HKSAR v. KWOK CHIU KWAN, HENRY AND ANOTHER

DCCC 616/2023

[2025] HKDC 743

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 616 OF 2023

________________________

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REASONS FOR VERDICT

1.  There are 2 Defendants in the present case. D1 is 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 (Charge 1). Both Defendants are jointly charged with one count of “Conspiracy to commit Misconduct in Public Office”, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap 221 (Charge 2).

Issues

2.  There is no dispute that at all material times, D1 was the Principal of Tak Sun School (TSS).  TSS was a government aided boys’ primary school and D1 was in public office.  Diligence Learning Centre Limited (勤舍學習中心有限公司)  (DLC)  conducts business as a tutorial center.  D2 was a director and the majority shareholder of DLC, holding 420,000 shares out of the issued capital of 700,000 shares.

3.  The Prosecution alleged that:

(1)  D1 and D2 had a close personal relationship;

(2)  D2’s share in DLC were in fact purchased by D1 and that D1 had a financial interest in DLC;

(3)  many students from TSS attended tutorial classes at DLC;

(4)  there was a conflict of interest between D1’s financial interest in DLC and his position as the Principal of TSS;

(5)  D1 had misconducted himself in public office by concealing his financial interest in DLC from the Incorporated Management Committee of TSS;

(6)  D1 had divulged confidential information of TSS, namely the examination and quiz questions of TSS to D2 prior to the scheduled dates of the relevant examinations and quizzes of TSS;

(7)  D1 and D2 had conspired together for D1 to misconduct himself in public office.

4.  The issues are:

(1)  whether D1 had a financial interest in DLC;

(2)  the nature of the relationship between D1 and D2;

(3)  whether D1 had a conflict of interest and if so, whether D1 had concealed the same;

(4)  whether D1 had committed misconduct in public office;

(5)  whether D1 had disclosed the examination and quiz questions to D2 prior to the scheduled dates of the relevant examinations and quizzes;

(6)  whether D1 and D2 had conspired for D1 to commit misconduct in public office.

Admitted Facts

5.  Part of the prosecution’s evidence was not in dispute.  The facts admitted under section 65C were set out in writing and produced as P76 and P76A.  The Admitted Facts in P76 are as follows:

Tak Sun School

(1)  At all material times, Tak Sun School（德信學校）（TSS）was a government-aided boys’ primary school situated at No. 103 Austin Road, Kowloon.

(2)  On 1 September 2004, D1 was recruited by TSS as a teacher. On 1 September 2013, D1 was appointed as the Principal of TSS upon the approval of the Permanent Secretary of Education (PSE)  of the Education Bureau (EDB). The employment records of D1 are produced as P1. The certified English translation of P1 is produced as P1A.

(3)  The Incorporated Management Committee (IMC)  of TSS was the top body management of TSS. Since 1 September 2017, Mr Peter Herbert （何炳德）was the Supervisor of TSS and also the Chairman of the IMC of TSS.

(4)  As a government-aided school, over 90% of the operating expenses of TSS were paid by public funds and the release of such payments were subject to the approval of the PSE. TSS was accountable to EDB in respect of its performance in providing education to its students. EDB officers would pay visits to TSS for inspection of documents and records. The EDB would appoint member(s)  of the IMC of TSS in case the performance of TSS is unsatisfactory. The financial accounts of TSS also had to be submitted to the EDB annually. D1 was a public official in his capacity as the Principal of TSS. The Code of Aid for Primary Schools and Code of Aid for Aided Schools are produced as P2 and P3 respectively.

(5)  The relevant extracts of the School Administration Guides of TSS (version 4)  and the relevant extracts of the School Administration Guides of TSS (version 5)  are produced as P4 and P5 respectively. The certified English translation of P4 and P5 are produced as P4A and P5A respectively. The relevant extracts of the School Administration Guide (2021/22 school year)  issued by the EDB setting out the roles of school heads and use of funding of government grants is produced as P6. Appendix 11 of the School Administration Guide issued by the EDB regarding conflict of interests is produced as P7. EDB Circular No 14/2003 on “Acceptance of Advantaged and Donation by Schools and their Staff” dated 28 March 2003 is produced as P8.

(6)  The staff list of TSS setting out all employees of TSS for the school year 2020/2021 is produced as P9. The certified English translation of the staff list is produced as P9A.

Diligence Learning Centre Limited

(7)  On 16 June 2017, DLC was incorporated by D2 and Madam YIM Mei-ho Keely (嚴美好)  (YIM), who were the directors and shareholders of DLC respectively holding 420,000 shares (at par value of HK$420,000)  and 280,000 shares (at par value of HK$280,000)  of the total share capital of 700,000 shares (at par value of HK$700,000). Since 3 July 2017, the address of the registered office of DLC was Room C, 8/F, Ritz Plaza, No 122 Austin Road, Kowloon. On 22 June 2019, it was changed to Units 502-3, Fourseas Building, Nos 208-212 Nathan Road, Kowloon. The company records of DLC kept by the Companies Registry are produced as P10. The business records of DLC kept by the Business Registration Office are produced as P11.

(8)  At all material times, about 20 students of DLC were TSS students.

The Secondary School Places Allocation System

(9)  Eligible Primary 6 students can obtain a subsidized Secondary 1 place through participation in the Secondary School Places Allocation System (SSPAS)  managed by the EDB. SSPAS was divided into two stages, namely Discretionary Places and Central Allocation (CA).

(10)  The allocation of Secondary 1 places through CA was determined in accordance with a student’s allocation band. The allocation band was based on the internal assessment (IA)  results of the student by the school they attended. The relevant results were those at the end of Primary 5 and in two school terms of Primary 6. The assessments covered Chinese Language, English Language, Mathematics, General Studies (the Core Subjects), Music and Visual Arts. The guidelines on IA issued by the EDB together with their English translation are produced respectively as P12 and P12A.

(11)  There were three terms in each school year in TSS. For the purposes of CA, TSS was required to submit the IA results of students in Term 3 of Primary 5 and Terms 1 and 2 of Primary 6 to the EDB.

(12)  The information leaflet on the SSPAS 2019/2020 Cycle, guidelines to parents for Central Allocation of SSPAS issued by the EDB and the Guidelines for Corruption Prevention re Internal Assessments of SSPAS issued by the Corruption Prevention Department of the ICAC are produced respectively as P13, P14 and P15. The certified English translations of P13, P14 and P15 are produced as P13A, P14A and P15A respectively.

The relationship between D1 and D2

(13)  The certified true copies of the Movement Records of D1 and D2 are produced respectively as P16 and P17.

(14)  The mobile number of 9191 8477 and 9346 7714 were subscribed by D1 and D2 respectively. A certificate verifying the computer produced documents (Computer Certificate)  in respect of the subscriber records and phone call records is produced as P18.

(15)  In 7 July 2020, the Personalized Octopus Card of D1 (No 60070698(7)  was registered for D1’s access to D2’s residence at High Park, No 51 Boundary Street, Kowloon. The Computer Certificate in respect of the registered records of the Octopus Cards of D1 and D2 are produced as P19.

Courses for newly appointed school principals attended by D1

(16)  All newly appointed principals of public or aided schools are required to attend a two-year Induction Programme organized by the EDB. Between 2013 and 2015, D1 had attended courses of the Induction Programme for newly appointed school principals. On 4 August 2014, D1 attended a course on the topic “Integrity Management in Schools”. The printout of the course materials used in this course and its English translation are produced respectively as P20 and P20A. The attendance record signed by D1 for attending this course and its English translation are produced respectively as P21 and P21A.

Transfer of funds amongst D1, D2 and DLC

(17)  Madam WONG Ping-kuen (黃聘娟)  (Madam Wong)  is D1’s mother. The certified true copies of the Registration of Persons records of D1 and Madam Wong are produced as P22 and P23 respectively.

(18)  Madam Wong was the subscriber to the mobile number 9466 8859. The Computer Certificate of the subscriber record is produced as P24.

(19)  On 28 June 2017, Madam Wong made 2 deposits respectively in the sum of HK$80,000 and HK$ 90,000 (ie a total of HK$170,000)  into the joint bank account (No 004-127-8-022122)  held by D1 and Madam Wong held at The Hong Kong and Shanghai Banking Corporation Limited (HSBC). On 24 July 2017, a sum of HK$420,000 was transferred from the said joint bank account to D2’s bank account (No 004-170-2-018159)  at HSBC. On 28 July 2017, the said sum of HK$420,000 was further transferred to D2’s bank account (No 620-859207-888)  with HSBC.

(20)  D2 issued two cheques under her HSBC bank account No 620-859207-888 in the sums of HK$200,000 and HK$70,304.20 respectively on 28 August 2017 and 11 September 2017, which were subsequently deposited into DLC’s bank account No 015-523-68-00811-3 with The Bank of East Asia Limited (BEA).

(21)  The Banker’s Affirmation regarding (1)  the joint bank account No 004-127-8-022122 held by D1 and Madam Wong at HSBC, (2)  D2’s bank account No. 004-170-2-018159 with HSBC and (3)  D2’s bank account No 620-859207-888 at HSBC is produced as P25.

(22)  The Banker’s Affirmation regarding DLC’s bank account No 015-523-68-00811 with BEA is produced as P26.

Declaration of Interests Forms submitted by D1

(23)  Between the school years of 2017/2018 and of 2020/2021, D1 submitted four Declarations of Interests Forms to TSS in which he stated that he and his director relatives had no direct or indirect financial interest in any organizations which had official dealings with TSS. The four Declarations of Interests Forms are produced as P27, P28, P29 and P30 respectively. The certified English translations of P27 to P30 are produced respectively as P27A to P30A.

Arrest, Caution and Search in relation to D1

(24)  At 9:11 am on 12 June 2021, D1 was cautioned by Senior Investigator of the ICAC WAN Wing-hung, Davyn (Officer Wan)  at D1’s office in TSS. Under verbal caution, D1 replied that he understood.

(25)  At 9:25 am on 12 June 2021, on the strength of a search warrant and in the presence of D1, Officer Wan conducted a search at D1’s office in TSS, during which D1’s mobile telephone (D1’s mobile telephone)  was seized. D1’s mobile telephone is produced as P31.

(26)  Between 11:17 am and 1:23 pm in 12 June, Officer Wan cautioned D1 and conducted a video-recorded interview with D1. D1 voluntarily participated in the interview which was conducted fairly and properly. The master disc containing the accurate recording of the interview is produced as P32. The transcript of the recording is produced as P32A. The certified English translations of the transcript is produced as P32B.

(27)  At 1:46 pm on 12 June 2021, D1 was arrested by Officer Wan.

(28)  At 10:30 am on 13 June 2021, Senior Investigator of the ICAC PAN Tak-yin conducted a search at D1’s office in TSS, during which D1’s desktop computer (D1’s Desktop Computer)  was seized. D1’s Desktop Computer is produced as P33.

(29)  At 4:45 pm on 13 June 2021, Officer Wan seized a Citibank credit card numbered 4617-2670-0172-0202 cum Octopus card numbered 60070698(7)  (D1’s Octopus Credit Card)  which is produced as P34.

Arrest, Caution and Search in relation to D2

(30)  At 7:32 am on 12 June 2021, D2 was cautioned by Senior Investigator of the ICAC WONG Lo-kam, Hazel (Officer Wong)  at D2’s residence at Flat C, 18/F, High Park, No 51 Boundary Street, Kowloon. Under verbal caution, D2 replied that she understood.

(31)  At 7:34 am on 12 June 2021, on the strength of a search warrant and in the presence of D2, Officer Wong conducted a search at D2’s residence, during which D2’s mobile telephone (D2’s mobile telephone)  was seized. D2’s mobile telephone is produced as P35.

(32)  Between 12:49 pm and 2:41 pm on 12 June 2021, Officer Wong cautioned D2 and conducted a video-recorded interview with D2. D2 voluntarily participated in the interview which was conducted fairly and properly. The master disc containing the accurate recording of the interview is produced as P36. The transcript of the recording is produced as P36A. The certified English translation of the transcript is produced as P36B.

(33)  At 3:07 pm on 12 June 2021, D2 was arrested by Officer Wong.

(34)  Between 2:48 pm and 3:15 pm on 13 June 2021, Officer Wong cautioned D2 and conducted a video-recorded interview with D2. D2 voluntarily participated in the interview which was conducted fairly and properly. The master disc containing the accurate recording of the interview is produced as P38. The transcript of the recording is produced as P38A. The certified English translation of the transcript is produced as P38B.

(35)  At 5:36 pm on 13 June 2021, Officer Wong seized an Octopus card numbered 70637008(6)  (D2’s Octopus Card)  from the personal belongings of D2. D2’s Octopus Card is produced as P39.

Search at the office of DLC

(36)  At 1 pm on 12 June 2021, on the strength of a search warrant and in the presence of YIM, Senior Investigator of the ICAC LAM Tak-hung (Officer Lam)  conducted a search at the office of DLC, during which 1 set of copy draft examination paper of Primary 5 Mathematics of TSS Term 3 for the school year 2020/2021 was seized and is produced as P40. The certified English translation of P40 is produced as P40A. During the search, a desktop computer (DLC’s Desktop Computer)  was also seized. DLC’s Desktop Computer is produced as P41.

(37)  At 5:38 pm on 15 June 2021, on the strength of a search warrant and in the presence of D2, Officer Lam conducted a search at the office of DLC, during which one set of DLC Primary 1 Mathematics exercise, one set of DLC Primary 2 English Language (Reading and Writing)  exercise and six sets of DLC Primary 5 Mathematics exercises were seized. DLC Primary 1 Mathematics exercise is produced as P42. DLC Primary 2 English Language (Reading and Writing)  exercise is produced as P43. Six sets of DLC Primary 5 Mathematics exercises are produced as P44 to P49. The certified English translation of P42, P44 to P49 are produced as P42A, P44A to P49A respectively.

Computer server of TSS

(38)  On 22 July 2021, Information Technology Manager of TSS YEH Chung-yin provided a hard disc containing files saved at the computer server of TSS to the ICAC. The hard disc is produced as P50.

Quiz and examination dates of TSS and the relevant quiz papers and examination papers

(39)  The scheduled quiz dates of TSS of the following subjects in the school year 2019/2020 are set out as follows and the relevant quiz papers are produced as P51 to P61. The certified English translations of P52, P53 and P55 are produced as P52A, P53A and P55A respectively:

TSS Quiz	Exhibit	Scheduled quiz date
Primary 6 English Language Comprehension Quiz for Term 1	P51	24 October 2019
Primary 2 Chinese Language Reading Assessment (6 & 7)  for Term 2	P52 & P52A	11 December 2019
Primary 4 Chinese Language Reading Assessment (3)  for Term 2	P53 & P53A	13 December 2019
Primary 6 English Language Recitation List and Dictation & Test (2)  for Term 2	P54	13 January 2020
Primary 1 Chinese Language Reading Assessment (3)  for Term 2	P55 & P55A	7 January 2020
Primary 1 English Language Dictation & Test (3)  for Term 2	P56	5 February 2020
Primary 1 English Language Comprehension Quiz for Term 2	P57	15 January 2020
Primary 4 English Language Dictation & Test (2)  for Term 2	P58	9 January 2020
Primary 2 English Language Comprehension Quiz for Term 2	P59	7 January 2020
Primary 5 English Language Dictation & Test (3)  for Term 2	P60	12 February 2020
Primary 3 English Language Comprehension Quiz for Term 2	P61	10 February 2020

(40)  The examination dates of TSS Primary 1 Mathematics, Primary 2 English Language and Primary 5 Mathematics for Term 3 in the school year 2020/2021 were held on 8 June 2021, 4 June 2021 and 8 June 2021 respectively. The relevant examination papers are produced as P62 to P64. The certified English translations of P62 and P64 are produced as P62A and P64A.

(41)  The relevant examination schedules are produced as P65. The certified translation of P65 is produced as P65A.

Chain of Evidence

(42)  The chain of evidence of all the above exhibits is not disputed. All the above exhibits have not been improperly interfered with or tampered with at any time.

Criminal Records of D1 and D2

(43)  D1 and D2 have no criminal records in Hong Kong.

6.  The facts admitted in P76A are as follows:

“On 27 July 2017, D2 issued a cheque under her bank account held with HSBC (of Account No. 620-859207-888)  in the sum of HK$100,000. A copy of the said cheque is now produced as Exhibit P-25A.”

Further Prosecution Evidence

7.  The Prosecution called 15 witnesses.

PW1

8.  Dr Peter Herbert (PW1)  was appointed as the Supervisor of TSS on 1 September 2017.  He is also the Chairman of the IMC of TSS.  The IMC is the top management of TSS.  PW1 explained that the EDB had complete control over the appointment of the managers of the IMC.  TSS is highly accountable to the EDB for its performance in relation to the provision of education to students.

9.  Although the Supervisor of TSS holds the highest leadership position within the school, his duty is to give guidance and direction to the Principal and is not responsible for the daily operation of the school.  The duties of the Supervisor of TSS are set out in “Tak Shun School Administration Guide [4^th Edition]” (P4A, p 246)  as follows:

“ 2.2 Duties of Supervisor

1. Duties of Supervisor

- The Supervisor is appointed by the school sponsoring body to work at the school and holds the highest leadership position within the school.

- The Supervisor serves as the Chairman of the IMC.

- The Supervisor leads the IMC in understanding the school’s operations and oversees the school together with all the school Managers.

- The Supervisor, along with the Principal, is responsible for the financial management of the school.

- The Supervisor provides guidance and direction to the principal, panels and teachers

- The Supervisor ensures that the Principal and staff create the best learning environment for students to achieve quality education”

10.  The Principal is the overall person in charge of the daily operations of TSS. The duties the Principal of TSS are set out in the “Tak Shun School Administration Guide [4^th Edition]” (P4A, pp 247-249)  as follows:

“ 2.3 Duties of Principal

1. To the school

- To prioritise the school’s development objectives

- To lead the school in its development and formulation of the annual operation plans, annual school reports and annual financial reports

- To lead the Administration Team in implementing school-based management and promote self-evaluation and peer evaluation culture

- To collaborate with the Vice-Principals and Curriculum Leader to develop curriculum, teaching and learning strategies and assessment policies

- To seek external resources to support school development

- To manage school resources

- To lead and manage staff

- To lead the crisis management team in their work

2. To teachers

- To provide professional training to enhance the quality of learning and teaching

- To create room for promoting classroom management

- To enhance middle-level management to foster autonomy and accountability

- To implement school-based management

- To strengthen teachers’ sense of belonging to the school

3. To students

- To provide opportunities for students to develop their potential and teach according to their aptitudes

- To provide students with whole-person education, strengthen moral education and focus on cultivating virtues

- To create a favorable environment for students

- To ensure that students receive fair, just and non-discriminatory treatment

- To establish channels of commendation with students

4. To parents

- To establish PTA and acting as its ex-officio member to foster effective good home-school collaboration

- To assist parents in raising and educating their children through a partnership approach

- To promote parental education

- To establish channels of communication with parents

5. To external parties

- To build a good relationship with the community and keep abreast of the latest education information

- To expand the school’s network to let more people know about the school”

11.  The “Tak Shun School Administration Guide [4^th Edition]” also sets out the policy in relation to conflicts of interests (P4A, pp 250-253):

“13. Conflict of Interest Policy

13.1 Prevention of Bribery Ordinance

By virtue of Section 9 of the Prevention of Bribery Ordinance, any school employee who solicits or accepts an advantage in connection with his/her work without the permission of the School Management Committee shall be guilty of an offence. As defined by the Ordinance, “advantage’ includes money, gift, loan, fee, reward, office, employment, contract, service or favor

(1)  The school approves the acceptance [But not solicitation of the following advantages by school staff

- The school does not encourage staff members to accept any gift from parents. If parents and students wish to express that gratitude to staff members, the value of the gifts received by staff members should not exceed HK$100

- At graduation ceremonies, the value of the gifts given by parents and students to staff members should not exceed HK$500

- Upon retirement or resignation, the value of the gifts given by parents and students to staff members should not exceed HK$1,000

- Staff members are required to report the acceptance of gifts in the “Register of Acceptance of Gifts from Parents and Students”

(2)  Staff members who wish to accept advantages that are outside the scope aforementioned shall obtain written approval from the Supervisor/Principal in advance or as soon as possible after accepting the advantages. The approval of the Incorporated Management Committee shall be required for the acceptance of advantages by the Supervisor, any school manager or the Principal. However, there are no restrictions if the advantages are accepted in a personal capacity and are unrelated to the staff member’s school duties [i.e., the giver has no connection with the school]

(3)  Staff members must absolutely not accept advantages offered by any person in relation to the following matters

- admission or promotion of students [registration fees approved by the Education Bureau are not regarded as advantages]

- tutoring of students of the school; referral of students to any tutorial institutions

- donations offered to an individual rather than to the school

- discounts, commissions or gifts offered by suppliers or contractors to an individual rather than to the school

- payments for the use of school premises or school facilities to an individual rather than to the school; and

- travelling benefits for school staff sponsored or offered by suppliers, contractors, or other persons having official dealings with the school

13.2 Other Matters of Possible Interest

- Staff members shall not divulge any confidential information [including examination questions] under any circumstances without authorization

- Staff members shall not misappropriate school property

- Staff members or their immediate family members shall not accept loans from persons or organizations having business dealings with the school [including suppliers, contractors, and parents] or obtain loans through the assistance of those persons or organizations. However, this requirement does not apply to general bank loans.

- Under the provisions of the Prevention of Bribery Ordinance, entertainment is not considered an advantage. However, to avoid any prima facie conflict of interest, staff members should not accept any lavish or frequent hospitality from persons having business dealings with the school

13.3 Outside Work

Staff members who wish to undertake any paid outside work [including part-time work] must obtain written approval from the Supervisor/Principal. However, approval will not be granted if the outside work would result in a conflict of interest.

13.4 Breach of the Code

Staff members who contravening the above Code set by the school will be subject to internal disciplinary action [including dismissal] and, in some cases, may be prosecuted under the provisions of the Prevention of Bribery Ordinance.”

