seriousness of the applicant’s misconduct was in his decision to disregard the will of the legislature and replace it with his own;

(7)   there was no evidence to suggest that the applicant harboured any dishonest, corrupt or malicious motives in implementing this policy; and

(8)   the applicant’s instruction was a blanket one covering all local vessels licensed prior to the enactment of the new law.  From this it could be inferred that the vessels affected must be numerous, given that by definition local vessels included ferries, multi-purpose vessels and stationary vessels. 

30.  Having taken into consideration all these matters the judge found that the applicant’s misconduct was sufficiently serious to warrant criminal sanction. 

31.  Finally, the judge turned to the issue whether or not the applicant’s misconduct could be reasonably excused.  The prosecution had conceded, and the judge accepted, that the defence had satisfied the evidential burden required for the raising of the defence.  The judge said that the excuse put forward was that the issue of the non-enforcement instruction was necessary for the smooth implementation of the new legislation, in particular the new lifejacket requirements.  The judge said of this excuse:

“When stripped down, I found that the reason behind the defendant’s issuance of the non-enforcement instruction was to appease the industry representatives. I find that this is the excuse that the prosecution had to prove unreasonable.”

32.  In considering whether the applicant had shown that the reason for his misconduct was reasonable the judge took into account that he must have been aware that he had no statutory power to exempt vessels from compliance with the new law.  Further the evidence showed that the applicant had never raised with his immediate superior the implementation of his policy nor did he ever obtain legal advice before deciding to issue his instruction to carry out this policy of “old vessels follow old law, new vessels follow new law”.  The judge then concluded:

“ I find that it was not for the defendant to second guess the intentions of the legislature. It was not for the defendant to decide which law should or should not be enforced. It was not for the defendant to choose appeasement over enforcement.

I find that taking into consideration the importance of lifesaving equipment requirements and the 12-month deferment period already given to the industry to comply with the new legal requirements, the appeasement of the industry is not a reasonable excuse for the defendant to decide to issue the non-enforcement instruction to his subordinates, nor is it a reasonable excuse for his failure to rescind the instruction at any time thereafter.”

33.  The judge then convicted the applicant as charged. 

The mitigaton

34.  In mitigation, the applicant’s counsel, Mr D Marash SC, who appeared both at trial and on this application for bail, informed the judge of the applicant’s family background and personal circumstances and also went into some details in respect of his career and professional standing. 

35.  The applicant had achieved considerable success in his career and had received glowing annual reports over the course of his time in the Marine Department.  He had involved himself in charitable work and this, Mr Marash claimed, entitled him to be regarded as a person possessing positive good character. 

36.  Mr Marash portrayed him as a highly professional and successful career civil servant who was trying his best to serve the public in the course of carrying out his public duties and who now, as a consequence of his conduct, faced the possibility that he could lose part or all of his pension.

37.  Mr Marash emphasised that there was no improper motive involved in the adoption and implementation of this policy.  Furthermore, the policy had been initiated by the applicant’s predecessor and carried on by his successors, all of whom escaped punishment for the same misconduct.  He emphasised that one of the reasons the applicant was the person being prosecuted was because he had the courage and the integrity to admit that he had given the instruction that lead to the adoption of this policy during his tenure as General Manager of LVSB.  He urged the judge to regard the circumstances of the applicant’s case as being exceptional. 

38.  Mr Marash submitted that the judge was unlikely to receive any assistance from the sentencing cases handed up by the prosecution as none of them involved circumstances similar to those of this applicant.  They invariably involved impropriety of one kind or another such as dishonesty or corruption. 

The judge’s Reasons for Sentence

39.  The judge made it clear that he was not taking into account any safety issues that might flow from the adoption of this policy.  He said that the actual consequences of the applicant’s non-enforcement instruction were never an issue in the trial.  Nor was any evidence led to link the applicant’s adoption of this policy and its implementation by his subordinates to the loss of life that occurred in the Lamma IV tragedy.

40.  He made it clear that:

“The defendant is only being sentenced for the misconduct of instructing his subordinates to not follow the law as to lifejacket requirements in relation to local vessels.”