12.  Staff members must also adhere strictly to the School Administration Guide issued by the EDB.  In relation to conflicts of interest, the School Administration Guide (2021/22 school year)  (P7, pp 324-325):

“Appendix 11 Conflict of Interest

- A conflict of interest is likely to arise when a member of the school personnel’s loyalty to the school conflicts with his/her own interest or his/her loyalty to:

- family and other relations;

- personal friends;

- associations, clubs, and societies to which he/she belongs to; and

- any person to whom he/she owes a favor or is obligated in anyway.

Examples of conflict of interest situations

Procurement

(a)  A staff member has a financial interest in or is closely related with a company which is a supplier of goods or contractor of service (e.g. maintenance contractor, education materials supplier)  to the school.

(b)  A staff member evaluates and selects a supplier/contractor from a number of bidders, and he, his spouse, family, member, relative or personal friend, has a financial interest in one of the bidders, e.g. a bidder is operated by his spouse.

(c)  A staff member who is responsible for contract administration solicits services from contractors of the school for his personal interests (e.g. request the contractor to provide renovation service for his all his relative’s home)

Staff Recruitment

(d)  A Principal appoints his relative of friend to take up a post in the school without following the established recruitment procedures.

(e)  A staff member interviews and recruits his relative or friend applying for a job in the school.

Student Admission/Assessment

(f)  A staff member interviews and recommends admission of a student who is his or his close friend’s child or relative.

(g)  A staff member influences the admission interview result or performance assessment of a student who is his or his close friend’s child or relative.

Confidentiality of information

(h)  A staff member leaks confidential information relating to the school’s operations (e.g. questions set for admission interview, maintenance plans)  to favor his friends or relatives.

Others

(i)  A staff member enters into business relationship with parents, or performs outside work for parents or students (e.g. private tuition), or takes up part-time jobs for contractors of the school.

(j)  A staff member leases or sells his property to the school.

Declaration of conflict of Interest

SMCs should put in place proper procedures to require the school personnel, including school managers and staff, to declare any conflict of interest that might influence, or appear to influence, his/her judgment in the performance of his/duties. Such duties include recruitment, duty assignment, promotion, performance, appraisal, selection of staff for training courses and study leave, etc. SMC members and school staff should be advised to:

1. refrain from handling official matters, or making a decision or taking part in making a decision in matters which may conflict with their private interest;

2. refrain from acquiring any investment or financial interest which may lead to conflict of interest with their official duties;

3. decline to provide assistance, advise or information on official matters to their relatives, friends, or any club/organization of which they are members, when this may result in the recipients having an unfair advantage over other persons/organizations; and

4. familiarise themselves with the rules and guidelines on conflict of interest, and act accordingly in such situations.

A declaration of conflict or perceived conflict of interest should be made in writing, preferably on a standard form, or recorded in the notes of a meeting as appropriate. Records of such declarations should be duly kept. When such a situation arises, the SMC, or the school head as appropriate, should decide whether the person disclosing an interest shall be required to abstain from the duty assigned.

The staff member declaring conflict of interest in a matter, should refrain from handling the matter or there should be sufficient monitoring by senior staff or a second party to ensure impartiality. As a general rule, any person who or whose family member has an interest in the appointment, promotion, acting appointment, or regrading must not be in the selection board / appeal board.

Avoidance of conflict of interest

Apart from having declaration arrangements in place, school managers, and school staff alike should seek to avoid it in the first place. For example, it is highly undesirable to make any investment or any financial or other interest which may lead to a conflict of interest with one’s duties in the school. Furthermore, once you avoid putting oneself in a position of obligation, e.g. accepting free service and frequent/lavish entertainment, offered to any person who has or may have official duty.”

13.  PW1 stated that SMC means School Management Committee.  For TSS, this means the IMC.  Not only must school staff avoid a conflict of interest, they must declare an actual conflict of interest or any perceived conflict of interest.

14.  In addition to the above guidelines, the EDB has issued many documents in respect of conflicts of interests.  TSS staff were also required to submit a Declaration of Conflict of Interest annually.  P27A, p 1241 is an example of the Declaration of Conflict of Interest Form.  If a conflict of interest arises in relation to the Principal of TSS, he has to report the same to the Supervisor, who will in turn discuss and decide on the matter with the IMC.  In such a situation, the Principal, who is an ex-officio member of the IMC, must abstain from the discussions.

15.  When PW1 was appointed as the Supervisor, D1 was the Principal of TSS.  On 27 May 2022, D1 tendered his resignation; his resignation took effect on 31 August 2022. 

16.  PW1 found a letter on his desk one morning after he took office as the Supervisor of TSS.  Before PW1 opened the letter, D1 came into PW1’s office.  D1 said that in the past, there were allegations that D1 had an interest or connection with a tutorial centre near TSS.  D1 told PW1 that the letter on PW1’s desk may be related to such allegations.  D1 assured PW1 that he had no connection or involvement in the tutorial centre.

17.  PW1 opened the letter and saw that it was an anonymous complaint that D1 had a connection or was involved in the nearby tutorial centre.  Under EDB guidelines, anonymous complaints do not have to be taken into account.  Further, D1 gave a verbal assurance.  PW1 took D1 at his word and disregarded the letter.  Apart from this occasion, D1 never mentioned his connection or involvement with any tutorial centres to PW1.

18.  PW1 knew that there was a tutorial centre known as DLC next to TSS.  PW1 stated that if D1 had a financial interest in DLC and 20 TSS students attended DLC for tutoring, he would regard it as a potential conflict of interest for a number of reasons.  The School Administration Guide cautions against getting involved financially in such a way that can lead to a conflict of interest.  Normally the guidelines relate to the supply of goods or services to the school and DLC does not provide such goods or services.  However, financial involvement in a tutorial centre is a potential conflict of interest because it may lead to conflicted loyalties and the influence of D1’s judgment or impartiality.  If D1 were connected or involved in DLC, there was a potential conflict of interest which may lead to public criticism of TSS.  Certain situations (hot topics)  are very sensitive and the IMC would not grant any mitigation or exemptions for those matters.  They include conflict of interests in promotion of colleagues, the conduct of school examinations and tutoring schools.

19.  D1 never reported any connection or involvement in DLC to PW1 or the IMC.  If D1 had reported to PW1 that he had financial interest in DLC, D1’s involvement would be regarded by PW1 as a breach of paragraph 1 of Appendix 11 of the EDB’s School Administration Guide and the spirit of paragraph 2 of that guide (P7, pp 324-325).  PW1 would ask D1 to desist immediately to avoid potential public perception and for the sake of D1’s own reputation.  The matter would be discussed at the IMC and would possibly be reported to the EDB for advice and guidance.

20.  Some of the quiz and examination results of Primary 5 and 6 students would be given to the EDB for the allocation of secondary placements.  This included the examination results of the 3^rd term of Primary 5.

21.  No student (primary 1 to 6)  is allowed to keep their examination papers after the examination.  Parents can ask to see the examination papers of their child but are not allowed to take photographs or keep copies.

22.  TSS examination and quiz papers (including draft papers)  are regarded as confidential information.  School staff are specifically prohibited by the TSS Administration Guide from divulging any examination papers to third parties.  Divulgence of draft papers to outsiders would give an unfair advantage to those who had access to the draft examination or quiz papers.  Any divulgence of any form of the examination or quiz papers to outsiders was a breach of confidentiality and the TSS Administration Guide.  Divulgence of papers would also have an adverse impact on TSS, it would call into question the school’s operation, the conduct and integrity of examinations and the reliability of past school results, especially for high stakes areas like secondary school allocation.

23.  D1 has never told PW1 that in about November 2018, the EDB made enquiries with D1 about a complaint that there was a leakage of TSS examination papers.  PW1 would expect D1 to report to him if there were such a complaint.  Had the matter been reported by D1 and the EDB is already conducting its own enquiry, PW1 would have to wait for the completion of the enquiry.  The EDB would inform PW1 of its findings and PW1 may be asked to report to the IMC or take action.  Sometimes after the EDB received a complaint, PW1 would be asked to conduct an investigation.  PW1 stated that at the time, a lady from the EDB Regional Education Office of Yau Tsim Mong visited TSS.  She mentioned to PW1 that she had been handling an investigation of a complaint but she did not disclose the nature or details of the complaint to PW1.

24.  In 2021, the 3^rd term examination of TSS Primary 5 took place in June.  The results of that examination were submitted to the EDB for secondary school allocation.  However, the EDB told TSS that it was not going to accept the results of that examination as fair or reliable because the examination questions may have been divulged to outsiders and about 15 students may have seen the examination questions prior to the examination. The students and their parents were very upset by the prospect of another examination.  Pursuant to a request from TSS, a senior EDB official, Mr Cheng convened a meeting at the EDB.  PW1 attended that meeting with the acting Principal.  A representative from Central Allocation was also present.  It was concluded that the examination results in September 2021 would be used for the allocation of secondary placements instead of those in June 2021.

PW2

25.  Mr Cheng Kwok Yan, Brian (PW2)  was the Principal Education Officer of the Education Bureau since October 2020.  The EDB’s responsibilities include:

(1)  overseeing all levels of schools in Hong Kong;

(2)  ensuring that all schools in Hong Kong comply with the Education Ordinance and regulations;

(3)  issuing notices from time to time;

(4)  overseeing developmental matters in respect of mainly public schools;

(5)  formulating, developing and reviewing education policies;

(6)  monitoring schools and organizations that provide education;

(7)  ensuring that schools meet the requisite teaching standards of the EDB.

26.  All financially aided schools are required to strictly comply with the School Administration Guide issued by the EDB.  A vast majority of the financially aided schools have an IMC, which are responsible for managing the administration of the school.  Under the Education Ordinance, all appointments of Principals have to be approved by the EDB.  That approval can be withdrawn in certain circumstances, for example, if the Principal is not performing his duties satisfactorily.  Under the Education Ordinance, the Principal is an ex officio manager of the IMC.  The Principal has the power to make decisions for school matters, including management, administration and operations.

27.  Appendix 11 of the School Administration Guide (2021/22)  issued by the EDB (P7)  sets out examples of situations where a conflict of interest may arise.

28.  PW2 was responsible for schools in the Kowloon area, save for a few kindergartens.  TSS was also under PW2’s supervision.  If the TSS Principal has a financial interest in a tutorial centre attended by 20 TSS students, it would amount to a breach of the EDB guidelines.  Not only must a Principal declare any conflict of interests, he/she must avoid any situations of conflicts of interests.  An investigation would be launched if the EDB receives any complaint that a Principal has a financial interest in a tutorial centre.  The standard protocol was for the matter to be referred to the IMC who would in turn report to the EDB.  If the complaint were proved, the matter would be referred to the police and the Principal would be asked to desist from having a financial interest in the tutorial centre.  The matter would also be referred to the police if the TSS Principal had divulged examination papers to DLC.

29.  Tutorial Centres are also supervised by the EDB to ensure that they are operated in accordance with the Education Ordinance and regulations.  They also have to sign the “conflict of interests” section in the School Administration Guide (P7).

30.  There are 3 earlier versions of Appendix 11 to the School Administration Guide (P7A, P7B and P7C).  There is also an updated version in 2021/2022 (P7D).

PW3

31.  Since 2018, Mr Lai Kin Fan (PW3)  was the Senior School Development Officer of the Eduction Bureau in the Yau Tsim Mong area.  He was responsible for carrying out school inspections and handling complaints.  The EDB would select secondary and primary schools and kindergartens for routine inspection from time to time. If there were a complaint, the EDB would go to the school or tutorial centre for investigation.

32.  TSS was one of the schools under PW3’s supervision.  In October 2018, the EDB received a complaint letter from a person who claimed to be a parent of one of the TSS students.  This parent complained that a school staff member had a relationship with Miss Wing, a staff member of DLC and that TSS examination questions have been divulged to DLC.

33.  Because of the complaint, PW3’s team members went to DLC on 12 November 2018.  At DLC, PW3’s team members spoke to Madam Yim, obtained copies of a list of students, a list of staff and DLC’s teaching materials.  PW3’s team found that the teaching materials used by DLC were very similar to common teaching materials but not highly similar to TSS examination papers. 

34.  On 13 November 2018, PW3’s team went to TSS to investigate the allegations in the complaint letter from D1.  After speaking to D1, PW3 found no specific problems with the setting, drafting or safe keeping of examination questions.  D1 told him that no TSS staff had any relationship with the staff of DLC.  In the end, D1 stated that only the daughter of a TSS school janitor was a shareholder of DLC.  D1 stated that the examination papers were locked inside a room in the school office and only D1 had the key to that room.  D1 assured PW3 that the janitor had no contact with the examination papers.  PW3 reminded D1 that every staff member had to declare any conflict of interest in respect of any external parties or organizations.

35.  D1 was also asked about a flower basket that he sent to DLC upon DLC’s opening.  D1 told PW3 that D2 was the parent of a TSS alumnus and that he met D2 because she was relatively active in school activities.  PW3 told D1 that he understood that the flowers were gifted in a personal capacity.  He reminded D1 that the school should avoid having an overly close relationship with DLC.  PW3 also reminded D1 not to send any flowers to any tutorial centre in the future.

36.  After the above investigation, PW3 found that the complaint was not made out.

PW4

37.  Between 2018 and 2020, Mr PARK Thomas Bing Lap (PW4)  worked as a part time tutor at DLC.  D2 was the contact person for DLC when PW4 applied for this job.  D2 was also the person who assigned work to PW4 at DLC.

38.  PW4 worked for 3 to 5 days per week at DLC (3 to 4 hours per day).  He would report his working hours to D2.  He would then receive payment from Miss Yim.

39.  Homework classes were held on Mondays to Fridays; the classes on Saturdays were for mock papers and practice.  PW4 was teaching mainly primary 5 and 6 students on Saturdays.  He was responsible for teaching students to do homework, check students’ homework, help students with dictation and examination preparation.

40.  D2 would provide mock examination papers to PW4 upon his arrival to the class.  PW4 recalled that D2 had told him on WhatsApp that she was preparing the mock examination papers.  PW4 would check the students’ answers after the mock examination papers have been completed.  Then PW4 would go over any mistakes with the students.  After the class, the mock examination papers were given back to DLC.

PW5

41.  Ms Wong Lo Kam (PW5)  is the Senior ICAC Investigator.  After she arrested D2 at 3:07 pm on 12 June 2021, she took D2 to the Detention Centre at the ICAC, served D2 with a Notice to Persons in Custody and conducted a search on D2.  PW5 found and seized 2 USBs inside D2’s handbag.  These 2 USBs were produced as P37.

PW6

42.  Ms Lee Mei Ngan (PW6)  joined TSS as a teacher in 1993.  She was promoted to one of the 3 Vice Principals of TSS in the 2013/2014 school year.  In 2021, D1 was the Principal of TSS.  On 15 June 2021, PW6 became the acting Principal of TSS.  She is now retired but sometimes works as a substitute teacher.

43.  The 3 Vice Principals had different duties in TSS; PW6 was responsible for learning and teaching matters, including the vetting of draft examination papers.

44.  In TSS, the process of drafting examination papers starts about 1 month before the examinations as follows:

(1)  a subject teacher from the relevant grade is assigned to prepare the first draft of the examination papers and the answers to the question (the answer key);

(2)  the draft paper and answer key are then circulated to the other subject teachers in the same grade for consideration and comments;

(3)  a circulation record is attached to the drafts of the examination paper and answer key;

(4)  if the draft examination and answer key require no amendment, they would be given to the subject panel chair;

(5)  the subject panel chair would comment on the draft. The comments (if any)  would be written on the draft or the circulation record;

(6)  if it is an English, Chinese or Maths examination, the draft with the comments from the subject panel chair would be given to the Curriculum Director;

(7)  the Curriculum Director would comment on the draft, before giving to the learning and teaching Vice Principal, ie PW6 together with the circulation record;

(8)  PW6 would comment on the draft and forward it to the Principal (D1)  together with the circulation record;

(9)  the Principal (D1)  may write his comments on the circulation record or give his comments to PW6 orally. The draft and circulation record would be returned by the Principal (D1)  to PW6;

(10)  PW6 would relate the comments from D1 to the subject panel chair;

(11)  the subject panel chair would return the draft to the teacher who set the questions for amendment;

(12)  if there were many amendments to the draft, the amended drafts would be re-circulated in the same way. It was not necessary to recirculate if the amendments were very minor;

(13)  the draft examination paper, the answer key and the circulation record were circulated by hard copies;

(14)  once the examination paper and answer key are finalized, they would be passed on to the clerk for printing.

45.  Usually teachers are not allowed to upload the examination paper into the school computer server prior to the examination.  However, a copy of the examination paper would be uploaded to the school computer server for future reference and is usually placed in the Teachers’ Resources Folder.  There are sub-folders within the Teachers’Resources Folder which contained information in relation to schemes of work, lesson plans and curriculum.  Substitute teachers who work for TSS for less than 1 month have no access to this folder.

46.  This practice is communicated to all teaching staff.  The staff are also reminded about the restriction on uploading examination papers at the annual school meeting, the short weekly meetings prior to examinations and in the teachers’ WhatsApp group.  These meetings are attended by all teaching staff. Every teacher also has a handbook/manual.  There is a digital copy of this handbook/manual in the Teachers’ Resources Folder in the school computer server.

47.  Apart from examinations or assessments, there are also quizzes.  There are no guidelines in relation to the uploading of these quizzes.  The quizzes are set by one of the subject teachers of the grade.  The draft quiz will be circulated to the other subject teachers of the same grade.  Quizzes do not have to be vetted by D1, PW6 or the Curriculum Director.

48.  In the 2020/2021 school year, PW6 was responsible for vetting the third term draft examination paper for Primary 5.  The drafts of this examination paper and the circulation record are produced as P75 (pp  3718-3791).  The certified English translation of these documents are produced as P75A (pp 3792-3993).

49.  The maths teacher of Primary 5B, Mr Ho Ka Kit was responsible for the first draft of this examination paper.  Apart from the questions, Mr Ho would also prepare the answers to each of the questions (the answer key).  Amendments were suggested by the other teachers when this examination paper and the corresponding answer key were circulated.  The circulation record shows that there were 4 versions of this examination paper and their corresponding answer keys before the draft was finalized.  The draft examination paper, the corresponding answer key and the circulation record were re-circulated after each amendment.  These versions were marked as V.1, V.2, V.3 and V.4 in the circulation record (P75, p  3718).

50.  The other Primary 5 Maths teachers were also involved in the drafting of this examination paper, ie Primary 5A, Primary 5C and Primary 5D.  The names of these teachers are listed on the circulation record.

51.  After the draft examination paper and its corresponding answer key were cleared by the Primary 5 maths teachers, they would be given to Mr Leung Siu-Lun (the Vice Subject Chair), Mr Chung Ting-yan (the Subject Chair), Mr Wan Ngai Ting (the Curriculum Director)  and PW6 for comment.  Finally, the draft examination paper would be given to D1.  However, Mr Leung Siu-Lun left TSS during the drafting of this examination paper and the documents were not circulated to him.

52.  If the persons on the circulation record have no comment on the draft examination paper or corresponding answer key, he/she would usually mark the circulation record with a slash.  Any comment would be noted in the comments section of the circulation record and/or the draft examination paper itself.  Each person named in the circulation record would normally mark the date they reviewed the draft examination paper and answer key.

53.  Each version of the examination paper and its corresponding answer key is marked at the top of the first page of that document.  The examination papers are marked with “STD” which means it is the examination paper without answers. P75 contains different versions of this examination paper and its corresponding answer key:

(1)  P75, pp 3719-3726 is the 3^rd version of the answer key. It is marked “V.3 ANS”;

(2)  P75, p 3726-3734 is the amended 2^nd version of the answer key. It is marked “Final V.2 ANS;

(3)  P75, pp 3735-3742 is the amended 2^nd version of this examination paper. It is marked “Final V.2 std”;

(4)  P75, pp 3743-3750 is the 2^nd version of the answer key to this examination paper. It is marked “V.2 ANS”;

(5)  P75, pp 3751-3758 is version 1 of the answer key to this examination paper. It is marked “V.1 ANS”;

(6)  P75, pp 3759-3766 is the 3^rd version of this examination paper. It is marked “V.3 std”;

(7)  P75, pp 3767-3774 is the final version (ie the 4^th version)  of the answer key to this examination paper. It is marked “Final V.4 ANS”;

(8)  P75, pp 3775-3782 is the amended 1^st version of this examination paper. It is marked “Final std V.1”;

(9)  P75, pp 3783-3790 is the 4^th version (ie the final version)  of this examination paper. It is marked “Final V.4 std”;

(10)  P75, p 3791 is a table setting out the scores and percentages for each part of this examination paper.

54.  According to the circulation record (p 3718), Mr Ho Ka Kit started circulating the first draft of this examination paper and its corresponding answer key on 28 April 2021.  PW6 first reviewed the 3^rd version of the draft examination paper and answer key on 17 May 2021.  She then had a discussion with Mr Wan Ngai Ting (the Curriculum Director).  They felt that the contents and difficulty level of this examination paper could be enhanced.  D1 was informed of this view and he agreed.  The 3^rd version of the examination paper and its corresponding answer key were given to Ms Chung Ting-yan (the Subject Chair)  with instructions for Mr Ho Ka Kit to make amendments.

55.  PW6 reviewed the 4^th version of this examination paper and its corresponding answer key on 25 May 2021.  She discovered that the proposed answer to question 18 was incorrect.  She made a note in the comments section of the circulation record (p 3718)  「No 18 答案是否錯了」and circled question 18 on the 4^th version of the answer key (p 3769). The 4^th version of this examination paper and the corresponding answer key were subsequently passed on to D1 after the answer to question 18 was corrected.  P40 (pp 2800-2807)  is the finalized version of the answer key to this examination paper.

56.  There are 2 signatures of D1 on the circulation record (p  3718).  This means D1 reviewed versions 3 and 4 of this examination paper and their corresponding answer keys.  D1 did not date his signatures but his review of the 4^th version should be after 25 May 2021 because these documents would only be given to D1 after PW6 has reviewed them.

57.  Draft examination papers can be circulated in a number of ways.  Teachers can give the draft to other teachers by hand.  The draft examination papers may be placed inside a folder and put on the desk of a teacher, in which case, the examination papers would be placed under the circulation record.  The draft examination papers inside the folder may also be placed on a teacher’s desk by the janitor responsible for office work.  For D1, sometimes the folder with the draft examination papers would be placed inside a tray outside D1’s office.  However, PW6 handed the drafts to D1 by hand most of the time.  Once the examination papers are finalized, they would be sent to the clerk, Ms Wong Yee Ling to be printed by janitors.  The printed examination papers will then be locked inside a cabinet in the school office.  The key to this cabinet is kept by the clerk, Ms Wong Yee Ling.  Two or three days before the scheduled examination, Ms Wong Yee Ling would take the examination papers out of the cabinet and hand them to the co-ordinator of that grade level.

58.  The teachers’ desks are inside a school office (the staff room).  Teachers, administrative staff and a janitor who was responsible for office work have an access card to enter the staff room.  Other janitors do not have access to the staff room.

59.  There are 2 doors to the staff room.  Before 6 pm on weekdays, the staff can enter the staff room through the main door with the access card.  After 6 pm on weekdays and during out-of-office hours, only senior staff can go into the staff room with their access cards.  No access card is required for the side door, which is left opened during most of the day on weekdays. 

60.  D1’s office is also inside the school office.  D1’s door is usually left unlocked and opened.  D1’s office would be cleaned by the janitor every day.

61.  There is a meeting room inside the school office, which is used for meetings and interviews.  D1 would conduct meetings inside his office if the meeting room were occupied.  However, PW6 and other staff would never use D1’s office for meetings.  PW6 denied that she had ever used D1’s computer inside D1’s office.  She also denied that D1 had provided her with the password to D1’s computer.

62.  TSS school staff have access to an e-Smart system on their computers.  This is a database which created the publisher and contains electronic books and questions for General Studies.  Only General Studies teachers would have the password to this database.  However, there is a similar database for English, Chinese and Maths, which contains sample questions which teachers may use as reference.  In about 2018, the entire English and Chinese folder disappeared from the Teachers’ Resources folder.  In about April or May 2020/2021, the system was compromised when a Primary 4 boy logged into the system with a teacher’s password and shared the contents.

63.  Past examination papers are also used by teachers as resources for setting examination papers.  However, there is a rule that the same questions may not be used within 3 years.

64.  Parents are allowed to check the examination papers after the examination under supervision of a teacher.  PW6 or a teaching assistant would act as the supervisor.  However, parents are not allowed to take copies or photographs of these examination papers.

65.  PW6 admitted that she knew about DLC and that Miss Yim and D2 were the persons in charge of this tutorial centre.  PW6 met D2 because D2 is the parent of a TSS alumnus.  Although her child has already graduated from TSS, D2 was still very enthusiastic in participating as a parent volunteer at TSS.  PW6 together with her colleagues and D1 had tea gathering with D2 once a year.  PW6, D1, other vice principals, the PE Panel Chair and some teachers have also had dinner with D2.  PW6 maintained contact with D2 through WhatsApp.  PW6 also attended other meals with D2, including the birthday party and secondary graduation dinner of D2’s son which was after the speech day of Kowloon Wah Yan College.  PW6 had dinner with D1 and other parents at D2’s home at around Christmas 2020 and Chinese New Year 2021.

66.  D2 used to work for North Face, she gave some sample clothing to D1, who in turn distributed the same to colleagues, including PW6.  D2 also gave PW6 a down jacket when they went to Korea for a school exchange trip.

67.  D1 told PW6 that D2 was opening a tutorial centre called DLC.  Out of courtesy, she agreed to join D1, Lee Ying Chiu and Lee Ho Keung in sending a flower arrangement in their personal capacity for the opening of DLC.

68.  PW6 agreed that she was friends with D2.  She admitted that she had given D2 a set of maths text books for teachers with D1’s consent.  She also donated 3 boxes of candies to DLC and another primary school in June 2020.

69.  TSS students were encouraged to read, they have access to an online portal called Sunshine Portal.  Each student had a password to this portal; the password is printed on a sticker on the student’s handbook.  Students had to answer some questions after reading each book.  The student who read the most could have breakfast with D1 as a reward.  After DLC came into operation, D1 instructed PW6 to help D2 when necessary.  One TSS student also attended DLC.  This student was very keen to have breakfast with D1 but he could not log into the portal.  PW6 therefore gave this student’s password to D2 to facilitate access to the Sunshine portal.

70.  Apart from her friendship with D2, PW6 had no connection to DLC and had never divulged any TSS draft examination papers to any outside parties, including D2 and DLC.

PW7

71.  Mr Wan Ngai Ting (PW7)  joined TSS as a Curriculum Leader in 2015.  He is now a vice principal of TSS.

72.  He was still the Curriculum Leader of TSS in the 2020/2021 school year and was responsible for vetting the examination papers for Chinese, English and Maths, including the Primary 5 Term 3 Maths examination papers (pp 3718-3791).  Teachers involved in the vetting of this examination paper were invited to comment on the draft examination paper on the circulation record (p 3718).  After D1 vetted version 4 of this examination paper, it was returned by D1 to Vice Principal Lee (PW6). PW6 would then hand the examination paper to the Subject Panel Chair or the Subject teacher and start the printing process.

73.  PW7 admitted that he has heard of a tutorial centre known as DLC and knew that D2 was the person in charge of that centre.  PW7 knew D2 because D2 is the parent of a TSS alumnus.

74.  TSS is an all boys’ school. PW7 has 2 daughters who attended the Methodist school nearby.  PW7 was thinking of tutorial lessons for his daughter at one point.  He asked D2 about the cost of tutorial lessons at DLC but decided against tutorial lessons in the end.  Thereafter, he only saw D2 at school events.  Apart from that, he had no further contact with D2.  He never divulged any draft examination papers to D2.  D2 has sent him copies of past examination papers of Methodist School by WhatsApp but PW7 never asked for them.  He explained that the Methodist School would distribute past examination papers to students after the examinations.  Therefore all the students would already have copies of past examination papers.  In TSS, past examination papers are not given back to students.  D2 operated a tutorial centre.  That was perhaps why D2 asked PW7 not to share the past examination papers of Methodist School with other school mates.

75.  PW7 knew that some of the results of Primary 5 and Primary 6 examinations would be submitted to the EDB for allocation of secondary places.  These examination results account for 90% of the total score.  For Chinese, there is a reading assessment which makes up the remaining 10% of the total score.  For Maths, the assessment of the remaining 10% is based on quizzes and tests.

76.  PW7 admitted that teachers would review draft examination papers at their desks in the school staff room.  He would sometimes take draft examination papers home for review.

PW8

77.  Mr Chung Ting-Yan (PW8)  began working in TSS as a Maths teacher since 2000. He is also the Maths Subject Panel Chair.  In the 2020/2021 school year, he was responsible for setting the Primary 5 Term 3 Maths examination papers (pp 3718-3791).  Teachers involved in the drafting and vetting of this examination paper (including PW8)  were invited to comment on the circulation record (p 3718).  As the Subject Panel Chair, PW8 would so write his comments in green on the draft examination papers and in red in the corresponding answer key.  He reviewed this examination on 3 separate dates, namely versions 2, 3 and 4 between 7 May and 21 May.  For Version 3, his comment was “refer to V.2”. The final version was version 4 (pp 3767-3774). He probably wrote the amendment to Question 18 in version 4 of the answer key (p 3769)  but he was not sure.  PW8 stated that he never divulged any draft examination papers to any outside parties.  He knew about DLC but he had no connection or relationship with any DLC staff.

PW9

78.  Mr Ho Ka Kit (PW9)  began working in TSS as a Maths teacher since 2017.  In the school year 2020/2021, PW9 was responsible for drafting the Primary 5 Maths examination paper.  The draft examination paper was then circulated to the other teachers of the same subject in the same grade for comments (pp 3718-3791).  PW9 then revised his draft after seeing the comments from the other teachers.  His signature and the dates of different drafts are set out next to his name in the circulation record (p  3718).  There were 4 versions of the draft examination paper.  PW9 circulated each version on 28 April, 5 May, 10 May and 21 May respectively.

79.  After drafting version 3 of the examination paper, PW9 gave it to the Subject Panel Chair (PW8)  who in turn circulated the paper to the Vice Principal (PW6). PW6 thought that PW9 could enhance the difficulty of the examination.  Therefore, PW9 changed questions 18, 23 and 30 of the draft examination paper (p 3767). When PW9 changed question 18 of the examination paper, he forgot to change the corresponding answer key.  The mistake in Answer 18 was discovered by PW6 when she reviewed Version 4 of the examination paper and answer key (pp 2800-2807). After version 4 of the draft examination had been reviewed by D1, it was returned to PW9 for amendment.  Thereafter, Ms Leung Wing-Yan set out the marking scheme for this examination paper but had no further comments.  The examination paper was then printed by janitors.

80.  PW9 admitted that he has heard of DLC from students.  He has no connection or relationship with any DLC staff and has never divulged any draft examination to any outside parties.

81.  The results of this examination were not accepted by the EDB and students had to take another Maths examination in September 2021.  The questions for the September examination were different from this examination paper but the results of the 2 examinations were very similar.

PW10

82.  Ms Leung Wing-Yan (PW10)  started teaching in TSS in 2004.  Initially, she taught Maths, Chinese, General Studies and Information Technology.  In 2015, because of the specialization policy, she ceased teaching Chinese.  In the 2020/2021 school year, PW10 was responsible for teaching Primary 5 Maths and General Studies and was the Primary 5 Maths Panel Chair.

83.  In the same school year, PW9 was tasked with the drafting of the Primary 5 Term 3 Maths examination paper, whilst PW10 was responsible for review of that draft examination paper (pp 3718-3791).  The teachers involved in the setting of this examination paper are listed in the circulation record (p 3718). This circulation record shows that PW10 reviewed all 4 versions of the draft examination paper.  She reviewed version 4 of the draft examination paper and relevant answer key (pp  3767-3774)  on 21 May 2021.

84.  The draft Maths examination paper and answer key are first circulated amongst the subject teachers of the same grade.  If all the subject teachers agreed on the draft, it would be circulated to the Subject Panel Chair (PW8), then the Curriculum Director (PW7)  and then the Vice Principal (PW6)  and lastly to D1.  After review by D1, the examination paper and answer key would be returned to PW6, then PW8, then PW10 and then PW9.  After final amendments are made by PW9, the examination paper and answer key would be printed in bulk. PW10 would have a chance to review the printed version to ensure that there are no mistakes before the actual exam.

85.  PW10 made comments for Question 7 (p 3751), Questions 15 and 19 (p 3753), Question 24 (p 3755)  until the end of the examination paper.  She also commented on the marking criteria for Question 6 (p  3767)  and Questions 20-23 (p 3770).  She also commented on Questions 25-27 and 30 (pp 3771-3773 and 3789).

86.  According to the circulation record (p 3718), Version 4 of this draft examination paper was reviewed by D1.  Because D1 did not date his review, PW10 is not sure whether all of her comments were made before or after D1’s review.  She is only sure that her comments about Question 30 (changing the unit from sq.m to cubic metre)  was made after D1’s review, ie after bulk printing.  According to the circulation record (p  3718), PW6 and PW7 reviewed Version 4 of the examination paper on 25 May, whilst PW10 reviewed the same on 21 May 2021.

87.  There is a comment in brackets next to Question 6 (p 3767).  PW10 stated that she made this comment on 6 or 7 June when she reviewed the examination paper after bulk printing, ie after D1 reviewed the examination paper.  PW10 circled the comments that she made after bulk printing (P75B).  Version 4 of the same examination paper without PW10’s comments (pp 2800-2807)  was the copy handed to other teachers for their review.

88.  PW10 admitted that she has heard of a tutorial centre called DLC but she has no connection or relationship with any DLC staff.  PW10 has never divulged any draft TSS examination papers to outside parties.

PW11

89.  Mr Yeh Chung-yin (PW11)  joined TSS as an Information Technology Manager in 2019 and was responsible for the daily operation of the TSS computer system.  He left TSS in September 2021.

90.  PW11 was responsible for setting up the staff user accounts.  Each staff member of TSS was given their own login name to the school computer server.  In most cases, the login name was that staff member’s initials. D1’s login name was KCK, ie his English initials.  In addition to the login name, each staff member can only log into the server with their login name and personal password.  When the user account is first set up, the staff member would be provided with a default password, which is the school telephone number.  The staff member can then change their password to a personal password.  The personal password is set personally by each staff member.  Although PW11 was the Information Technology Manager, he had no authority to know D1’s password.  Some staff members may not have changed their passwords and continued to use the default password.  However, the computer system requires each staff to change their passwords periodically.  That requirement cannot be ignored.  Staff members can change the password and then change it back to the default password later.

91.  There was a router inside D1’s office to enable him to access the internet with his electronic devices.  The IP address of this router was 10.84.183.6.  This router was used exclusively by the Principal’s office.  The router is protected by a password.  Only D1 had this password; even PW11 did not have this password.

92.  PW11 gave a disc containing files saved in the TSS computer server to the ICAC.  The TSS computer system was operating properly when PW11 saved these files in the disc.

93.  Sometimes, if a staff member forgets his/her password, he/she will have problems logging into his/her account.  In that event, PW11 will have to reset the password to the default password.  PW11 does not recall if he has ever been asked to reset D1’s password.  However, he remembers that D1 has asked for assistance with IT related problems.  On that occasion, D1 gave PW11 his login name and password.  PW11 has never divulged D1’s login name or password to anyone else.

94.  D1’s computer was an iMac desktop computer.  PW11 was sometimes required to solve issues on D1’s computer and would log into D1’s computer.  Sometimes D1 would be present and sometimes not.  PW11 has no recollection whether D1’s WhatsApp was on his computer.

95.  The Teachers’ Resource Folder is a folder on the school server to which teaching staff had access.  PW11 was responsible for the management of the server.  He and the IT team have access to that folder.  PW11 knew that there were examination papers inside that folder.  He has never divulged any examination papers to any other party.

96.  At one point during the ICAC investigation, PW11 was asked to check the IP address 10.84.183.6.  He checked the IP address both on the IP address distribution list and on the computer.  PW11 did not have to access D1’s account to access that information.  He could see the MAC address and the abbreviated name of that device.  According to the IP address distribution list, that IP address belonged to the Principal’s office router.  This router was set up by PW11 with a default password.  The default password was not the school telephone number.  The password was on a sticker on the bottom of the router.  D1 could change the password but PW11 does not know whether the password was changed or not.  It was possible for multiple devices to be connected to that router but the person who wishes to connect to the router must know the password and be in the vicinity of the router.  PW11 does not know whether D1 has given that password to others.

PW12

97.  Mr Cheung Ho Ching (PW12)  is a computer forensic examiner of the ICAC.  He was asked to examine a number of electronic devices in the present case.

98.  PW12’s expertise was not in dispute.  His witness statement was admitted as P77 pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, which stated as follows:

“3. At 1204 hours on 16 June 2021, Officer CHU Ka-ki, Kiki (Officer CHU)  handed to me an USB external harddisk (exhibit ref: “PWH/O/10”): a notebook computer (exhibit ref: DLC/YMH/18”), two desktop computers (exhibit ref: “DLC/YMH/19” and “DLC/YMH/22”).

4. I then used Encase Imager to acquired forensic images from “PWH/O/10”, “DLC/YMH/19”, “DLC/YMH/22” on 16 June 2021 and “DLC/YMH/18” on 17 June 2021 respectively. By using the acquired forensic images for examination, the original could not be tampered with.

5. On 2 July 2021, as instructed by Officer KING Yu-cho, Joe (CI/K3), the Chief Investigator of Computer Forensics and R & D Section, I shared the forensic images of “PWH/O/10”, “DLC/YMH/18”, “DLC/YMH/19” and “DLC/YMH/22” with Officer CHOW Tak-yeung, Billy (SCFS/K3), the Senior Computer Forensics Specialist of Computer Forensics and R & D Section for further examination and analysis on USB devices connection histories, recent files access record, file content and metadata comparison…

7. To the best of my knowledge and belief, the computer used for examination and printing processes satisfied the following conditions:

(A)  that the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or individual;

(B)  that the information contained in the statement reproduces or is derived from information supplied to the computer in the course of those activities; and

(C)  that while the computer was so used in the course of those activities:-

(i)  appropriate measures were in force for preventing unauthorized interference with the computer;

(ii)  the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the documents or the accuracy of their contents.”

99.  In other words, PW12 has examined the electronic devices mentioned in his witness statement, including a desktop computer “DLC/YMH/22” and produced as P41 (DLC’s Desktop Computer). He then used forensic tools to obtain forensic images and shared those images with Mr CHOW Tak-yeung, Senior Computer Forensics Specialist of Computer Forensics and R & D Section of the ICAC.

PW13

100.  Mr CHOW Tak-yeung (PW13)  is a Senior Computer Forensics Specialist of Computer Forensics and R & D Section of the ICAC.

101.  PW13’ expertise was not in dispute.  His witness statement was produced as P78 pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221.  PW13 was then called to clarify his witness statement and was tendered for cross-examination.  His witness statement is very long and has been produced.  I do not propose to repeat it in full.  Instead, I will summarize his evidence.  For ease of reference, PW13’s conclusions will be underlined.

Computer Seizures

102.  PW13 stated that a number of items seized by the ICAC were handed to him for examination and comparison (paragraph 3 of P78).

(1)  On 15 June 2021, Officer CHU Ka-ki, Kiki (Officer CHU)  handed to PW13 an Apple iMac Computer (exhibit ref: “TSS/KCK/O/1”), ie P33, D1’s desktop computer seized from D1’s office at TSS (D1’s computer).

(2)  On 16 June 2021, Officer CHU handed to PW13:

(1)  a USB thumb drive (exhibit ref. “PWH/B/1”), ie P37, a thumb drive seized from D2 (the USB); and

(2)  a USB external hard disk (exhibit ref. “TSS/YCY/1”), ie P50, a hard disk containing the files from the TSS server Reachers Resource folder [C:\Share\TeacherResource] (the Hard Disk).

103.  PW13 then used the forensic tool Recon Imager by Samuri to extract data from D1’s computer (P33, “TSS/KCK/O/1”).  He also used the forensic tool Encase Imager to acquire forensic images from the USB (P37 “PWH/B/1”)  and the files from the Teachers Resource folder in the TSS server (P50, “TSS/YCY/1”).

104.  PW13 explained that any subsequent examination will be done on the forensic images in order to prevent the original computer seizures from being tampered with and hence the data integrity can be preserved.

105.  On 30 June 2021, PW13 examined the forensic images of the USB (P37 “PWH/B/1”)  and the folder in the Hard Disk (P50 “TSS/YCY/1”).  He produced the following documents as hardcopies with Exhibit References as listed below.  For each file, an alias was assigned for easy reference in later pair-up comparison.  The 6 sets of hard copies were handed over to Officer LAM Tak-Hung on 7 July 2021.

106.  Documents produced from the USB (P37, “PWH/B/1”):

Alias Assigned	Exhibit Ref.	File Path in “PWH/B/1”	File Name in “PWH/B/1”	No of page	Exh No
Maths	“PWH_B_2021_P1_3rd_Maths”	Maths	2021P1第三學段考試_問題_Maths.docx	9	P72
Eng	“PWH_B_1_2021_P2_3rd_R&W Exam”	\Eng\O2 Reading and Writing\	2021 P.2 3rd R & W Exam.docx	10	P73
Eng-ans	“PWH_B_1_2021_P2_3rd_R&W Exam_ans”	\Eng\O2 Reading and Writing\	2921 P.2 3rd R & W Exam_ans.docx	10	P74

107.  Documents produced from the folders in the Hard Disk (P50, “TSS/YCY/1”):

Alias Assigned	Exhibit Ref	File Path in “TSS/YCY/1	File name in “TSS/YCY/1”	No of pages	Exh No
Maths	“TSS_2021_P1_3rd _Maths	\TeacherResource\科組共用資源\2020-2022學習評估\2.3數學科\一年級\考試\	2021第三學段考試_問題.docx	9	P69
Eng	“TSS_2021_P2_3rd _R&W Exam	\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\	2021 O.2 3rd R & W Exam.docx	10	P70
Eng_ans	“TSS_2021_P2_3rd _R&W Exam_ans”	\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\p.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\	2021 P.2 3rd R & W Exam-ans.docx	10	P71

108.  The documents in relation to the “Maths” files in the USB (P37 “PWH/B/1”)  together with their English translations were produced respectively as P72 and P72A (pp 3622-3639).  The documents in relation to the “Eng” files in the same USB were produced as P73 (pp 3678-3697).  The documents in relation to the “Eng_ans” files in the same USB were produced as P74 (pp 3698-3717).

109.  The documents in relation to the “Maths” file in the School Server (P50 “TSS/YCY/1”)  together with their English translations were produced respectively as P69 and P69A (pp 3527-3544).  The documents in relation to the “Eng” file in the School Server (P50 “TSS/YCY/1”)  were produced as P70 (pp 3582-3601).  The documents in relation to the “Eng_ans” file in the School Server (P50 “TSS/YCY/1”)  were produced respectively as P71 (pp 3602-3621).

Pair-up Comparison of files in the USB and the Hard Disk

110.  PW13 compared the files found in the USB (P37 “PWH/B/1”)  and the School Server (P50 “TSS/YCY/1”)  ie That is, the “Maths” file in the USB (P72)  was compared to the “Maths” file in the School Server (P69).  Upon comparison, PW13 found that the 3 files in the USB (P37, “PWH/B/1”)  were visually very similar to the 3 corresponding files in the Hard Disk (P50, ‘TSS/YCY/1”), ie the files in each pair with alias “Maths”, “Eng” and “Eng_ans”.

111.  PW13 was asked to explain the above findings.  He stated that he printed out 3 document files from P50 (ie the files in the TSS School Server “TSS/YCY/1”).  Each of these files was given an alias, ie Maths (P69 and P69A, pp 3527-3544), Eng (P70, pp 3582-3601)  and Eng-ans (P71, pp 3602-3621).  He then compared these files with the files he found in the USB (P37), ie P72, P73 and P74.

112.  PW13 discovered that:

(1)  the Maths files (P72 and P69)  in the TSS School Server (P50)  and the USB (P37)  were identical.