41.  He then said that he would take into account in arriving at his sentence the following mitigating factors:

“In arriving at the sentence, I have taken into account the following mitigating factors: the defendant’s devotion to his work and his family; his fundraising charity work; the risk of him losing his pension; and the fall from grace of being convicted of a criminal offence.”

42.  He went on to consider the nature of the sentence that was appropriate for the applicant’s level of misconduct.  He decided that the misconduct was so serious that he had no choice but to impose an immediate custodial sentence.  He came to this conclusion for the following reasons:

(1)   the misconduct of the applicant lasted throughout his tenure as the General Manager and Principal Surveyor of Ships. This was a long period of 3 years and 4 months;

(2)   the fact that the practice was already in place when the applicant arrived at the LVSB was not a mitigating factor since he was in a position and had the opportunity and power to decide whether to continue with that practice or not;

(3)   as the misconduct related to the installation of lifejackets on local vessels.  The consequences of his decision not to enforce strict compliance with the legislation were potentially very serious;

(4)   the misconduct would have caused reputational damage to the Hong Kong civil service and eroded the public trust in the Marine Department;

(5)   the seriousness of the applicant’s misconduct lay in his deliberate decision to supplant the will of the legislature with his own.

43.  The judge then concluded:

“Given the seriousness of the potential consequences of the defendant's misconduct and the impact it has on public confidence, I find that an immediate custodial sentence is necessary.”

44.  Having decided that an immediate custodial sentence was necessary it then became necessary for the judge to assess the appropriate length of that sentence.  On this issue the judge said only this:

“Taking into account all the circumstances of the case, and bearing in mind the sentences imposed in the various cases referred to above, I will adopt a starting point of 18 months’ imprisonment. For the various mitigating factors, I will reduce this sentence by 2 months. Since the defendant is convicted after trial, there is no discount based on a guilty plea.”

The grounds of appeal

45.  There are 8 grounds of appeal against conviction but in his written submission Mr Marash made it clear that for the purpose of the bail application the applicant only relied on his first ground of appeal.  However, in support of that ground of appeal, which is that the judge erred in finding a case to answer, the applicant argued many of the points that underlie grounds 2 – 8 of the Perfected Grounds of Appeal.

46.  In respect of the appeal against sentence there is only one ground of appeal and that is that the sentence imposed by the judge is, in all the circumstances, manifestly excessive.  In support of this ground of appeal Mr Marash submitted that:

“... an immediate custodial sentence was not justified and the appellant should have been sentenced to no more than either a Community Service Order or a suspended sentence. Alternatively, the substitution of a term of imprisonment that would allow for the immediate release of the applicant would suffice.”

47.  Underlying this submission are arguments that the sentence is disproportionate to the circumstances of the offence and the applicant’s culpability.

48.  Mr Marash also asserted that the judge appears not to have had regard to the fact that by law all adult lifejackets are required to fit both adults and children and so even under the old law there would still be lifejackets for children on board a non-compliant vessel.  Mr Marash also referred to the evidence of a Chief Ship Inspector that there was little difference between the life-saving equipment standards under the old law and those under the new law.

49.  In addition to these matters Mr Marash emphasized the fact that it was the applicant’s readiness to admit his role in adopting and implementing this policy that led to his prosecution and that his culpability “was akin to an error of judgment and, if misconduct, at the lowest end of the scale.”

The bail application

50.  In his submission in support of the bail application Mr Marash said that the application was made the basis that:

“(i) the applicant will have substantially served his sentence by the time his appeal is likely to be heard, and (ii) the applicant has reasonably arguable grounds of appeal.”

51.  As the application is made on the time ground as well as the merits ground, Mr Marash submitted that the applicant is only required to demonstrate that his appeal is reasonably arguable.  Mr Marash first made submissions in support of the ground of appeal against sentence.  Having heard both parties on that ground the court found it unnecessary to hear oral submissions on the grounds of appeal against conviction.

The respondent’s submissions

52.  Mr Bruce submitted that as part of the delay in bringing the bail application was attributable to the applicant, he should not be able to enjoy the benefit of the lower arguability threshold that accompanies a time based application.  However, Mr Bruce also accepted that in respect of the argument of the applicant that the sentence should be other than a custodial one or other than an immediate custodial one, the time factor came into play and the applicant only had to satisfy the reasonable arguability test.