(2)  The Eng files (P73 and P70)  from the TSS School Server (P50)  and the USB (P37)  were very similar. Only one page was different (p 3690 and p 3594). Page 3690 was from the USB (P37), whereas page 3594 was from the School Server (P50 “TSS/YCY/1). The only differences between these 2 pages are at the top and bottom of these pages. In P70 (p 3594), the passage starts with “Dear Kim, My name is Tim. How are you?…”. In P73 (p 3690), the words “Dear Kim” were missing. At the bottom of the page of P70 (p 3594), the passage ends with “Your pen friend, Tim”. Those words were missing from P73 (p 3690).

(3)  The situation was similar with the Eng-ans files (P71 and P74)  from the TSS School Server (P50 “TSS/YCY/1”)  and the USB (P37). The Eng-ans files are the answer keys to the Eng files. For the file in the USB (P74), p 3710 is the answer key to p 3690. In the corresponding page in the TSS School Server (P71), the answer key is at p 3614. When PW13 compared pages 3710 and 3614, he saw that save that the words “Dear Kim” and “Your pen friend, Tim” were missing from p 3614, the contents of pp 3614 and 3710 were identical.

113.  To compare the files more scientifically, 2 methods namely ‘Hash value (SHA-256)” and “M/S Word metadata” were applied, with description below:

Hash value (SHA-256)

Each file has its own hash value (SHA-256). Hash value (SFA-256)  was calculated by performing specific mathematical equation by SHA-256 algorithm using the “content” of the file (ie regardless the filename, path, “Creation Time” or “Last Modified Time” in the storage media). If the hash values of two files are the same, the two files can be claimed to be exactly identical in contents.

MS Word metadata (“Author”, “Created”)

In each MS Word file, metadata “Author” (username of MS Office)  and “Created” (time of first creation)  are captured when the file was firstly created and saved by MS Word. These metadata would not change even the file was further edited. If these metadata between two files are the same, it is an indication that the two files originated from the same file.

(Allthe date/time values in this statement are in Hong Kong time zone or UTC+8)

114.  PW13 found that the details of the hash value and metadata comparison as follows:

Pair	File in the USB thumb nail seized from D2 (P37 “PWH/B/1”)	File in the Teachers Resource Folder of the TSS server (P50, “TSS/YCY/1”)	Hash value (SHA-256)  comparison	“Author” and “Created” Comparison
Maths	\Maths\2021P1第三學段考試_問題_Maths.docx (P72)	\TeacherResource\科組共用資源\2020-2021學習評估\2.3數學科\一年級\考試\ 2021第三學段考試_問題.docx (P69)	Match	Match
Eng	\Eng\P2 Reading and Writing\2021 P2 3rd R & W Exam.docx (P73)	\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\ 2021 P.2 3rd R & W Exam.docx (P70)	Not Match	Match
Eng_ans	\Eng\P2 Reading and Writing\2021 P.2 3rd R &W Exam_ans.docx (P74)	\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\ 2021 P.2 3rd R & W Exam_ans.docx (P71)	Not Match	Match

115.  For the pair “Maths” (P72 and P69), the files in the USB (P37, “PWH/B/1”)  and in the Hard Disk (P50, “TSS/YCY/1”)  had the same hash value.  This meant that they are exactly the same in content.  The metadata “Author” and “Created” of these 2 files were also the same.

116.  For the pairs of files “Eng” and “Eng_ans”, despite the different hash values, they have the same metadata for “Author” and “Created”, which indicated that the files in both the USB (P37, “PWH/B/1”)  and the Hard Disk (P50, “TSS/YCY/1”)  originated from the same source file.

117.  PW13 explained that the hash value test was only relevant to the contents of the files.  The metadata (ie the date and time of creation or modification would not be compared).  If the hash values of two files are the same, then the contents of the 2 files must be identical.  He discovered that the hash value of Maths files in the TSS School Server (P50)  and the USB (P37)  were identical.  This means that their contents were identical.  As for the Eng and Eng-ans files, the hash values of the files in the TSS School Server and the USB were different because the words “Dear Kim” and “Your pen friend, Tim” were missing from one of the files.

118.  As for the Metadata test, Microsoft Word would record the name of the user as the author whenever a document is created.  It would also record the time that such document was created.  These are called the “Author” and “Created”.  The record of the “Author” and the “Created” time would remain the same even if the document were subsequently altered or forwarded.  When PW13 compared the metadata of the Eng and Eng-ans files from the TSS School Server (P50)  and the USB (P37), he discovered that although there was a slight difference in the contents, the “Author” and “Created” were identical.  This means that these files all originated from the same file (p 6-7 of PW13’s report P78).

119.  For the Eng and Eng-ans files on the USB (P37), PW13 noted that the metadata screen capture shows that this file was last modified on 6 May 2022 at 09:15, whereas the Eng and Eng-ans files on the TSS School Server were last modified on 21 May 2021 at 0901 and 0918.  This means that these files on the TSS School Server were updated after the creation of the files on the USB (P37).  However, because the metadata was the same, the files on the USB originated from the file on the TSS School Server.

120.  PW13 was informed that the files under the “TeacherResource\” (P69-71)  of the TSS server “TSS/YCY/1 (P50)  were the file backups on 12 June 2021 of the File Server of Tak Shun School (“School File Server”).  Upon request of the ICAC, PW13 further studied the relationship between the USB (P37, “PWH/B/1”)  and the School Server.

Files in the USB were copied/moved from other media

121.  By looking into the “Creation Time” and “Last Modified Time” of the files in the USB (P37, “PWH/B/1”), PW13 found that:

Alias Assigned	File in USB thumb drive seized from D2 (P37 “PWH/B/1”)	Creation Time of File in the USB thumb drive seized from D2 (P37, “PWH/B/1”)	Last modified Time of File in the USB thumb drive seized from D2 (P37, “PWH/B/1”)
Maths	\Maths\2021P1第三學段考試_問題_Maths.docx (P72)	2021-05-06 12:17:49	2021-04-14 14:23:44
Eng	\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam.docx (P73)	2021-05-06 12:18:39	2021-05-06 09:15:36
Eng_ans	\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam_ans.docx (P74)	2021-05-06 12:18:39	2021-05-06 09:18:36

122.  PW13 explained that the “Creation Time” were later than the “Last Modified Time”. This showed that these files were originally stored in a media other than the USB (P37, “PWH/B/1”), and then moved or copied-and-pasted to that USB (P37).

123.  PW13 explained that normally, if a file were created on an USB and then subsequently modified, the last modified time would be later than the creation time.  When PW13 examined the 3 files on the USB (P37), he found that the creation time was later than the last modified time.  This happens when the files on the USB were copied onto the USB.  These files were not created on the USB.

Before File Creation in the USB: Files Access of School Server by username “kck”

124.  PW13 then examined the Windows Event Log of the School File Server (which were copied under the folder “\log\” of the TSS School server (P50 “TSS/YCY/1”).  He listed all the file access events of the 3 corresponding files at the School File Server files (ie P69-71), ranging from the first event to the event before the ‘Creation Time” of the files in the USB (P37, “PWH/B/1”):

Maths

File at School Server (P50)	Time of File Access at School Server	Accessed by Username (IP Address(es))
\TeacherResource\科組共用資源\2020-2021學習評估\2.3數學科\一年級\考試\2021第三學段考試_問題.docx (P69)	2021-04-14 13:14:10	ckh (10.84.177.10)
	2021-04-14 13:14:15 to 2021-04-30. 08:48:47	ckh (10.84.177.10; 10.84.176.12); 10.84.176.21
	2021-05-06. 10:08:43	kck (10.84.183.6)
	2021-05-06. 10:08:55	kck (10.84.183.6)
	2021-05-06. 10:08:58	kck (10.84.183.6)
	2021-05-06. 12:17:34	kck (10.84.183.6)
	2021-05-06. 12:17:47	kck (10.84.183.6)
File in USB (P37 “PWH/B/1”)	File Creation Time in P37 “PWH/B/1”
Maths\2021P1第三學段考試_問題_Maths.docx (P72)	2021-05-06. 12:17:49

Eng

File at School Server (P50)	Time of File Access at School Server	Accessed by Username (IP Address(es))
\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\2021 P.2 3rd R & W Exam.docx (P70)	2021-04-28. 11:16:30	mfc (10.84.177.55)
	2021-05-03. 08:01:53 to 2021-05-05. 14:08:06	mfc (10.84.177.55; 10.84.177.16;10.84.181.14)
	2021-05-06. 08:12:06 to 2021-05-06. 09:15:34	mfc (10.84.177.16)
	2021-05-06. 10:04:51	kck (10.183.6)
	2021-05-06. 10:04:53	kck (10.183.6)
	2021-05-06. 10:05:03	kck (10.183.6)
	2021-05-06. 11:50:53	mfc (10.84.177.16)
	2021-05-06. 12:18:37	kck (10.84.183.6)
File in the USB (P37 “PWH/B/1”	File Creation Time in P37
\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam.docx (P73)	2021-05-06. 12:18:39

Eng_ans

File at School Server (P50)	Time of File Access at School Server	Access by Username (IP Address(es))
\TeacherResource\科組共用資源\2020-2021學習評估\2.2 English\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\2021 P.2 3rd R & W Exam_ans.docx (P71)	2021-04-28. 11:16:30	mfc (10.84.177.55)
	2021-05-03. 08:01:51 to 2021-05-05. 14:08:00	mfc (10.184.177.55; 10.84.177.16; 10.84.181.14)
	2021-05-06. 08:16:46 to 2021-05-06. 09:18:34	mfc (10.184.177.16)
	2021-05-06. 10:05:30	kck (10.84.183.6)
	2021-05-06. 10:05:31	kck (10.84.183.6)
	2021-05-06. 10:05:33	kck (10.84.183.6)
	2021-05-06. 11:50:52	mfc (10.84.177.16)
	2021-05-06. 12:18:37	kck (10.84.183.6)
File in the USB (P37 “PWH/B/1”	File Creation Time in P37
\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam_ans.docx (P74)	2021-05-06. 12:18:39

125.  PW13 explained that the above showed that before the files were created in the USB (P37 “PWH/B/1”)  (ie 2 seconds), the corresponding files in the School Server were accessed by “kck” via IP “10.84.183.6”.

126.  PW13 explained that the above was to trace the source of the files on the USB (P37). The “Create” time of the USB files was the time that the files were copied onto the USB.  The “Create” times of these files were 12:17 and 12:18 (p 12 of PW13’s report P78).  He then checked the events log of the TSS School Server (P50).  The events log of the TSS School Server (P50)  would record the username, IP address and the time of access to the 3 files.  PW13 saw that the last person who accessed the Maths file prior to the creation time of the USB was “kck”.  The access date and time were 6 May 2021 at 12:17:34 and 12:17:47.  The USB file was created 2 seconds after such access.

127.  The situation was the same for the Eng files and the Eng-ans files.  The Eng file was in the Teacher Resource folder in the TSS School Server (P50).  The last person to access this file was “kck” on 6 May 2021 at 12:18:37.  The Eng file on the USB (P37)  was created 2 seconds after such access.  The Eng-ans file on the TSS School Server (P50)  was last accessed on 6 May 2021 at 12:18:37 by “kck”.  The corresponding file on the USB (P37)  was created 2 seconds after such access.

Files in the USB were created during USB connection with D1’s computer

128.  By examining the USB Connection History of D1’s computer (P33 “TSS/KCK/O/1”)  (Registry hive file:\Windows\System32\config\System; Registry key; USBSTOR)  using USBDeview v3.02, PW13 found that the USB (P37 “PWH/B/1”), volume serial no. “4AC83E4E”, Vendor ID=23A9 and Product ID = EF18, had been connected to D1’s computer (P33 “TSS/KCK/0/1”) :

Time	Event
2021-05-06 12:16:42	First Connect and mapped as “I:\”
2021-05-06 12:16:42	Last connect
2021-05-09 11:42:05	Last Disconnect

129.  PW13 explained that this showed that the USB (P37 “PWH/B/1”)  had remained connected to D1’s computer (P33 “TSS/KCK/O/1”)  from 2021-05-06 12:16:42 to 2021-05-09 11:42:05.

130.  More importantly, referring to the Creation Time of the files in the USB (P37 “PWH/B/1”,  “Maths”: 2021-05-06 12:17:49; “Eng” and “Eng_ans”: 2021-05-06 12:18:39), it showed that the files were moved or copied-and-pasted to that USB (P37 “PWH/B/1”)  when that USB (P37 “PWH/B/1”)  was still being connected with D1’s computer (P33 “TSS/KCK/O/1”).

After File Creation in the USB: Files Access of the USB by username “kck” via D1’s computer

131.  PW13 stated that Recent File Access Records captures information of the target files/folder at the time of access, including “who” (username), “when” (time of access”, “where” (volume serial no of the storage media which the target files/folder reside), and “Created Time/Last Modified time” of the target files/folder.  By examining the Recent File Access Records in D1’s computer (P33 ‘TSS/KCK/O/1”)  accessed by the username “kck” (JumpList:\Users\kck\AppData\Roaming\Microsoft\Windows\Recent\AutomaticDestinations\f01b4d95cf55d32a.automaticDestinations-ms)  using JumpListView v1.16 and X-ways v19.7:

Time of Access by “kck”	Target Fikes/Folder Clucked / Accessed	Volume Serial which Target resided
2021-05-06. 12:19:18	I:\Maths\	4AC83E4E
2021-05-06. 12:19:08	I:\Eng\	4AC83E4E
2021-05-06. 12:19:26	I:\Eng\P2 Reading and Writing\	4AC83E4E

132.  PW13 explained that the above information showed that:

(1)  the target folders accessed by “kck” resided in the USB (P37 “PWH/B/1”), as the volume serial “4AC83E4E” in the Recent File Access Records matched the volume serial of that USB (P37 “PWH/B/1”);

(2)  the drive letter “I:\” of the target folders and the access time by “kck” matched the USB connection history of the USB (P37 “PWH/B/1”) ;

(3)  the target folders were accessed by “kck” after the Creation Time of the corresponding files in the USB (P37 “PWH/B/1”);

(4)  the Created Time and Modified Time of the target folders captured in the Recent File Access Records matched those in the USB (P37 “PWH/B/1”)  as detailed below:

Recent File Access Records in D1’s computer (P33 “TSS/KCK/O/1”)

Time of Access by “kck”	Target Files / Folders Clicked / Accessed	Created Time of Target Folder	Last Modified Time of Target Folder
2021-05-06.  12:19:18	I:\ Maths\	2021-05-06   12:19:14	2021-05-06   12:19:16
2021-05-06   12:19:08	I:\Eng\	2021-05-06   12:19:02	2021-05-06   12:19:04
2021-05-06   12:19:26	I:\Eng\P2 Reading and Writing\	2021-05-06   12:18:39	2021-05-06   09:18:36

Corresponding folders currently in the USB (P37 “PWH/B/1”):

Folder Path in the USB (P37 “PWH/B/1”)	Created Time	Modified Time
\Maths\	2021-05-06   12:19:14	2021-05-06   12:19:16
\Eng\	2021-05-06   12:19:02	2021-05-06   12:19:04
\Eng\P2\Reading and Writing	2021-05-06.  12:18:39	2021-05-06   09:18:36

133.  PW13 explained that the above findings of the USB Connection History and the Recent File Access Records of D1’s computer (P33 “TSS/KCK/O/1”)  showed that the folders accessed via D1’s computer (P33 “TSS/KCK/O/1”)  by “kck” were the folders in the USB (P37 “PWH/B/1”).

134.  PW13 listed all the relevant events in chronological order:

Time	Alias	Event
2021-05-06 12:16:42	-	The USB (P37 “PWH/B/1”)  was connected to D1’s computer (P33 “TSS/KCK/O/1”)  and mounted as “I:\”.
2021-05-06 12:17:47	“Maths”	“\TeacherResource\科組共用資源\2020-2021學習評估\2.3數學科\一年級\考試\2021第三學段考試_問題.docx” at School Server accessed by “kck” via IP “10.84.183.6”
2021-05-06 12:17:49	“Maths”	“2021P1第三學段考試_問題_Maths.docx” file was created in the USB (P37“PWH/B/1”). （Initially the file was placed under the root of that USB (P37  “PWH/B/1”).
2021-05-06 12:18:37	“Eng” ‘Eng_ans”	“TeacherResource\科組共用資源\2021-2021學習評估\2.2Englush\P.2\Test Exam Folders\Test Exam Papers\3rd Exam\Reading and Writing\2021 P.2 3rd R & W Exam,docx” and “2021 P.2 3rd R & W Exam_ans.docx” at School Server were accessed by “kck” via IP “10.84,183.6”
2021-05-06 12:18:39	“Eng” ‘Eng_ans”	“2021 P.2 3rd R & W Exam,docx”, “2021 P.2 3rd R & W Exam_ans.docx”, along with parent folder “P2 Reading and Writing\” were created in the USB (P37 “PWH/B/1”. （Initially this folder was placed under the root of “PWH/B/1”.）
2021-05-06 12:19:02	“Eng” ‘Eng_ans”	“I:\Eng\” was created at “PWH/B/1”
2021-05-06 12:19:08	“Eng” ‘Eng_ans”	“I:\Eng\” was accessed at “PWH/B/1” by “kck” via D1’s computer (P33 “TSS/KCK/O/1”)
2021-05-06 12:19:14	“Maths”	“I:\Maths\” was created at “PWH/B/1”
2021-05-06 12:19:18	“Maths”	“I:\Maths\” was accessed at “PWH/B/1” by “kck” via D1’s computer (P33 “TSS/KCK/O/1”)
2021-05-06 12:19:26	“Eng” ‘Eng_ans”	“I:\Eng\O2 Reading and Writing” was accessed at “PWH/B/1” by “kck” via D1’s computer (P33 “TSS/KCK/O/1”)
2021-05-06 11:42:05	-	The USB (P37 “PWH/B/1”)  last disconnected from D1’s computer (P33 “TSS/KCK/O/1”)

135.  Based on the above events, PW13 was of the view that the activities took place in the following sequence:

(a)  The “Maths”, “Eng” and “Eng_ans” files were copied from the School Server by username “kck” to the USB (P37 “PWH/B/1”)  when the USB was connected with D1’s computer (P33 “TSS/KCK/O/1”) ;

- The “Maths” file was copied individually (Windows Event Log of School File Server at 2021-05-06 12:17:47)  and then pasted at root of the USB (P37 “PWH/B/1”)  after 2 seconds;

- The “Eng” and “Eng_ans” files were copied at the same time along with the parent folder “P2 Reading and Writing” (Windows Event Log of School File Server at 2021-05-06 12:18:37)  and then pasted at the root of the USB (P37 “PWH/B/1”)  after 2 seconds.

(2)  Two new parent folders (“I:\Maths\” and “I:\Eng\”)  were then created at root of the USB (P37 “PWH/B/1”). The “Maths” file was moved to “I:\Maths\”, while the “Eng” and “Eng_ans” files with parent folder “P2 Reading and Writing” were moved to “I：\Eng\”. The “Creation Time” and the “Last Modified Time” will not be changed by such “move” action in the USB (P37 “PWH/B/1”)

(3)  Afterward, these new parent folders in the USB (P37 “PWH/B/1”)  were further opened by “kck” when the USB (P37 “PWH/B/1”)  was still connected to D1’s computer (P33 “TSS/KCK/O/1” 2021-05-06 12:19:18 and 2021-05-06 12:19:26)

136.  PW13 testified that he looked at the USB (P37)  to see which computer was in connection with or related to the USB.  He could see the computers connected to the USB (P37)  from the history of computers.  The relevant files in the USB (P37)  were created on 6 May 2021 at 12:17 and 12:18.  PW13 saw that the USB (P37)  was connected to D1’s computer (P33 “TSS/KCK/1”)  at 12:16 on 6 May from D1’s computer connection record (para 14 of PW13’s report P78). In other words, the relevant files were created on USB (P37)  when that USB was connected to D1’s computer.  The USB (P37)  was connected to D1’s computer (P33)  until 11:42 in 9 May 2021.

137.  PW13 then looked at the access records by D1’s computer to the TSS School Server.  In the access record, he could see the path of the folder, i.e. the location, time and Drive ID of the file being accessed.  The path of the Drive ID is called the Volume Serial number.  The Volume Serial number of the USB is 4AC83E4E. From the recent file access record of D1’s computer (P33), PW13 could see that “kck” accessed the relevant files on the USB (P37)  after the relevant files were created on the USB (para 16 of PW13’s report P78).

138.  PW13 explained that he could also see other information in the Recent File Access Records of D1’s computer (P33).  He discovered that apart from the Volume Serial number 4AC83E4E, the creation time and last modified time of the files in the USB (P37)  were identical to the files accessed by “kck” with D1’s computer (P33)  (p 11 of PW13’s report P78).  His conclusion is that the 3 relevant files on the USB (P37)  were copied from the TSS School Server (P50)  by “kck” with D1’s computer (P33).

139.  PW13 further explained that a volume serial number is created whenever a USB is formatted.  The system would record the time of the formatting down to 1/100 of a second and convert that time into a chain of numbers and alphabets and would record this onto the USB.  When the USB is connected to a computer, the computer would also record this serial number.  In other words, unless there are 2 USBs which were formatted in exactly the same 1/100 of a second, the Volume Serial number of each USB is unique.

Findings in DLC’s computer

140.  To further investigate the subsequent activities regarding the USB (P37 “PWH/B/1”), PW12 Mr Cheung Ho-ching shared with PW13 the images of the computers seized from DLC (“DLC/YMH/18”, “DLC/YMH/19”, “DLC/YMH/22” and the USB external hard disk “PWH/O/10” (the DLC hard disk)  on 2 July 2021.

141.  By examining the USB connection history of one of DLC’s desk top computers, namely P41 “DLC/YMH/22” (Registry hive file:\Windows\System32\config\System; Registry key:USBSTOR)  using USBDeview v3.02, PW13 found that the USB P37 “PWH/B/1” (volume serial no. “4AC83E4E”, Vendor ID=23A9 and Product ID = EF18)  had been connected to “DLC/YMH/22” (P41):

Time	Event
2021-05-11 09:15:18	First Connect
2021-06-03 22:30:47	Last Connect
2021:06:03 22:31:42	Last Disconnect

142.  PW13 examined the Recent File Access Records in DLC’s desktop computer (P41 “DLC/YMH/22”)  accessed by username “Diligence” (JumpList:\Users\Diligence\AppData\Roaming\Microsoft\Windows\Recent\AutomaticDestinations\f01b4d95cf55d32a.automaticDestinations-Ms; 4293e440ad719476.automaticDestinations-ms)  using JumpList View v1.16 and X-ways v19.7:

Record Capture Time	Target File/Folder Clicked Accessed	Volume Serial which Target reside
2021-05-13 10:16:02	E:\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam.docx	4AC83E4E
2021-95-15 07:53:31	E:\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam_ans. Docx	4AC83E4E
2021-06-03 22:30:54	E:\Maths	4AC83E4E
2021-06-03 22:30:54	E:\Maths\2021P1第三學段考試_問題_Maths. Docx	4AC83E4E

143.  This showed that:

(a)  The target folders accessed by “Diligence” resided in the USB (P37 “PWH/B/1”), as the volume serial “4AC83E4E” in Recent File Access Records matched with the volume serial of the USB (P37 “PWH/B/1”);

(2)  The Created Time and Modified Time of Target files/folders in Recent File Records matched those in the USB (P37 “PWH/B/1”)  as follows:

Recent File Access Records in DLC’s

Time of Access by “Diligence”	Target Fike/Folder Clucked/Accessed	Created Time of Target Files/Folder	Last Modified Time of Target Files/Folder
2021-05-13 10:16:02	E:\Eng\P2 Reading and Writing\2921 P.2 3rd R & W Exam.docx	2021-05-06 12:18:39	2021-05-06 09:15:36
2021-05-15 07:53:31	E:\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam_ans.docx	2021-05-06 12:18:39	2021-05-06 09:18:36
2021-06-03 22:30:54	E:\Maths	2021-05-06 12:19:14	2021-05-06 12:19:16
2021-06-03 22:30:54	E:\Maths\2021\P1第三學段考試_問題_Maths.docx	2021-05-06 12:17:49	2021-04-14 14:23:44

The corresponding files/folders currently in the USB (P37 “PWH/B/1”)

File Path in the USB (P37 “PWH/B/1”)	Created Time	Last Modified Time
\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam.docx	2021-05-06 12:18:39	2021-05-06 09:15:36
\Eng\P2 Reading and Writing\2021 P.2 3rd R & W Exam_ans.docx	2021-05-06 12:18:39	2021-05-06 09:18:36
\Maths\	2021-05-06 12:19:14	2021-05-06 12:19:16
\Maths\2021P1第三學段考試_問題_Maths.docx	2021-04-06 12:17:49	2021-05-06 14:23:44

144.  The above findings of the USB Connection History and Recent File Access Records of DLC’s computer (P41 “DLC/YMH/22”)  showed that the files and folder accessed by DLC’s computer (P41 “DLC/YMH/22”)  were those in the USB (P37 “PWH/B/1”), which were the same as those accessed by D1’s computer (P33 “TSS/KCK/O/1”).

145.  PW13 concluded that after disconnection from D1’s computer (P33 “TSS/KCK/O/1”), the USB (P37 “PWH/B/1”)  was further connected to DLC’s computer (P41 “DLC/YMH/22”)  and the same files were accessed by the username “Diligence”.

146.  PW13 explained that he also examined the computers seized from DLC to see if they had any relationship with the USB (P37).  He discovered that one of the DLC computers (P41 “DLC/YMH/22”)  was connected to the USB (P37).  He also saw that a user “Diligence” used this DLC computer (P41)  to access the relevant files on the USB (P37)  on 13 May, 15 May and 3 June.  The Creation time and the Last Modified time of the files accessed by “Diligence” on this DLC computer (P41)  matched the Creation and Last Modified times of the relevant files in the USB (P37).  In other words, the USB (P37)  was connected to this DLC computer (P41)  and “Diligence” accessed the relevant files.

Mobile Phone Seizures

147.  On 15 June 2021, Officer CHU handed to PW13 an Apple mobile telephone, P31 “KCK/O/1” (D1’s telephone).  On 16 June 2021, Officer CHU handed to PW13 another Apple mobile telephone P35 “PWH/3” (D2’s telephone).

148.  PW13 then used UFED Physical Analyzer by Cellebrite to extract data from D1 and D2’s telephone (P31 “KCK/O/1” and P35 “PWH/3 respectively).  Any subsequent examination will be done on the extracted data in order to prevent the original mobile telephone seizures from being tampered with and hence the data integrity can be preserved.

149.  On 9 July 2021 and 20 July 2021, PW13 examined the WhatsApp conversations from extracted data of D2’s telephone (P35 “PWH/3”).  PW13 produced all the selected messages (including attachments)  between “Henry” (85291918477@s.whatsapp.net and Wing Pang (the owner of the telephone 85293467714@s.whatsapp.net)  from 2019-10-16 08:33:35 to 2020-01-07 16:44:46 in hard copies, and the audio files in these messages were copied to the DVD (S/N: DW-00009330)  with exhibit ref “PWH/3/WS/91918477/Audio”.  The hardcopies of these WhatsApp messages and their English translations were produced as P68 and P68A respectively (pp 3363-3436, pp 3459-3499).  On 9 July 2021, the jpg files within these WhatsApp messages were handed over to Officer CHU with separately assigned exhibit numbers.  The Extract Report of the messages between Henry and Wing Pang together with its English translation were produced pursuant to section 65B of the Criminal Procedure Ordinance respectively as P68B and P68C.

150.  On 13 September 2021, PW13 examined the WhatsApp conversations between “Mother” (85294668859@s.whatsapp.net)  and the owner of the mobile telephone (Henry Kwok 85291918477@s.whatsapp.net)  from extracted data of D1’s telephone (P31 “KCK/O/1”)  and produced all the messages (including attachments)  selected from 2017-06-04 17:56:21 to 2029-02-26 12:44:58.  These WhatsApp messages together with their English translations were produced respectively as P66 and P66A (pp 3297-3351). PW13 also produced 2 image files from the extracted data of D1’s telephone (P31 “KCK/O/1”). These images and their English translations were produced respectively as P67 and P67A (pp 3352-3362)

151.  The above WhatsApp messages are set out in dialogue boxes.  At the top of each dialogue box is the account number of the message sender. Each account is formed from the registered telephone number.  The telephone number forms part of the account number.  At the bottom of each box are the date and time the message was sent.  If an image were sent by WhatsApp, there would be an image icon in the message (eg p 3363).  In each extraction report, the enlarged image follows the message (eg pp  3367-3379).

152.  At p 3303, there was a message with an attachment but under the message, the size of the attachment was “0”.  This means no corresponding image or document could be found.  It was possible that this image has been deleted.

153.  Under cross-examination, PW13 explained that there are 2 types of “Creation” times:

(1)  The creation time of the contents of a document. When you create the contents of a document, the Creation time of that content is recorded. Once the content is created, the first creation time remains the same no matter where it is placed or how many times it is forwarded or copied. This is the Creation time PW13 referred to in p 5 of his report (P78);

(2)  When a file is created on an USB, the time that the document is saved or created on the USB is the creation time of that file on the USB. For example, if the Judge copies a file on her computer and gives it to her clerk and the clerk opens the file on his computer 30 minutes later, then the creation time of that file on the clerk’s computer would be the time he opened it, ie 30 minutes after the document was created by the Judge. This is the creation time referred to in para 12 p 8 of PW13’s report (P78).

154.  In the present case, when the USB (P37)  is connected to D1’s computer and files are generated on the USB the creation time is the time on D1’s computer, not the time on the TSS School Server.

155.  To check the Volume Serial number of a USB drive, you simply plug that USB into a computer and type command “VOL” and you will see the Volume Serial number of that USB.

156.  PW13 also explained that the TSS School Server was backed up on a daily basis. The Hard disk of the TSS School Server (P50)  was an image of the contents of the TSS School Server on 12 June 2021.

157.  PW13 explained that the web version of the WhatsApp application can be installed on a computer.  However, the web version basically only displays what is on the telephone of the WhatsApp account holder.  Only one telephone can be used to operate one WhatsApp account at any one time.  If the WhatsApp is linked to a computer, you can see the messages on the computer.  However, those messages are actually sent through the telephone and not through the computer.  The computer only shows an image of what is on the telephone.  WhatsApp messages can be deleted on the computer, if messages were deleted on the computer.  Because the WhatsApp application is operated through the telephone, the messages on the telephone would also be deleted.  If the sender only deletes the message for himself/herself, the message would disappear from the sender’s telephone but would remain on the telephone receiving the message; in such an event, there would not be a box showing that the message had been deleted on the sender’s telephone.

158.  PW13 admitted that he assumed that the IP addresses were the IP addresses of individual computers in paragraph 13 of his report (P78).  His conclusions in the report would not change even if those were the IP addresses of routers.  The IP addresses were only additional information; his main concern was the username.

159.  Technically, it is possible for different IP addresses to be assigned to one computer.  It depends on the set up of the system.  However, this is not usual.  Further, if an IP address was used by one computer, the router would assign the same IP address to the same computer upon further use to avoid 2 computers having the same IP address.  If a router is set up to be used in one room, only computers inside that room would be assigned that IP address.  PW13 discovered that the Maths file in the TSS School Server (P50)  was accessed by “kck” on 5 occasions on 6 May 2021.  The IP addresses was the same on each occasion.  The fact that the IP addresses can be dynamic would not change PW13’s findings.

Leung Sau Ching

160.  The parties agreed to produce the witness statement of Leung Sau Ching as P79 pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221.  Leung Sau Ching is an Assistant Investigator of the ICAC.  In essence, she stated that she transcribed the audio files in the WhatsApp messages of D1’s telephone.  The transcript of these WhatsApp messages together with their English translations were produced as P68B and P68C respectively (pp 3437-3525).

PW14

161.  Ms Chan Ka Hei (PW14)  joined TSS as a social worker in September 2016.  She became a teacher in TSS in 2017.  In the school year 2020/2021, she taught Primary 1 Maths and was responsible for setting the Primary 1 Maths exam paper.

162.  When setting this exam paper, PW14 obtained a digital copy of a previous exam paper from the Teachers Resource Folder in the TSS School Server and used it as a formatting template.  She then substituted the previous questions with her own questions on the electronic template.  There is a database from the publisher called Esmart 2.0.  This database contained examples of exam questions.  PW14 obtained mathematical diagrams from the database but changed the numbers in the question to set her own question. 

163.  After setting the exam questions on the electronic template and on 14 April 2021, PW14 saved the draft examination paper on her computer as well as in the Teachers Resource Folder under “2020/2021 Term 3 exam”.  Because the draft examination paper was not yet complete, PW14 continued to make changes to it on the electronic template with her desktop computer after 14 April 2021.

164.  After first draft of the examination paper was completed, PW14 printed a copy of the draft and circulated it amongst the school teachers.  The draft was first given to the 3 other Maths teachers in Primary 1.  PW14 amended the draft examination paper on the electronic copy after receiving comments from these Maths teachers.  After amendments, the final version of the examination paper was saved in PW14’s desktop computer and the Teachers Resource Folder of the TSS School Server.  She confirmed that P69 (pp 3527-3544)  was the first draft of the 2020/2021 Primary 1 Maths Term 3 examination paper.  P72 (pp 3623-3639), the Maths examination paper extracted from the USB (P37)  was the same as P69.

165.  PW14’s username on the TSS School Server is “ckh”.

166.  PW14 has heard of a Tutorial Centre called DLC.  She had no connection or relationship with any staff in DLC and has never divulged any examination papers to any outside parties.

167.  Under cross-examination, PW14 agreed that it was TSS’s policy not to upload examination papers onto Teachers Resource Folder of the School Server prior to the actual examination.  This policy was communicated to the school teachers.  The reason for this policy was to restrict access to the draft examination to those involved in the drafting.  All staff would have access to the draft examination paper if it were uploaded onto the Teachers Resource Folder.  PW14 explained that this was the first time that she was asked to set an examination paper.  At the time, she was not aware that she was not allowed to upload the drafts onto the Teachers Resource Folder of the TSS School Server.  When she was drafting this examination paper on the electronic template, she thought that she was saving the drafts on her own desktop computer.  She did not realize that the drafts had been uploaded to the Teachers Resource Folder of the TSS School Server at the same time.  After the examination took place, colleagues told PW14 that she could upload the examination paper onto the Teachers Resource Folder.  When she opened the Teachers Resource Folder, PW14 realized that she had inadvertently uploaded the drafts of this examination paper onto the TSS School Server since April 2021.  She then removed the drafts from the Teachers Resource Folder.  When the ICAC came to TSS to investigate the present case, she realized that the date she uploaded the first draft of this examination paper onto the Teachers Resource Folder was 14 April 2021.  She knew that she uploaded the draft examination paper onto the TSS School Server because she was the only person who had a soft copy of the examination paper.

168.  PW14 agreed that in 2017, apart from being a teacher, she was also the Assistant Primary Schoolmistress.  As a senior member of school staff, she had access to the school office after office hours and over the weekends.  She was aware of a technician called “Sing Shuk” who was responsible for repairs within the school.  PW14 knew that a janitor called Ms Lam Lai Ho would arrive at school early but PW14 did not know whether Ms Lam had ever gone inside the school office.  There was a night watchman but PW14 does not know whether he had access to the school office.  The janitors and night watchman all had a smart card and could enter the school office.  PW14 does not recall any discussions in school meetings about disparaging remarks about D1 on social media.  She stated that D1 was very popular in the school community.

PW15

169.  Mr Ma Fung Cho (PW15)  joined TSS as an English teacher in September 2019.  In the 2020/2021 school year, PW15 was teaching Primary 2 and Primary 3 students and was responsible for setting the Primary 2 Term 3 English examination paper.

170.  This examination paper was first drafted in electronic form.  He saved the first draft examination paper in the Teachers Resource Folder of the TSS School Server.  He subsequently made amendments to this draft examination paper on the copy saved on the TSS School Server.  P70 (pp  3582-3601)  is a draft of this examination paper PW15 saved on the Teachers Resource Folder of the TSS School Server.  PW15 was given a copy of P70 and P73 (pp 3678-3697).  He marked the differences between P70 and P73, which was produced as P70A.  P70 and P73 were the same except:

(1)  For E under “Writing Items” in the 3^rd column of the top table of P70 (p 3582), the total marks allocated was 25%, whereas in the same table in P73 (p 3678), the total marks allocated was 24%;

(2)  For F under “Writing Items” in the 3^rd column of the top table of P70 (p 3582), the total marks allocated was 15%, whereas in the same table in P73 (p 3678), the total marks allocated was 16%;

(3)  In P70, question 4 (p 3586), the word “can’t” was typed in bold and was underlined, whereas in P73, the same question (p 3682), the word “can’t” was not in bold or underlined;

(4)  In P70, under the box, the words “complete sentences” was typed in bold and underlined (p 3590). In P73, for the same question the words “complete sentences” was not typed in bold or underlined (p 3686);

(5)  In P70 (p 3592), the first 2 sentences in the box were “Tim: Good Morning Ms Ng” and “Ms Ng: Good Morning Tim”; the last sentence was “Ms Ng: Okay! Enjoy your reading!”. In P73 (p 3688), the above mentioned sentences were missing;

(6)  In P70 (p 3594), the first sentence was “Dear Kim” and the last sentence was “Your pen friend Tim”. Those 2 sentences were missing in P73 (p 3690);

(7)  In P70, under paragraph 2 (p 3596), there were only 3 questions. In P73, under paragraph 2 (p 3692), there were 4 questions. The missing question was “Can you still go there?”;

(8)  In P70, the last word of the question at p 3582 was “fruits”. For the same question in P73, the last word of the same question at p 3678 was “fruit”.

171.  PW15 confirmed that P71 (pp 3602-3621)  is the answer key to one of the drafts of the 2020/2021 Primary 2 3^rd Term English examination paper.  He was given a copy P71 and he marked the differences between P71 and P74 (pp 3698-3717).  The copy marked by PW15 was produced as P71A.  Basically, P71 and P74 were the same, save for the following differences:

(1)  In P71 p 3608, there were 4 questions. The acceptable answers for question 3 were “19^th June // 19^th of June // 19 June. In P74 p.3704, there was only 1 acceptable answer to the same question , ie 19^th June;

(2)  In P71 p 3608, the acceptable answer to question 4 was “Buy a present for Penny”. In P74 p 3704, there were 2 acceptable answers, ie Buy // Buying a present for Penny;

(3)  At the bottom of P71 p 3610, it says “Text and questions by MA”. At the bottom the same page in P74 p 3706, those words were missing;

(4)  In P71 p 3616, there were 3 questions under paragraph 2. The 2^nd question was “How does your family feel?”. The 3^rd question was “What does your dad want to do?”. In P74 p 3712, the order of those two questions were reversed;

(5)  In P71 p 3602, the last word of the question was “fruits”. In P74 p 3698, the last word of the same question was “fruit”;

(6)  In P71 p 3602, the total marks allocated to E under “Writing Items” was 25%. In P74 p 3698, the total marks allocated to E under “Writing Items” was 24%;

(7)  In P71 p 3602, the total marks allocated to F under “Writing Items” was 15%. In P74 p 3698, the total marks allocated to E under “Writing Items” was 16%.

172.  PW15’s username to log into the TSS School Server is “mfc”.  He has never heard of DLC before he gave his witness statement to the ICAC.  He has no connection or relationship with any DLC staff and has never divulged any examination papers to any outside party.

173.  PW15 stated that he did not know that TSS had a policy under which he was not allowed to upload draft examination papers to the TSS School Server prior to the examination.  He does not have a hard copy of the teachers’ manual and does not know whether there was a soft copy on the TSS School Server.  He has never read the TSS teachers’ manual.

174.  PW15 agreed that a hard copy of the draft examination papers was circulated to the teachers involved.  He denied that he was told that the reason for circulating hard copies was to limit the staff who could see the drafts.  He does not recall PW2 had ever mentioned such policy at staff meetings.

175.  PW15 denied that this would make the circulation of hard copies of the draft examination paper redundant.  He explained that the circulation of hard copies was to enable the other teachers to write their remarks or comments.  Each teacher would use a different pen or pencil and the circulation of hard copies for comments would encourage discussion amongst the teachers.  However, PW15 agreed that all teachers would see the draft examination papers if they were uploaded onto the Teachers Resource Folder.  He had uploaded the draft examination paper onto the Teachers Resource Folder for convenience.  He assumed that all the other teachers had integrity and was not aware of the potential risk of the examination questions being leaked until the ICAC came to TSS for investigation of the present case.  He now realizes that he had made a mistake in uploading the draft examination paper onto the TSS School Server.

176.  PW15 was also responsible for the drafting of quizzes.  These draft quizzes were also circulated by hard copies.  Prior to the present case, PW15 also made the same mistake of uploading these quizzes onto the Teachers Resource Folder of the TSS School Server.  After the quizzes are finalized, PW15 would print out a hard copy.  The hard copy would be placed in a tray and they would receive the printed copies in about 2 days.

177.  PW15 agreed that he was also responsible for the students’ visual arts work.  The Primary 5 grades for this work formed part of the EDB’s assessment for allocation of secondary places.  In 2020, the visual arts works of the whole class went missing.

178.  A number of Defence exhibits were produced during the cross-examination of PW6 and PW7, namely:

(1)  A screen capture of PW6’s WhatsApp profile picture (D2-1);

(2)  A screen capture of D2’s WhatsApp messages with PW6 (D2-2 and D2-2A);

(3)  A photo of D2 taken at DLC (D2-3 and D2-3A);

(4)  A screen capture of PW7’s WhatsApp profile picture (D2-4);

(5)  A screen capture of D2’s WhatsApp messages with PW7 (D2-5 and D2-5A).

The Defence Evidence

D1

179.  D1 was recruited as a TSS teacher in September 2004.  On 1 September 2013, he was appointed as the Principal of TSS.  D1 and D2 are good friends.

180.  On 24 July 2017, there was a transfer of HK$420,000 from D1’s joint account with his mother to D2’s account.  D1 stated that this was a personal loan to D2.  D2 asked for this loan on 22 July 2017.  D1 wanted to help D2, who was his friend but he did not have sufficient cash flow.  D1 knew that his mother had funds but thought that his mother would not lend money to a third party.  His mother would only extend the loan to him if she believed that the loan was related to D1’s profession.  Because of the urgency of the loan, D1 lied to his mother that he was going to invest in a tutorial centre.  In fact, he had no idea how D2 would utilize the loan.  Subsequently, his mother asked D1 about the tutorial centre, so he had to continue lying to his mother.  D1 denied that he ever had any financial interest in DLC.  He told D2 that the interest free loan of $420,000 had to be repaid in full even if her business failed.

181.  In 2017, PW1, the School Supervisor, Dr Peter Herbert received an anonymous complaint about D1, the 2 vice principals and the PE Panel Chair sending a flower arrangement to DLC.  PW1 asked D1 about this.  D1 explained that the flower arrangement was sent to DLC after he discussed it with those 4 colleagues and had the approval of the former School Supervisor, Mr Chan Wing Kin.  At the time, Mr Chan Wing Kin suggested that the flower arrangement should be sent by D1 and his colleagues in their personal capacity without mentioning their connection with TSS.  D1 then acted according to those suggestions.

182.  D1 agreed that he had submitted declarations of conflict of interest to TSS but had never mentioned his relationship with D2 (P27 pp  1233-1242). He thought that he had already declared his relationship with D2 when he explained about the flower arrangement.

183.  D1 also admitted that he never declared the “personal loan” of $420,000 to the school.  According to his understanding, the declaration form only related to the acceptance of advantages.  He understood that friendships involving the acceptance of advantages had to be declared. Many TSS parents conducted businesses and the teachers knew these parents.  None of the teachers declared their friendship with these parents in their annual declarations forms of conflict of interests.  If all friendships have to be declared, it would be very burdensome and difficult and all the teachers would be in breach of the policy.  Since he was only friends with D2 and he was not accepting any advantages from D2, he did not declare the “loan”.  He denied that he had deliberately failed to disclose his relationship with D2 to PW1, the School Supervisor.

184.  D1 agreed that there was a policy not to upload the examination papers onto the Teachers Resource Folder of the TSS School Server prior to the actual examination.  This policy was communicated to the staff during regular meetings. PW2 would also remind the staff during short meetings.  PW15, Mr Ma should have a teachers’ manual which sets out this policy.