53.  In respect of the ground of appeal against sentence Mr Bruce submitted that the applicant and his staff had a critical role in the safety of those on vessels in Hong Kong waters and the judge was entitled to take the view that the consequences of not providing the legislatively mandated lifejackets were potentially very serious.

54.  As to the omission made by the applicant Mr Bruce suggested that it showed “no recognition on the part of the applicant of wrongdoing.”

55.  Mr Bruce argued that, in the circumstances, the judge had no option but to conclude that the only just sentence was one of immediate imprisonment and the length of time on which the judge settled was tailored to the circumstances and was not manifestly excessive.

56.  I raised with Mr Bruce why no prosecution action had been taken against the author of the policy or the successors of the applicant who, like him, continued its application.  He had no information in respect of the author of the policy but he believed that in respect of the applicant’s successors it was a decision based on the sufficiency of the evidence.  However, he submitted that what had happened to the applicant’s predecessor, and successors, was, in any event, irrelevant to the applicant’s culpability and should not impact on the determination of what was a just sentence for him. 

Discussion

57.  In a society governed by laws enacted by a representative legislature and enforced through a civil service it is a serious matter for a civil servant to take it upon himself to decide that certain lawfully enacted provisions shall not be enforced.  The matter becomes more serious when the laws are part of a regulatory regime whose purpose is to enhance the safety of the public.

58.  But it is still necessary to distinguish errors of judgment and poor or incompetent administration from culpable misconduct. In the unusual circumstances of this case, where no corrupt or dishonest motive has been shown, it may be necessary for the Court of Appeal to consider what it is that the prosecution has to prove in respect of the mens rea of the applicant in order to take his actions beyond the level of an error of judgment or incompetent administration into the realm of misconduct. 

59.  For example, in order to prove that the applicant wilfully misconducted himself the prosecution has to prove at the very least that the applicant must have appreciated that in consciously not enforcing validly enacted law he was acting unlawfully.  But does it also have to be shown that in doing so he was aware that:

(i)   he was subordinating his public duty and the public interest to the private interests of those who were subject to this law and against whom it was his duty, as a public officer, to enforce the law; and/or

(ii)   in not enforcing the law he was consciously protecting the financial interests of operators of vessels and intending by that conduct to place the profits of the private operators above the safety of the public travelling on their vessels. 

60.  Because I have not heard argument on these matters.  I will say no more in respect of them.

61.  However, for the purpose of assessing the applicant’s culpability and determining what is a just punishment for it I have assumed that the judge found that the applicant knew full well the consequences of his actions and had an appreciation of the effect and implications of what he was doing and this includes an awareness that he was subordinating the public interest to the profit-based interests of those he had a public duty to regulate.

62.  Nevertheless, there are also present here many factors which mitigate the applicant’s conduct and arguably constitute exceptional circumstances.  Amongst them are:

(i)   the absence of any personal gain;

(ii)   the fact that the applicant was not only not the author of the policy but that other colleagues occupying the same position clearly regarded this policy as a valid and proper means of implementing this legislation – the applicant was not a rogue civil servant; he was in the company of several colleagues;

(iii)   the positive good character of the applicant;

(iv)   the applicant was shown in all other respects to be a dedicated and professional civil servant;

(v)   the applicant never attempted to conceal his involvement with this policy and took full responsibility for his decision to continue with it.

63.  Notwithstanding the stance taken by Mr Bruce in respect of the relevance of the non-prosecution of others I am not persuaded he is correct.  He agreed that there was nothing to distinguish the applicant, morally or legally, from those who succeeded him in his post.  That they have escaped a criminal prosecution and the level of punishment which the applicant has been forced to endure must, it seems to me, as a matter of simple fairness, be a valid consideration to which a sentencing court should have regard.  

64.  In my view it is at least reasonably arguable that a sentence other than a custodial one or other than an immediate custodial one, would have met the justice of this unusual case.  But, even if an immediate custodial sentence is necessary to reflect the seriousness of the offence I am of the view that the applicant has demonstrated that he has a strong prospect of persuading the Court of Appeal that the length of that custodial sentence should be no longer than the time already served.  

Conclusion

65.  For these reasons I granted the applicant bail pending the hearing of his appeal.