185.  D1 stated that the draft examination papers may be handed to him directly or left in a tray outside his office.  The final version of the draft examination papers for Primary 5 2021 were handed to D1 by PW6 but he does not remember whether they were handed to him personally.  Usually PW6 would place them in the tray outside D1’s office.

186.  After he read the draft examination papers, D1 would pass them back to PW6, the Vice Principal. D1 does not recall whether he handed the draft examination papers to PW6 personally.  Usually, he would put them in a tray outside his office and a janitor would collect them.  In urgent situations, D1 would ask a clerk to hand them to PW6.

187.  After the examination papers were finalized, they would be kept in a locked cabinet.  Ms Wing Yee Ling, the school clerk had the only key to this cabinet.

188.  D1’s office was also inside the School Office.  There were 2 meeting rooms inside the School Office but they were often occupied.  In that event, D1 would allow other staff to use D1’s office for meetings. 

189.  The door to D1’s office was always kept open.  It was never locked.  Teachers, clerks, janitors and the Supervisor would all have access to D1’s office.

190.  D1 has a computer but he was not the only person to use that computer.  D1’s secretary, the Vice Principal, some of the senior teachers and the technicians all had access to his computer.  The login username to this computer was D1’s initials and the default password was the school telephone number.  D1 has never changed this password.  For convenience, D1 never logged out of his computer.  He has given his username and password to clerks, the vice principals, senior teachers and technicians.  He gave them to his secretary because she had to help D1 with work.

191.  There is a router in D1’s office.  Anyone using D1’s office for meetings could use this router.  On occasions, colleagues had problems with their WiFi connection and he would share his WiFi with them.

192.  D1 confirmed that he has seen some WhatsApp messages on D2’s telephone.  He denied that he has ever sent any TSS quizzes or divulged any examination papers to D2. He has only sent the exercises database to D2 for her reference.

193.  D1 stated that he linked his WhatsApp account to the computer in his office with the assistance of the TSS IT technician.  D1’s telephone was not operating properly when it was seized by the ICAC.  The telephone heated up abnormally all the time and D1 often heard voices of third parties during telephone conversations.

194.  D1 stated that previously there were already problems with examination papers and quizzes at TSS.  In April 2021, the school publisher supplied a database version 2.0 to TSS.  A teacher leaked his/her password by accident and a Primary 4 student shared the database.  On one occasion, the English and Chinese folders in the Teachers Resource Folder went missing.

195.  Parents were allowed to inspect Examination papers after the examination.  On one occasion, the school discovered that one of the parents used a pen-shaped camera to take photographs of the examination papers.

196.  In the present case, D1 understood that his login username and password were used to access the relevant examination papers.  D1 stated that there was a possibility that someone wanted to implicate him in this matter.  After he was appointed as the School Principal in 2013-2014, the IMC wanted to promote TSS as an all boys’ school because many parents thought that TSS was a co-education school.  This involved a lot of promotional work and some colleagues were unhappy with the increased workload.  D1 also discovered that there were many disparaging remarks about him on social media.  These were brought up and discussed during school administrative meetings.

197.  D1 denied that he was aware of the policy in respect of the conflict of interests since he became a TSS teacher in 2004.  He subsequently admitted that he was aware of the policy.  He asserted that the policy only related to the acceptance of advantages, which included interests other than money.  He agreed that an example of conflict of interests was anything that might influence or appear to influence the performance of his duties (p 325).  He was very conscious about avoiding a conflict of interests by accepting advantages.

198.  D1 admitted that he had purchased a watch from a shop owned by a TSS alumnus.  He explained that he did not think that there was any conflict of interest because the student had already graduated and he received no discount for the watch.  However, he agreed that in certain circumstances, it may appear to others that he has received a favour from the alumnus’ parent.  He spoke about purchasing this watch in the video recorded interview (P32B, p 1891).  He reported the purchase of this watch to the Supervisor.  He stated that he did not report this matter in the declaration form.

199.  He admitted that he was earning about HK$60,000 per month in 2017 and HK$420,000 was a very substantial amount to him.  He did not have HK$420,000 and had to borrow from his mother.  He then admitted that he had asked D2 about the purpose of the “loan” and he knew that those funds would be used for the operation of DLC.  It never occurred to him that this may give rise to a conflict of interests and it never occurred to him to seek advice from PW1 in respect of the same.

200.  In 2018, officers came to TSS to investigate D1, namely the divulgence of TSS examination papers to DLC.  The question of the close relationship between the staff of TSS and D2 was also discussed.  These were very serious matters and the investigation should be made known to the IMC.  However, D1 never reported the matter to the Supervisor, PW1.

201.  D1 asserted that he was concerned about the security of the School Server but admitted that he allowed everyone access to his computer, with which they could access information on the School Server.

202.  D1 agreed that 11 sets of quizzes and examination papers were sent to D2 by WhatsApp from D1’s telephone.  D2 has never asked him why he sent such messages.  Although the USB was inserted into his computer for over 3 days, he did not notice it.

203.  In 2017, D2 gave D1 eight to ten pieces of clothing and he passed them to PW2.

Analysis of Evidence

Principles

204.  This is a criminal court.  I remind myself that the Prosecution bears the burden of proving each element of the offences beyond all reasonable doubt.  If there were any reasonable doubt, the benefit of that doubt goes to the Defendants.

205.  Both Defendants have a clear record.  I remind myself that they are more likely to tell the truth and less likely to commit an offence.

206.  Both D1 and D2 have given video recorded cautioned interview to the ICAC. D1 has also elected to give evidence. I remind myself that admissions by D1 is not evidence against D2 and admissions by D2 are not evidence against D1.

The Prosecution Evidence

207.  The evidence of PW1 and PW2 was not in dispute.  Although they were cross-examined, the questions were only for clarification.  Their evidence was clear, direct and consistent with the TSS Administration Guide and the EDB’s School Administration Guide.  I found them to be honest and credible.  I accept their evidence.

208.  The evidence of PW3 and PW4 were not in dispute.  The Defence only sought to clarify certain matters from these witnesses.  Their evidence was clear and direct.  I found them honest and credible and I accept their evidence.

209.  PW5’s evidence was also not in dispute.  She was not even cross examined.  I found her to be honest and credible.  I accept her evidence. 

210.  Although there was extensive cross examination of PW6, it does not appear from D1’s submissions that D1 is relying on her evidence. Her evidence in respect of the procedure of setting examination papers was consistent with that of the other prosecution witnesses, as well as D1. Her evidence was clear and direct. She was unshaken under cross examination. I found her to be a credible and reliable witness. I accept her evidence.

211.  The evidence of PW7 to PW12 was basically not in dispute.  I found them honest and credible.  I accepted their evidence.

212.  PW13’s evidence was not seriously challenged.  It was simply suggested to PW13 that the Creation date of the relevant files in the USB may be wrong.  PW13’s evidence was clear and direct.  He was unshaken under cross-examination.  I found him honest, reliable and credible.  I accept his evidence.

213.  PW14’s evidence was basically not in dispute.  I found her honest and credible.  I accept her evidence.  PW15’s evidence was also not seriously challenged.  It was only suggested to him that the uploading of the draft examination paper onto the TSS School Server was in breach of school policy.  I found him honest and credible.  I accepted his evidence.

D2’s Video Recorded Interviews

214.  D2 gave 2 video recorded interviews to the ICAC. The certified English translations of the transcripts of these interviews were produced as P36B and P38B.

215.  I do not accept the explanations given by D2 in her video recorded interviews. Her explanations are illogical and contrary to undisputed evidence. There are too many examples to enumerate. The most salient examples are as follows:

(1)  In her video recorded interviews, D2 alleged that she was friends with D1 (P36B counters 773-777). She denied that D1 was ever her lover (P36B counters 893-898). This was wholly contrary to undisputed evidence:

(a)  There is no dispute that D1 and D2 went on holiday together every year (P17; P36B counters 1747-1951)

(b)  D1’s Personalized Octopus Card was registered for D1’s access to D2’s residence (P29, P76, para.15);

(c)  The $420,000 used by D2 to pay for the purchase of her shareholding in DLC came from D1 (P76, paras.19-22);

(d)  In D2’s telephone, the ICAC found audio recordings of a conversation between a male and female. There is no dispute that the male was D1 and the female was D2:

D1	D2	Reference
Hello, 我而家出去開會先，聽日再同你、同你傾，係嘞。咁呀，因為而家出去開會都會搞得夜啦。係嘞，聽日再同你傾。聽晚應該冇問題㗎，喺你嗰度即係 stay，但係星期誒，可能聽日帶定啲衫喎，係嘞，睇下點，我星期日就係可能會入一，會入，即係去一去個camp嗰度呢，去支持啲同學再返出嚟啦，係囉。 Hello, I am now going out for a meeting and will talk to you, to you again tomorrow, right. Well, since (I)  am going out for a meeting now,  it will be pretty late afterwards, right. (I)  will talk to you tomorrow. It should be al-right, tomorrow night at your place, i.e. stay. However, on, er - maybe some clothes will be brought along tomorrow. Right, will see. On Sunday I will probably go, go, that is, go to a camp for a bit to support the students and then come back, right.		P38B counters 180，182
	喂， sorry，頭先剛才忙咗一輪呀，係呀，咁樣囉。喂，okay呀，我、你誒，要着啲乜嘢衫呀，我屋企應該有㗎，你同我夾一夾先。咁你唔使特登拎過嚟囉誒，西裝啦恤衫，我係有嘅，咁如果你話casual，你有件T恤嘅， Armani T恤，係嘞，有嘅咁樣囉，咁你睇睇你自己想着啲咩嘢衫啦，係嘞，okay，我洗乾淨晒㗎嘞，全部你嘅衫。 Hey, sorry, (I)  was busy just now. Right, that’s that. Hey, that’s okay for me. What kind of clothes do you, er, have to wear? There should be (some)  at my place. You and I can talk about that first. Then you don’t need to bring them over. Er, I have suit/s (and)  shirt/s. Well, if you want something casual, you have T-shirt/s, Armani T-shirt/s. Yes, these are here. Well, you think about it and see what you want to wear, right, okay(?)  I have already washed all your clothes.	P38B counter 183

(e)  In other words, D1 was going to spend the night with D2. D1’s clothes were kept in D2’s residence and D2 washed D1’s clothes for him.

(f)  Another audio recorded conversation dated 11 June 2022 was found by the ICAC in D2’s telephone. D2 admitted that the male voice was D1 (P38B counters 200-201):

D1	D2	Reference
你知你個形象，係補習社嘅形象係幾sensitive㗎啦，第二件事呢，就係誒，佢係，因為佢已經好早前畫咗幅畫俾我，亦都係放落校長信箱寫咗兩次信俾我㗎啦，咁就係一 dog 嘅盧亦晨呀，喺荃灣西海之戀啊，係嘞。咁但係佢好好嘅，咁呢佢就話嚟接我嘅咁樣樣囉，係嘞。 You know that your image - how sensitive the image of the learning center is. The second thing is, er, he/she - because he/she already drew me a picture long time ago, which was also dropped into the mailbox of the Principal. (He/She)  has written two letters to me. Well, (he/she)  is Lo Yik-sen (transliteration)  of “1 dog” (translate note 1D)  who lives at Ocean pride in Tsuen Wan West, right. But (he/she)  was very nice and said (he/she)  would come over and pick me up. That’s it, right.		P38B counter 197
	哦，嘩！仲要去到荃灣呀，okay, 咁係囉，比下面啦，…（聽不清），okay，得，收到。咁你係囉，聽日自己各自去吖，係呀。不過我問下咋，我都唔諗住去㗎，因為我聽日呢都要返工㗎，聽日上晝都有啲學生嚟㗎，係嘞。  I see. Jeez, (you)  even need to go to Tsuen Wan. Okay, right, pass it down … [inaudible] okay, alright, copy that. Well, you, right, go separately tomorrow, right. However, I was just asking, and I did not intend to go because I need to work tomorrow. I have some students coming over tomorrow morning, right.	P38B counter 198
我而家出去開會先，聽日再同你、同你傾，係嘞。咁呀，因為而家出去開會都會搞得夜啦，係啦。 I am now going out for a meeting and will talk to you, to you again tomorrow, right. Well, since (I)  I’m going out for a meeting now, it will be pretty late afterwards, right.		P38B counter 199

(g)  During the search of D2’s residence, the ICAC found items which clearly belongs to D1:

(i)  D1’s membership cards of the Hong Kong Professional Teachers’ Union for the years 2019/2020 and 2020/2021 (P36B counters 19-24); and

(ii)  In D2’s bedroom, a HSBC advice regarding D1’s bank account which showed that HK$30,000 cash was deposited into D1’s account.

(2)  It was evident from the above that D1 and D2 were more than friends. They were in an intimate relationship.

(3)  There is no dispute that during the search of DLC in D2’s presence, the ICAC seized 9 sets of TSS examination papers and a purple hard disk (P36B counters 47-56). The TSS examination papers were stored inside the purple hard disk. They were printed out by the ICAC and shown to D2 during the interview (P36B counters 1041-). They included:

(i)  “Tak Shun School 2017-2018 Second Term Exam Speaking” (PWH/O/1);

(ii)  File name ‘17-18 Mathematics Examination 2^nd Term B”. On the examination paper, the title was “Tak Shun School 2017-2018 2^nd Term Examination Mathematics” (PWH/O/2);

(iii)  File name “17-18 General 3^rd Term Test Q”. The examination paper title was “TSS 2017-2018 3^rd Term Examination General Studies” (PWH/O/3);

(iv)  File name “17/18 P 5 second term Chinese listening answer version. The examination paper title was “Tak Shun School twenty seventeen to twenty eighteen second term examination Chinese listening” (PWH/O/4);

(v)  Assessment form “Tak Shun School Third Term Internal (Assessment)  three”

(vi)  “17/18 P 5 second term 5B 78 Chinese writing practical writing” from TSS (PWH/O/6);

(vii)  “18/19 P5 second term listening examination” from TSS (PWH/O/7);

(viii)  “18/19 second term E5 ENG Speaking Exam” from TSS (PWH/O/8);

(ix)  “19/20 P6 ENG First Speaking Exam” from TSS (PWH/O/9).

(4)  D2 admitted that these TSS examination papers were stored in the purple hard disk (P36B counters 1041-1048). Initially, she stated that these examination papers were stored inside the purple hard disk to see if they were useful. She then immediately changed her answer and said that they were useless (P36B counters 1051-1056). She then changed her answer again and alleged that she may not even have read the TSS examination papers (P36B counters 1057-1345).

(5)  Upon opening the hard disk during the first video recorded interview (P36), the ICAC immediately saw that there were folders labeled by subjects, such as English, Chinese, Mathematics and General Studies etc. with copious notes. There were also 6 folders of learning assessments for the years 2014/2015 to 2019/2020. Each learning assessment folder contained a plethora of sub-folders (P36B counters 1347-1351). The subject folders also contained a number of sub-folders. For example for English 2.2 folder, there were sub folders for P1, P2, P3, P4, P5 and P6. Inside the P6 sub folder, there were 4 more folders, namely “Daily Marks”, “Dict and tests”, “plus presentation list” and “exam short tests” (P36B counters 1351-1364). In the “Exam” folder, there were subfolders including circulate exam form, exam evaluation form, exam headings, exam papers, test, exam criteria form (P36B counters 1375). In the Exam papers folder, there were subfolders of First exam, Second exam, Third exam (P36B counters 1379). In the First exam folder, there were further subfolders for listening, reading and writing and speaking (P36B counters 1383). In the Speaking folder, there were also subfolders including 19/20 P6 First sem speaking exam, 19/20 First speaking exam student version, 19/20 P6 First speaking exam marking scheme, 19/20 P6 ENG First speaking exam, KS2 listening plus speaking (P36B counters 1391). There was a folder Marking scheme (P36B counters 1397-1402).

(6)  D2 stated that she forgot who placed these folders onto the hard disk. She does not remember who arranged the information neatly into folders and sub folders. She forgot where all this information came from. She was not sure about the purpose of these documents. She gave inconsistent explanations about the source of the TSS examination papers and other documents:

(a)  D2 admitted that the purple hard disk was used by her (P36B counters 55-56);

(b)  In DLC, D2 was responsible for revision with the students (P36B counters 229-234, 283-286). Revision means students were asked to do past tests and examination papers (P36B counters 455-460);

(c)  D2 had TSS examination papers because someone gave them to her pursuant to her request (P36B counters 457-490; 595-610). D2 admitted that it was the TSS policy to never distribute examination papers to students, (P36B counters 611-616, 657-658, 695-696, 1115-1136). When confronted with this policy, D2 changed her answer and stated that these examination papers could be purchased online (P36B counters 663-664). Initially, D2 said that she did not know where the Examination papers can be purchased online (P36B counters 667-672). Then she said they were available on Facebook (P36B counters 672-675). She said that she never bought these examination papers online and has never seen them; she does not know if TSS examination papers were available (P36B counters 675-692). Despite the TSS policy, D2 thinks that non-school staff would have copies of the TSS examination papers. She does not know how she knew this (P36B counters 709-716). She then said she heard this from many other people (P36B counters 719-734). Subsequently, D2 stated that she did not know if any non-TSS school staff would have copies of the examination papers online (P36B counters 1033-1034). Her answers are wholly inconsistent. Near the end of the first interview, D2 changed her story again and alleged that the examination papers with the TSS letterhead that were given to DLC students were purchased on the market. D2 asserted that she has never asked D1 for any TSS examination papers (P36B counters 1511-1512). Upon receipt of the examination and tests papers, D2 would see if they were useful. If they were useful, D2 would copy them, take photographs of them or retype them on Excel or Windows (P36B counters 470-524). D2 will then modify the questions in the test and examination papers before giving them to students (P36B counters 553-570). After the student complete the test and examination papers, D2 would check the answers against the answer key (P36B counters 577-582);

(d)  Initially, D2 admitted that she had the answer keys to the test and examination papers (P36B counters 581-582). Then she said sometimes there was no answer key. In that event, she or Ms Yim (D2’s aunt and minority shareholder of DLC)  would prepare an answer key (P36B counters 582-592). When confronted with the source of the answer keys, D2 changed her answer and stated that there was no answer key (P36B counters 593-594). Even if past examination papers were given to students, the students would not have a copy of the answer key;

(e)  D2 gave inconsistent answers as to why the TSS examination papers were stored in her purple hard disk. She stated that she may not even have read the TSS examination papers but also said they were useless. There was no reason for her to know that these examination papers were useless if she had not read them. Apart from test examination papers, there were also answer key, marking schemes, circulate exam form, exam evaluation form, exam headings, exam criteria form, learning assessments, daily marks and presentation lists. These are not information that the students or their parents are privy to. D2 agreed that marking schemes were used by teachers. She was not sure how she got the marking schemes. D2 alleged that the TSS examination papers in the purple hard disk were not given to DLC students for revision (P36B counters 1479-1480). However, she admitted that the examination papers given to DLC students for revision bore the Tak Shun School letterhead (P36B counters 1503-1508).

(7)  D2 asserted that she has never asked D1 for any TSS examination papers (P36B counters 907-908). However, there is no dispute that examination papers were sent to D2 through D1’s WhatsApp:

(a)  Examination papers were sent to D2 from D1’s WhatsApp. P68 pp.3363-3375)  on 16 October 2019. D2 was not at all surprised when she received the examination papers). To the contrary, her response to D1 was “You are very great” (P68 p.3365);

(b)  Further examination papers went sent to D2 from D1’s WhatsApp on 27 November 2019 (P68, pp.3377-3379, 3381-3385). D2’s response was “OK”. This was followed by the following exchange:

D1	D2	Reference
I remember give u already		P68, p.3379
Please delete		P68, p.3379
	No ah cannot delete	P68, p.3379
	Or u give me hard copy tonight then I delete	P68, p.3379
Ok delete tomorrow		P68, p.3379
	Ok	P68, p.3379

(c)  It is clear from the above exchange that D2 did ask D1 for the examination papers.

(d)  Examination papers were again sent by D1’s WhatsApp to D2’s telephone on 16 and 22 December 2019 (P68, pp.3387- 3397). D2’s reaction was a thank you emoji (P68, p.3393);

(e)  Test papers were sent by D1’s telephone to D2 on 3 January 2020 (P68, p.3399-3413). This was followed by the following exchange between D1 and D2:

D1	D2	Reference
	4E, 5C, 6C	P68 p.3401
	4E Ch, 6 1.9, 5C 六& 七1.16 4E Ch, 6 1.9, 5C 6 & 7 1.16	P68 p.3401
Sunday 才找 (I’ll)  look for (it)  on Sunday		P68 p.3403

(f)  D2 was again asking D1 for test or examination papers in the above conversation.

(g)  In 5 January 2020, further test papers were sent from D1’s telephone to D2 by WhatsApp (P68, p.3417). This was followed by the following exchange:

D1	D2	Reference
5C and 6C		P68 p.3417
	Oh ok thanks (3 thank you emojis)	P68 p.3417
6C of course		P68 p.3418
	我睇吓邊個出先 Let me see who’s the setter	P68 p.3419
5C also tell me		P68 p.3419
	Attachment Date : 2019-12-12 13:22 Sender: Ms Wan Ngai-ting (transliteration)  (panel head)  … Ms Wan Ngai Ting (panel head)  wrote that … Dear parents and students, The Primary 5 Chinese Reafing Assessment [6 &7] will be held on 16 January [Thur]. The scope is a# follows: (Incomplete)	P68 p.3419, 3519-3511
Still early		P68 p.3419
	6C needs asking parents send me, pls wait	P68 p.3419
Ok		P68 p.3419
	Yes but 雲應該下星會有 Yes but Wan should have (it)  by next week	P68 p.3421
Ok		P68 p.3421
Now no		P68 p.3421
	That’s ok	P68 p.3421
	Document Attachment Hey, I want to ask if, there’s a Primary 3 General Studied Assignment accounting for 10 marks of the daily mark. I want to ask if there’re extra photocopies at school. Ah Ng Tik-song’s (translation)  Daddy (sent a)  WhatsApp (message)  to me that he lost the whole copy. Well, (it)  accounts for 10 max, but the submission deadline is tomorrow.	P68 p.3421, 3519-3513
Attachment Hey, Hello, good morning. As I know, we don’t have (that). We aren’t the same as kindergarten’s and primary schools that we consider only if (you)  queue up for some, those aren’t like this. Yes, well, so as I know, it’s not necessary a must to put us in the first place actually. Well, but I will clarify with you again when I go to work tomorrow, right?		P68, p.3421, 3514
Jessie		P68 p.3423
	Thanks (emojis)	P68 p.3423
Attachment (Icon) Check		P68 p.3423, 3515
	Thank you emoji	P68 p.3423
	如果麻煩那不用了 No need if (it’s)  troublesome	P68 p.3423
	我等陣返去睇吓是否留低了在勤舍 I’ll go back later to see if (it)  was left in DLC	P68 p.3423
Attachment I saw that those completed have been submitted onto the desks of the three general studies teachers, that is, I saw there were the completed ones. Those are marked, but I couldn’t find the blank ones yet.		P68 p.3517
	Ok understood	P68 p.3425
Attachment Listen, there’re the completed ones. There’s indeed none now, (I)  can’t see (them). Well, I suspect that the kids might have left the remaining (copies)  in the classroom after distribution. The teachers (might think that)  they weren’t examination questions so, if you really need (them), I’ll make a photocopy of those completed to you. Perhaps (you)  print (it)  out and use a correction pen to cover it (yourself)  and then what, but (it’s)  quite troublesome. (You’ll)  need to stick pictures at the back. There’s quite a lot to be done.		P68 p.3518
Attachment Let me check if there’re (copies)  on the computer		P68 p.3519
	Attachment No need to photocopy those completed to me because all my students have completed (them)  as well. Well, if so, I’m thinking about asking the students to (send it)  to me through WhatsApp and ask him/her to print (it)  out himself/herself and then see what else can be done, yes, don’t get busy with (it), alright, thank you.	P68 p.3521
	小六原來只是知道要默，但係在email出範圍emoji Primary 6 (students)  only knew that there would be a dictation, but the scope was announced in the email (emoji)	P68 p.3427, 3522
	Haven’t been (announced)  in	P68 p.3427, 3522
Attachment There is a way, now I have the computer (softcopy)  of the 18-19 Primary 3 General Studies Research Assignment, they just duplicate the (files). Well, I can send you the one for 18-19, I saw that they were also working on places to shop in Hong Kong just now, but they changed the cover to 19-20 (and)  changed to the current year. It’s not convenient for me to take photos just now as Tsz-Yan (translation)  and the others were here. Well, I suggest that I send you the one for 18-19 now through email, then you ask your students to send you the one for 19-20 through WhatsApp. You compare (them)  briefly as it was inconvenient for me to make the comparison. Compare briefly to see if there’re any changes. Then, you use the computer to amend (it)  and help him/her to print (it)  out and give (it)  to NG Tim seng. This is the only way.		P68 p.3522-3523
	Ok thx	P68 p.3427
Done		P68 p.3427
	Ok thx	P68 p.3429
我明天開完會立刻覆你 I’ll get back to you immediately after asking tomorrow		P68 p.3429, 3525
	Thank you so much (emoji)	P68 p.3429, 3525
	好幸福有你（emojis) So blessed to have you (emojis)	P68 p.3429,3525

(h)  a message from D2’s telephone “5C and 6C”. D2’s reaction was “oh ok thanks” and 3 thank you emojis (P68 p.3417). D2 was clearly asking for TSS information and that was provided through D2’s WharsApp;

(i)  TSS Quizzes were sent from D1’s WhatsApp to D2 on 6 and 7 January 2020 (P68 p.3459-3475). D2’s reaction was a thank you emoji (P68 p.3467).

(j)  It is clear from the above messages that D2 was asking for TSS test, examination papers and quizzes and the same was provided to her by D1’s WhatsApp.

(8)  For the reasons stated above, I place full weight on D2’s inculpatory statements and no weight on her exculpatory statements.

The Defence Evidence

216.  I did not believe D1.  His evidence was contrary to undisputed evidence.  His explanations in the video recorded interview (P32)  was also self-contradictory. There are too many examples to enumerate.  The most salient examples are as follows:

(1)  D1 testified in Court that he and D2 were only good friends. This was wholly contradictory to the undisputed evidence and the admissions in his video recorded interview (P32):

(1)  There is no dispute that on 7 July 2020, D1’s personalized Octopus Card (No 60070698(7)  was registered for D1’s access to D2’s residence (Admitted Facts P76 and Computer Certificate of the registration records of D1 and D2’s Octopus cards P19);

(2)  Initially in his video recorded interview (P32), D1 also asserted that he was only friends with D2. He explained that D2 was the mother of an outstanding TSS alumnus and they only became familiar with each other because of D2’s son and D2’s participation in school events (P32B counter 288). They subsequently became closer friends because he attended group activities involving his daughter, such as Christmas parties, party rooms and buffets (P32B counter 304);

(3)  D1 was then confronted with the contents of his mobile telephone. He had the telephone numbers of D2’s parents. Not only did D1 have regular WhatsApp exchanges with D2’s father, he arranged medical appointments for D2’s father, such as physiotherapy and covid injections (P32B counters 424-431). D1 admitted that often had meals and gatherings, celebrated birthdays, Chinese New Year with D2’s parents (P32B counter 441-459). D1 also had telephone number and WhatsApp of D2’s mother. He has been having regular WhatsApp exchanges with D2’s mother since 7 May 2016 (P32B counter 461- 470);

(4)  D1 admitted that his relationship with wife was cold and distant. D1 and wife have now agreed to divorce. He took comfort from D2 about work matters. He did not go on holiday with wife but went on holiday with D2. D2’s parents were very good to D1. D1’s parents did not understand him. The nature of D1 and D2’s relationship subsequently changed;

(5)  D1 further admitted that he and D2 had feelings for each other. Initially, he said he would not call it dating. They have not discussed marriage or their future together but they spent a lot of time together, having meals, celebrating birthdays, fulfilling each other’s dream and bought each other presents. D2 would ask D1 for advice for many things. D1 would take D2’s father to see the doctor. Subsequently, D1 admitted that D2’s parents have asked about D1 and D2’s future together. D1 admitted that he wanted to marry D2 and that they were more than friends. They did not have a sexual relationship but held hands and were intimate friends. D1 admitted that he and D2 were important to each other (P32B counter 493-503);

(6)  D1 had many photographs of D2 in his telephone. These were taken when they celebrated birthdays, and went on holidays. There were also birthday photographs of D2’s parents (P32B counter 566-571);

(7)  D1 often went on holiday with D2. Some of the holidays would also include D2’s parents and elder brother. They have been on holiday together 7 times since 2016. Basically, they would go on holiday together every summer (P32B counter 618-623). This was consistent with D1 and D2’s movements produced as P16 and P17 in the admitted facts;

(8)  D1 and D2 gave each other birthday gifts (P32B counter 633-571). These were branded goods, each costing thousands of dollars (P32B counter 652-678);

(9)  Throughout the video recorded interview (P32), D1 gave extensive explanations whenever the ICAC officer asked whether D1 had anything to add. However, by the end of the interview, the ICAC officer described D1’s relationship with D2 as an extra marital affair. D1 said that he had nothing to add to this comment (P32B counter 905-906);

(2)  D1 testified that he lied to his mother that he was going to operate a tutorial centre (an investment related to his profession)  in order to obtain the loan of HK$420,000 for D2. Otherwise, his mother would not have been willing to extend the loan to him. D1 did not know how D2 used the loan. This explanation was wholly illogical, incredible and contrary to undisputed evidence:

(1)  D1 asserted that D2 was merely a friend. He did not have the resources to extend the loan himself. Although D1’s mother had the funds, his mother was very frugal and indicated that the $420,000 was all she had. The loan was a substantial amount. No matter who was extending the loan, it was extraordinary that D1 would not ask about the purpose of the loan. Under cross examination, D1 admitted that he had asked D2 about the purpose of the “loan” and when he transferred the funds to D2, he knew that the HK$420,000 was going to be used for DLC;

(2)  Stated above, D2 was not merely a friend. D1 was having an extra marital affair with D2 and was treating D2’s family as his own family. In fact, D2’s father were more important to D1 than his own mother. He accompanied D2’s father to medical appointments but not his own mother;

(3)  It was evident from D1’s WhatsApp with his mother (P66)  that his mother was more than happy to give D1 substantial amounts of money even without a request from D1. She was also not concerned about repayment of the HK$420,000;

(4)  D1 alleged that he did not know how D2 was going to utilize the loan. There is no dispute that the $420,000 transferred by D2 was used to start DLC, it is incredible that by coincidence, D1 told his mother that the loan was to be used to operate a tutorial centre;

(5)  In fact, according to the WhatsApp records, D1’s mother was not much prepared to extend the loan because it was connected to D1’s profession, both she and D1 knew that what D1 was doing was wrong and was concerned about the risks:

(6)  It was clear from the WhatsApp records that the discussion about the loan from D1’s mother started before 4 June 2017. There was no urgency as alleged at all;

(7)  It was also clear from the WhatsApp records that D1’s mother knew that the loan was not only for D1. Apart from D1’s answer that “We are confident” (p 3323), there was further exchanges where D2 was mentioned. It was clear that the tutorial centre was DLC:

(8)  In his video recorded interview (P32), D1 admitted that D2 had told him about her plans to start a tutorial school. As their relationship developed, D1 and D2 discussed work matters and they both tried to fulfill each other’s dreams. It was only after this that D2 started DLC (P32A counter 304). It is wholly incredible that D1 did not know that the $420,000 was going to be used to start DLC;

(9)  The $420,000 was transferred to D2 from the joint account of D1 and his mother. The only and irresistible inference is that D1’s mother knew of D2’s involvement in DLC.

(10)  There was no dispute that DLC was in a building opposite TSS when it first opened. This is consistent with the description given by D1 to his mother in the WhatsApp records (P66).

(3)  In his video-recorded interview (P32), D1 stated that he had obtained prior approval and consent of the former School Supervisor before he and his colleagues sent the flower arrangement to DLC’s opening. He told Mr Chan that he wanted to send the flower arrangement because D2’s son was an outstanding alumnus and D2 was very active in school events even after her son’s graduation. D1 felt that he had already declared his friendship/relationship with D2 to Mr Chan and PW1 (P32B counter 326 and 797). D1 admitted that he never told anyone in TSS about the real nature of his relationship with D2 (P32B counter 524-525). His explanation was self-contradictory. Even if he did obtain approval from Mr Chan, the approval was given as a result of the misrepresentation of D1’s real relationship with D2. The explanation to PW1 was also a misrepresentation.

(4)  D1 stated that he never had any financial interest in DLC. This assertion is wholly inconsistent with the undisputed evidence. The $420,000 was used to purchase the shares in DLC soon after it was transferred by D1 to D2. It was clear from the WhatsApp records between D1 and his mother (P66)  that the loan was for D1 to invest in DLC. Even if it were a personal loan from D1 to D2, D1 had a vested interest in the repayment of that loan and therefore the success of DLC.

(5)  D1 knew that he was not allowed to provide private tuition to TSS students. Even if he was not providing the tuition personally, D2 was his girlfriend and no one knew what has been discussed between them in private. There was clearly a conflict of interests. He clearly knew that the declaration forms do not encompass every situation of conflict of interests. The sending of a flower arrangement and the attendance of a student’s birthday party do not involve the acceptance of any advantages on his part, yet, he allegedly sought prior approval for those of those matters (P32B counters 326, 653 and 797). He also knew that the declaration forms were not the only method of disclosure. The invitation of current parents to be volunteers for the School Fair does not involve any acceptance of advantage by D1. Yet he knew not to invite them as volunteers to avoid potential conflict of interest (P32B counter 288). In any event, D1 admitted that he received branded goods, each worth thousands of dollars as gifts from D2 for his birthdays and special occasions (P32B counters 633-571). D1 also admitted that he has been warned by PW1 and the EBD not to get too close with D2 even before DLC started business. D1 said he knew that as a school principal, he should not talk to D2 about sensitive matters (VRI P32B counter 310-312). D1’s explanation of his failure to declare the alleged loan of $420,000 and relationship with D2 was ridiculous. The failure to disclose the nature of his relationship with D2 was clearly deliberate.

(6)  Not only did D1 fail to declare his true relationship with D2 and the transfer of $420,000 to D2, he was dealing with examination papers of DLC. During the video recorded interview (P32), the ICAC found a number of emails related to D2 and/or DLC in D1’s telephone:

(1)  D1 had D2’s email on his phone (wingpang14). First email from D2 was dated 21 Dec 2018 and the last one 11 March 2021. The title of one of the emails was “print thanks”. D1 admitted that he was printing the advertising flyer for summer courses for D2 (P32B counters 484-491);

(2)  Two of the other emails from D2 was seeking advice for D2’s son’s admission interview at CUHK Business School (VRI P32A counters 504-513);

(3)  The email dated 11 March 2021 from D2 was about a dinner reservation at the Peninsula Hotel (P32A counter 514-523);

(4)  There was another email on D1’s telephone “Diligence Summer 2018 Final A3” and “A4”. At first D1 said it was summer course advertising flyer. ICAC pointed out that both the sender and recipient was “Henry” and the email address was “henrykwok72@hotmail.com for both emails (P32B counter 527-535);

(5)  Another email dated 23 April 2018 was found after ICAC typed in “Summer”. The title was “Diligence Summer 2018 Final A4”, Both the sender and recipient were “henrykwok7620” (P32B counter 546);

(7)  D1 asserted that the he never changed the default password to his computer in his office.

(8)  D1 denied that he has ever sent quizzes to D2. However, he admitted that he has sent the exercises from the database to D2 for her reference. There was no dispute that the questions in the database was the source of examination questions and this database was not available to outsiders. Further, D1’s assertion is inconsistent with undisputed evidence. According to the WhatsApp record between D1 and D2’s telephone, on 5 January 2020, D1 informed D2 that the Eclass password has changed and that the new password was 111419w (P68B p.3437). In other words, D1 did not only give D2 some of the exercises, he gave D2 his password to the database.

(9)  Initially under cross examination, D1 admitted that he knew about the policy in respect of conflicts of interests since he became a TSS teacher in 2004. Later, he contradicted himself and denied that he was aware of the policy and alleged that he received no training on conflicts of interests as a teacher. He even denied that he knew that he should avoid a conflict of interest as a teacher of TSS. When it was pointed out to him that it was a matter of common sense, D1 changed his evidence again and agreed that he should avoid a conflict of interests. He even alleged that he was the one who knew about the conflict of interests and set up the school policy after he became the School Principal in 2013.

(10)  When D1 was cross-examined about the guidelines on conflict of interests, his answers were evasive.

(11)  D1 admitted that purchasing a watch from a shop owned by a former student may give an impression of conflict of interests. He reported the matter to the School Supervisor. When it was suggested that he was very conscious of possible situations of conflict, he became evasive and stated that he did not report it in the declaration form.

(12)  Under cross-examination, D1 admitted that he knew that the HK$420,000 from him was going to be used by D2 for the operation of DLC. However, he stated that it never occurred to him that this may give rise to conflict of interests. He reported the attendance of a student’s birthday party, the purchase of a watch from an alumnus’ parent, a flower arrangement to DLC, allegedly reducing contact with D2 at TSS. D1’s assertion that he was not aware that the transfer of $420,000 gave rise to a possible conflict of interest was wholly incredible.

(13)  When it was suggested to D1 that the transfer of $420,000 to D2 to run DLC was even more serious than the purchase of the watch, D1 evaded the question and stated that he only reported the purchase of the watch informally.

(14)  D1 stated that the possibility that his relationship with D2 would cause a potential conflict of interest never occurred to him. However, he stated in his video recorded interview that TSS received many complaints about him after D2 opened DLC. He became very careful about his interaction with D2 because he had to avoid suspicion as a school principal (P32B counter 340-358). D1 told D2 to ask the vice principal and teachers if D2 needed help (VRI P32B counter 356), but at the same time, D1 warned the vice principal and teachers not to speak to the staff from tutorial centres (P32B counter 708-712).

(15)  D1 subsequently admitted that he found himself in a very difficult position. He was the TSS school principal whilst D2 ran a tutorial centre that taught TSS students. He knew he should avoid close contact with D2. However, in his personal life, he had a relationship with D2. He has been warned by the EBD to avoid contact with D2 inside school; any contact outside school should be reported to PW1 and the cost of meals should be shared. D1 agreed that his relationship with D2 would give the impression of a conflict of interest (P32B counters 797-804)  but he never reported his relationship with D2 to PW1 (P32B counters 652-678).

(16)  D1 stated that basically all the staff could access his office and many of them could use his computer. In particular, he asserted that he gave his username and password to PW2, the Vice Principal. There is no dispute that copies of the examination papers which are the subject of Charge 2 were sent to D2 by D1’s WhatsApp. Firstly, I do not accept that the staff had access to D1’s computer. It would make a mockery of the login requirement. Secondly, according to PW13, the WhatsApps on the desk top computer were merely an image of what was on D1’s telephone. All messages were in fact sent and received through the telephone. In his video recorded interview, D1’s stated that both his telephone and his WhatsApp account were password protected. The password for his telephone was 111XXX whilst the password for his WhatsApp was 729XXX (P32B, counter 25-27). The ICAC officer also used those passwords to open D1’s WhatsApp account. In other words, even if anyone else could log into D1’s computer, they would not be able to use his WhatsApp.

(17)  Further, any suggestion that someone had covertly used the WhatsApp on D1’s computer to implicate him is untenable. The WhatsApp records on D2’s telephone were not found in D1’s telephone. D1 explained that his telephone was always heating up and was making some noises. He could hear a third voice when he was having a telephone conversation. Someone suggested that he could solve the problem by deleting some telephone numbers (P32B counter 398-399). However, it was clear from the evidence that D1 did not delete D2’s telephone number. D1 admitted in his video recorded interview that the ICAC gave him advance notice of their visit on the morning of his arrest. He had deleted some records on his telephone, including his call records (P32B counters 11, 401-408). However, D1’s WhatsApp exchanges with D2’s parents since 2016 were all found in D1’s telephone (P32B counter 418-423). When confronted with why only his WhatsApp exchanges with D2 were missing, D1 gave a completely different answer and stated that those messages did not load when he bought his present telephone (P32B counter 472 p 1403). The only and irresistible inference is that D1 deleted all his WhatsApp exchanges with D2 and his call records when he realized that the ICAC were investigating the matter.

(18)  D1 alleged that there was a reason for others to implicate him for this case because colleagues were unhappy with the workload he generated to promote the school as an all boys’ school. This was again inconsistent with undisputed evidence. In his video-recorded interview, D1 stated that he received strong support from all the school staff (P32B counter 814). According to the PWs, D1 was very popular at school. The award for the student who read the most was having breakfast with D1. This evidence was never disputed.

(19)  In his video recorded interview (P32), D1 asserted that he was not sure if DLC existed in 2013/2014 when D2’s son graduated from TSS (P32B counter 288). This is incredible as he transferred the HK$420,000 to D2 to start DLC and attended the opening. He later stated that DLC started in 2015/2016 (P32B counter 689-690).

(20)  Initially, D1 gave the impression that he knew very little about DLC. He did not know its share structure (P32B counter 285-286)  and only believed that D2 was the person in charge as D2 came to TSS pick up the students for tutoring (P32B counter 270). D1 claimed he only knew over 20 students had tutoring lessons at DLC (P32B counter 274). Later said he checked the results of students on notice board and noticed that not many DLC students achieved top grades (P32B counter 706). In other words, he knew exactly which student had tutoring at DLC.

(21)  D1 told the ICAC that there was another anonymous complaint after PW1 became the School Supervisor. D1 left some student homework at the guard house and D2 came to get it. Initially, D1 asserted that the homework belonged to a student who was absent. Later he said that the homework belonged to an alumnus. Subsequently, D1 said that he gave some homework to D2 because a student had forgotten to do it (P32B counter 326 and 712). Further on, D1 said that a student forgot to do homework, he placed the homework at the guard post to give to D2 upon her request (P32B counter 870-887). His explanations are inconsistent.

(22)  D1 admitted that he never told anyone at TSS about his relationship with D2. However, he alleged that felt that he had already declared his friendship with D2 to PW1 when he was asked about the homework incident.

217.  I found D1 thoroughly dishonest, incredible and unreliable. I reject his evidence. As for his video-recorded interview, I accord full weight to his inculpatory statements but no weight to his exculpatory statements.

Legal Principles

Misconduct in Public Office

218.  Counsel for D1 relied on paragraph 69 of the Court of Final Appeal’s Judgment in HKSAR v Shum Kwok Sher (2002)  5 HKCFAR 381 as the definition of “misconduct in public office”.

219.  Counsel stated in paragraph of 57 of her submission that:

“Sir Anthony Mason NPJ has explained that case that “what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or the office which is held and the nature of the conduct said to constitute the misconduct”. Furthermore, “the essential feature of the offence is an abuse by the defendant of the powers, discretions or duties exercisable by virtue of his official position, conferred on him for the public benefit.”

220.  In fact, that is neither the ratio decidendi nor the definition given by the Court of Final Appeal in Shum Kwok Sher. In paragraph 69 of the Judgment, Sir Anthony Mason was quoting the definition of the offence in PD Finn “Public Officers: Dome Personal Liabilities” (1977)  51 ALJ 313 at p.315 and the conclusions to be drawn from that definition. In fact, Sir Anthony Mason stated that this was one of the reasons why defining the elements of the offence was so difficult.

221.  Sir Anthony Mason in Shum Kwok Sher first rehearsed the history of the offence before he pointed out the difficulties associated with defining the elements of the same:

“The offence of misconduct in public office

66. The offence of misconduct in public office has a long history, going back at least to 1704. In that year, in the case of Case 136, Anonymous (1704)  6 Mod 96, the Court said:

If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehaviour in his office.

A year later, in R v Wyat (1705)  1 Salk 380 the offence was expressed again in very broad terms when the Court said:

Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable.

67. Since then there have been many cases in which public officers have been convicted of the offence. It must be acknowledged, however, that over time the elements of the offence have been described in a variety of different ways.…

68. It is not surprising, therefore, that the comment has been made from time to time that the offence is not easy to define. It has been said that it is "not easy to lay down with precision the exact limits of the kind of misconduct or misbehaviour” … ; that “ the offence is not easily capable of exhaustive definition” and “ there is some uncertainty as to the precise contact of offence and even i’s correct title” …; that “the very notion of misfeasance in public office … imports more nebulous issues [Than murder] that are less easy to define” …; and that it is “ obscure, and often ill-defined” … Nonetheless, it is clearly established that it is an offence at common law ….

69. The difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence. This is because, to quote the words of PD Finn, "Public Officers: Some Personal Liabilities" (1977)  51 Australian Law Journal 313 at 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.”

70. Lord Mansfield appears to have recognised this problem as early as 1783. In R v. Bembridge (1783)  22 ST 1, his Lordship spoke … of two principles, one governing the officeholder who accepts an office of trust and confidence concerning the public and acts "contrary to the duty of his office", the other governing "a breach of trust, a fraud, or an imposition in a subject concerning the public". Both principles were held to apply to Bembridge, an accountant in the office of the paymaster-general of the forces. It was his duty to see that amounts owing to the Crown were properly included in the account. Not only did he fail to perform his duty in this respect, he "corruptly" concealed from the auditors the existence of amounts owing.

71. It is not entirely clear whether Lord Mansfield's reference to two principles was intended to relate to the one offence or two different offences. Be this as it may, in the later cases, the offence has been regarded as a single offence.

72. It was only natural that, in the course of time, the description of the offence tended to focus on the nature of the misconduct charged, more particularly in those cases where the misconduct complained of was not a simple breach of a positive duty to which the officer was subject, but consisted of a failure to exercise, or amounted to a wrongful exercise of, a discretion or power, as, for example when an officer exercised a discretion or power attaching to his office for personal gain or advantage. There were other cases where the officer acted outside the scope of the powers of his office.

73. Most of the reported cases in the 18^th and 19^th centuries involved dishonest, corrupt or partial conduct on the part of officeholders who, in performing their functions or exercising their powers, did so for personal gain or personal advantage. In describing the relevant conduct, the courts referred to the defendant's motive as "dishonest", "corrupt", "partial" or used some other adjective to describe an improper motive. These descriptions appeared to reflect a view that, in some cases at least, a motive so described must be established before the defendant could be convicted of misconduct in public office’.

222.  Sir Anthony Mason only started to consider the elements of the offence of misconduct in public office from paragraph 79 of the Judgment:

“79. It is necessary to identify the constituent elements of the offence. With that end in view I turn to Question of Law Reserved (No. 2 of 1996)  88 A Crim R 417. In that case, police officers and a private citizen were charged in a number of counts with "Abuse of Public Office (Common Law)". The prosecution case was that the three police officers gained access to confidential information in their official capacities and passed that information to the private citizen. The trial judge reserved questions of law for the consideration of the Court of Criminal Appeal. The Court held that there existed a generic indictable common law offence of misconduct in public office which covered misfeasance or nonfeasance in public office by a public officer r.

80. Doyle CJ considered … that the object of the offence was correctly stated by PD Finn … in his article “Official Misconduct” (1978)  2 Crim LJ 307 when he said …

Official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him.

With Doyle CJ, I agree that this statement accurately states the object of the offence.

Identifying the elements of the offence, including its mental element

81. As I have already noted, in an earlier article, "Public Officers: Some Personal Liabilities" (1977)  51 Australian Law Journal 313, Dr Finn had correctly pointed out (at 315)  that the essence of the offence is that an officer who has been entrusted with powers and duties for the public benefit has abused them or his official position. 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. In all these instances the conduct complained of by the public officer takes place in or in relation to, or under colour of exercising, the office.

82. The critical question is: what is the mental element required to constitute commission of the offence? In the case of nonfeasance, non-performance of a duty arising by virtue of the office or the employment, all that is required is wilful intent, accompanied by absence of reasonable excuse or justification. Mere inadvertence is not enough. So much is established by the authorities, …

83. In other cases, the question is more complex. That is because outside the area of non-performance of a duty, an additional element is generally, if not always required, to establish misconduct which is culpable for the purposes of the offence. In such cases, in the absence of breach of duty, the element of wilful intent will not be enough in itself to stamp the conduct as culpable misconduct. A dishonest or corrupt motive will be necessary as in situations where the officer is exercising a power or discretion with a view to conferring a benefit or advantage on himself, a relative or friend. A malicious motive will be necessary where the officer exercises a power or discretion with a view to harming another. And a corrupt, dishonest or malicious motive will be required where, an officer acts in excess of power. The point about these cases is that, absent the relevant improper motive, be it dishonest, corrupt or malicious, the exercise of the power or discretion would not, or might not, amount to culpable misconduct. Although the examples constitute some only of the range of situations which fall within the reach of misconduct in public office, they are enough to illustrate the proposition that the existence of an improper motive, beyond the existence of a basic wilful intent, is necessary to stamp various categories of conduct by a public officer as culpable misconduct for the purposes of the offence.

84. In my view, the elements of the offence of misconduct in public office are:

(1)  A public official;

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

(3)  willfully and intentionally;

(4)  Culpably misconducts himself.

A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. Subject to two qualifications, this statement of the elements of the offence accords with the respondent's submission.

85. The first qualification is that, although the respondent submits that the misconduct must be either "wilful" or "intentional", I consider that the misconduct must be "wilful" as well as "intentional". In R v. Sheppard [1981] AC 394, the House of Lords … By majority it was held that a person "wilfully" fails to provide medical attention for a child if he (i)  deliberately does so, knowing that the child's health may suffer unless he receives attention; or (ii)  does so because he does not care whether the child may need medical attention or not. In other words, "wilfully" signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. For this reason "wilfully and "intentionally" are not employed disjunctively in the statement of the elements of the offence in the preceding paragraph.

86. The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. 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.

87. Although this qualification is not made in the earlier cases, it underlies the concluding observations of Lord Widgery CJ in R v. Dytham. The qualification is consistent with the concept of abuse of office and it is appropriate that the offence should be so qualified in the light of the creation of a range of disciplinary offences that now apply in the case of public sector employees. The qualification is not to be taken as a dividing line between the offence of misconduct in public office and disciplinary offences. There is no doubt a borderland in which the common law offence and disciplinary offences overlap.

223.  In Sin Kam Wah v HKSAR (2005)  8 HKCFAR 192, the Court of Final Appeal held that the offence is committed where:

(1)  a public official;

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

(3)  willfully 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.

224.  In addition to the elements of the offence, the Court of Final Appeal also held that:

“46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.

The scope of misconduct in public office

47. As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1^st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters. To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1^st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2^nd appellant exercised control, direction or influence, that being a serious criminal offence.

48. In order to reach this conclusion, it is unnecessary to call in aid s. 21 of the Police Force Ordinance. This section provides:

Every police officer shall for the purposes of this Ordinance be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Ordinance or any other law at any and every place in Hong Kong where he may be doing duty.

I agree with the interpretation placed upon the section by the Court of Appeal, namely that it deems a police officer to be on duty when circumstances exist requiring him to exercise the powers he has as a police officer, for example, when he observes a crime being committed. I share the Court of Appeal’s view that the application of this section was not an essential step in the prosecution case.”

225.  In HKSAR v Tsang Yam Kuen Donald [2019] HKCFA 24, the Defendant, who at the material time was the Chief Executive of the HKSAR and President of the Executive Council (ExCo), was charged with one offence of bribery, and two offences of misconduct in public office. He had discussed with Wong Cho-bau, a Mainland Chinese businessman, renting an apartment in Shenzhen (the Property)  from a company controlled by W, and he said it was agreed that the Property would be renovated, refurbished and redesigned to the Defendant and his wife’s requirements for HKD 3.85 million at that company’s expense before being rented to the Defendant at the market rate of RMB 800,000 per annum. At the same time, the ExCo had considered an approved several applications (the Applications)  relating to WML, a company of which W was a 20% shareholder, and L was another shareholder: (a)  an application for WML to obtain a second broadcasting licence; (b)  an application for WML to surrender a previously granted sound broadcasting licence; and (c)  an application for L, a legally disqualified person, to exercise control over WML (which was by then renamed)  as is director and chairman. The Defendant did not declare his interest regarding the Property to the ExCo. The prosecution alleged that: (a)  the renovation, refurbishment and redesign of the Property had been a bribe for the Defendant’s handling of the Applications (Count 1); (b)  the Defendant’s deliberate, concealment of his dealings with W, or alternatively, his failure to declare or disclose, or conceal of the dealings are mounted to misconduct in public office (Count 2); and (c)  the Defendant’s failure to disclose or concealing of his interest in the Property and the engagement of the interior designer, whom he had recommended for an award under the Hong Kong system of honors, also mounted to misconduct in public office (Count 3). At trial, the jury was unable to reach a verdict on Count 1, but convicted the Defendant on Count 2 and acquitted him of Count 3. A second jury was also unable to reach a verdict on a subsequent re-trial of Count 1. On appeal, the Court of Appeal dismissed the Defendant’s appeal against conviction, but allowed appeal against sentence and reduced his term of imprisonment from 20 months to 12 months. The Defendant obtained lead to appeal to the Court of Final Appeal on the basis of points of law relating to what the proper jury directions on the elements of “willful misconduct” and “seriousness” should have been for the offence of misconduct in public office and on the basis of a possible substantial engrave injustice.

226.  The Court of Final Appeal held:

“Misconduct in Public Office and non-disclosure

25. For the purposes of the law of Hong Kong, the elements of the common law offence of misconduct in public office are as follows:

The offence is committed where:

(1)  a public official;

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

(3)  willfully misconduct 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 was 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.

It is (3)  and (5)  that are of present relevance. Element (4)  is an additional requirement that may become relevant where a wilful failure to meet standards has occurred but is sought to be excused or justified.

26. The history of the offense was considered by Court in Shum Kwok Sher v HKSAR. … Sir Anthony Mason NPJ cited with approval what was said by PD Finn in an article entitled “Official Misconduct”:

… official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, and does not abuse intentionally the trust reposed in him.”

27. Shum Kwok Sher v HKSAR was a case concerning awarding of public contracts to a company without the necessary qualifications by a public official who had a family relationship with the controllers of the company. The particulars of the misconduct asserted three cumulative elements: failing to disclose the relationship; failing to abstain from the decision making process; and displaying partiality by awarding the contract to an unqualified tenderer.

28. The relevant misconduct may or may not involve an act proscribed by a statute such as, in Hong Kong, the Crimes Ordinance, or the Prevention of Bribery Ordinance. In HKSAR v Hui Rafael Junior this Court examined the relationship between the common law offence of misconduct in public office and the statutory offence of bribery. Bribery is an example of a particular form of misconduct that became the subject of special legislative treatment in common law jurisdictions in the nineteenth and twentieth centuries.

29. The common law offence does not necessarily involve venality. For example, A-G’s Reference (No 3 of 2003) concerned an alleged failure by police officers to take proper care for the safety of a person in custody. HKSAR v Ho Hung Kwan Michael concerned a medical officer who gave favourable treatment to members of his family. Neglect of duty or abuse of power may amount to criminal misconduct even though the accused gains no personal benefit from it.

227.  In Shum Kwok Sher v HKSAR, Sir Anthony Mason NPJ pointed out that the misconduct may take various forms, ranging from fraudulent conduct, through nonfeasance of the duty, misfeasance in the performance of the duty, and exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, or oppression. In that case the appellant’s duties in relation to conflict of interest and the obligation not to favor relatives of friends with the subject of written guidelines. The appellant was found to have set out to favor, the company controlled by his relatives. His motive for concealment of his relationship was his desire to advance the interest of that company. His conduct was dishonest, as he must have realized. The concealment of his relationship with the company was an integral part of his scheme to benefit the company by awarding it contracts notwithstanding its lack of proper qualification.

31. Just as the relevant conduct may or may not in itself be illegal, so also it may or may not be contrary to rules or guidelines, and attract possible disciplinary sanctions. It is the capacity of the offence, which has sometimes been described as “misbehaviour in a public office”, to criminalise acts or omissions that would otherwise be no more than departures from civil standards of behaviour that has led to complaints about the uncertainty of its scope, and to repeated emphasis on the importance of the elements of wilfulness and seriousness. The offence strikes at abuse of powers or duties, not at errors of judgment. “A mistake, even a serious one, will not suffice”. As to seriousness, the English Court of Appeal said, in R v Dytham, (a case concerning a police constable’s failure to intervene in a fight in which a man was beaten to death):

The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect.

This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide.

32. In a case where the exercise of a power, such as the grant of a licence, is not itself alleged to be, or to be part of, the relevant misconduct, but the misconduct is said to consist of not making disclosure in the course of the exercise of the power, a characterisation of the conduct as “deliberate” may involve an ambiguity that has a bearing on the elements of wilfulness and seriousness. A considered decision not to disclose information may be deliberate in the sense that it is not inadvertent, but it may at the same time result from an error of judgment. To describe a decision not to disclose something as “deliberate concealment” adds a pejorative element. Where, as in the present case, the particulars of the alleged misconduct are failing to declare or disclose or concealing, there may be a need for care in distinguishing between the alternative possibilities. Concealment implies dishonesty. Failure to disclose, even if deliberate, may be the result of an error of judgment.

33. In HKSAR v Ho Hung Kwan Michael Chan ACJ, with whom the other members of the Court agreed, said:

[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.

[30] In other cases, where corruption, dishonesty or other illegal practices are not involved, the consequences of the misconduct may not be obvious.

In a case of non-disclosure which falls into the latter category, leaving a jury to its own devices in assessing seriousness may be dangerous. It has been said by the English Court of Appeal, with reference to other forms of misconduct, that it is not sufficient simply to tell the jury that the conduct must be so serious as to amount to an abuse of the public’s trust in the office holder without giving them assistance as to how to assess seriousness and harm by putting the conduct into its proper factual context. The same applies to non-disclosure. Deliberate non-disclosure, as distinct from deliberate concealment, may fall into the second of the two categories identified by Chan ACJ.

34. In the present matter, the primary prosecution case was that the dealings between the appellant and Mr Wong in respect of the renovations to the Shenzhen property were corrupt, the form of corruption being that alleged in Count 1, and that they were deliberately concealed in order to hide that corruption. If that case had been accepted, there would have been a conviction on Count 1, and the elements of wilfulness and seriousness in respect of Count 2 would have presented little difficulty. That case, however, was not accepted by some members of the jury. If the dealings concerning the renovations were not corrupt, then issues as to the wilfulness and seriousness of their non-disclosure would become prominent. …

Disclosure obligations

35. There was evidence from a senior official as to Civil Service Bureau Circulars and other published requirements concerning conflicts of interest, and disclosure of interests. The primary obligation on senior officers was to avoid a situation giving rise to real or potential conflicts of interest.

36. In the context of proceedings in the ExCo, disclosures of actual or possible conflicts were made to the Council, not to the public. Even so, one of the objects served by disclosure is to give the person or persons to whom the disclosure is made the opportunity to seek further information. Disclosure may be an iterative process.

37. The appellant relied on the fact that there was no obligation to declare rented property. This was in the context of the annual declaration of registrable interests required to be made by members of ExCo. While properties owned by members should be entered on the register, rental properties need not. It does not follow, however, that current negotiations about future rental arrangements need never be disclosed.

72. It is in the nature of the offence of misconduct in public office that a jury is required to make an assessment of whether the alleged misconduct is so serious as to involve an element of culpability which is of such a degree that the misconduct is calculated to cause injury to the public interest so as to call for condemnation and punishment.…

73. In a passage in Shum Kwok Sher v HKSAR which was cited with approval in Attorney General’s Reference (No.3 of 2003) Sir Anthony Mason NPJ said:

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.

To that, the English Court of Appeal added, “the seriousness of the consequences, which may follow from an act or omission.”

228.  In a recent application for leave to appeal in HKSAR v Lau Wai Yee Monica CACC 168/2023 [2024] HKCA 576, the appellant was convicted of a single charge of misconduct in public office. It was alleged that the appellant, the holder of a public office, namely, a member of the Medical Council of Hong Kong between 1 April 2017 and 23 January 2018, willfully misconducted herself in her public office by (a)  disclosing to PW4, a member of the Society for Community Organization (SOCO)  the personal particulars of PW3 and the details of the complaint made by PW3 with the Medical Council against Dr W; (b)  causing PW4 to arrange a meeting between PW3, PW4 and herself on 26 May 2017 during which she solicited a retainer from PW3 to pursue a civil claim against Dr. W; and (c)  accepting instructions via her firm of solicitors from PW3 to act for him in a claim against Dr. W.

229.  The applicant, a practicing solicitor, volunteered her services to community organizations, including providing legal assistance to the SOCO. In March 2013 and December 2016, the SOCO referred to patients to the applicant for legal assistance who complained about the medical treatment they received from Dr. W. The applicant, through her firm, institute of legal proceedings against Dr. W in respect of these two cases. On 3 June 2015, PW3 filed a complaint against Dr. W with the Medical Council, which was referred to the Preliminary Investigation Committee (OIC)  of the Medical Council. The applicant was the only lead member of PIC at the time. On 11 April 2017, PW3’s complaint was taped before a meeting of PIC for its deliberation. Prior to the meeting, materials relating to PW3’s complaint were provided to PIC members. At the PIC meeting, the applicant declared she was representing another patient in a civil action against Dr. W and recused herself from participating further in respect of PW3’s complaint. On 27 April 2017, the applicant telephoned PW4, told him of PW3’s complaint against Dr. W and asked whether he could help PW3 as PW3 what’s the third patient complaining about surgery conducted by Dr. W. She told PW4 that PW3 was depressed and that the surgery had ruined his life. The applicant later, on 27 April 2017, sent PW4 a WhatsApp message containing PW3’s contact detail (particular (a)).

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

231.  On 15 June 2017, the applicant, PW4 and PW3 met again, and PW3 decided to engage the applicant as his solicitor to commence a civil action against Dr. W for medical negligence. PW3 later paid the applicants firm cost on account (particular (c)).

232.  The trial judge rejected the prosecution case that the applicant was to legal work and found that she did not have an improper motive when she disclosed PW3’s information to PW4. He was not satisfied that the applicant caused the meeting with PW3 on 26 May 2017, rather it was PW4’s own idea with PW3’s consent. He accepted that the applicant may have acted out of genuine concern to help PW3 through the SOCO. He, therefore, did not find particular (b)  proven.

233.  As particulars (a)  and (c)  we’re not in dispute, the Judge found them proven. He concluded that particulars (a)  and (c)  were independent misconduct in relation to the applicants public office, but could also be considered together.  The Judge considered, whether, for the element of willful misconduct, an improper motive was an additional mens rea element for the offence. He identified the applicants misconduct as “disclosure” and “acceptance of instructions”. He said that the “disclosure” was a breach of duty by a failure to act, that is, a “nonfeasance” for which no improper motive was needed to be proved as part of the mens rea. He said that the “acceptance of instructions” was acting in excess of power or authority, that is, a “malfeasance” for which a dishonest, corrupt or malicious motive was required. He found that there was clear and agreed evidence of the applicant accepting the instructions for personal benefit, which constituted the necessary improper motive. The Judge did not find that the applicant had reasonable excuse or justification for the “disclosure the “acceptance of instructions”. The Judge was satisfied that individually and cumulatively the misconduct under particulars (a)  and (c)  met the seriousness threshold. He considered the “disclosure” to be a serious breach of her public duty to protect the person, no data of complainants of the Medical Council and preserved the confidentiality of information that was interested to her by the Medical Council. He considered the “acceptance of instructions” for her private gain to be a serious abuse of the public interest.

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

235.  Zervos JA held:

“Ground 1: the “seriousness” threshold

19. The question of misconduct turns on a consideration of the circumstances of the applicant’s disclosure of PW3’s personal particulars, including the reason of purpose for why it was done. See HKSAR v Ho Hung Kwan Michael. An important element of the offence of misconduct in public office is the seriousness of the public officials alleged misconduct. This element is intended to limit the scope of the offense by excluding conduct that is disciplinary in nature and not serious enough to warrant a criminal sanction. This aspect of the offence of misconduct in public office has been strongly endorsed in R v Chapman and Ors; Chan Tak Ming v HKSAR; Shum Kwok Sher v HKSAR. This aspect of the offense of misconduct in public office was cogently argued by Mr. Tsui by reference to whether the misconduct is serious is to be determined “having regard to the responsibilities of the office and the office holder, the importance of the public objects, which they serve and the nature and extent of the departure from those responsibilities”: HKSAR v Tsang Yam Kuen Donald. A critical requirement of this offense is the intentional and serious abuse of an officials, public office or position that involves more than just a mere oversight or a lapse of judgment. The Judge accepted that the threshold for seriousness was high, and that a mistake or an error of judgment, even a serious one, was not enough. He also accepted that the applicant’s motive was a relevant consideration in the element of “seriousness”. However, there is an issue as to whether the Judge properly determined that the threshold for seriousness has been met in the circumstances of this case.…

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

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

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

Conspiracy

236.  For Charge 2, the prosecution bears the onus of proving that:

(1)  there was an agreement between to divulge information to DLC;

(2)  the divulgence of information to DLC amounted to misconduct in public office;

(3)  D1 and D2 were party to the agreement; and

(4)  Each intended to carry out the agreement

Discussion

Charge 1

237.  I shall now consider each of the elements of Charge 1 in turn according to the above principles.

A Public Official

238.  There is no dispute that D1 was a public official.

In the Course of or in relation to his Public Office

239.  There is no dispute that the conflict of interests in relation to schools is regulated by the School Administration Guide issued by the EDB (P7, P7A, P7B, P7C and P7D). Appendix 11 of that Guide provides as follows:

(1)  a conflict of interest is likely to arise when a member of the school personnel’s loyalty to the school conflicts with his own interest or his loyalty to his personal friends;

(2)  The School Management Committees should put in place proper procedures to require a school personnel to declare any conflict of interest that might influence, or appear to influence, his judgment in the performance of his duties;

(3)  The school staff should be advised to refrain from acquiring any investment or financial interest, which may lead to conflict of interest with their official duties; and

(4)  Apart from having declaration arrangements in place, school staff should seek to avoid it in the first place. For example, it is highly undesirable to make any investment or any financial or other interest, which may lead to a conflict of interest with ones duties in the school.

240.  There is no dispute that all staff members of TSS were required to adhere strictly to those guidelines.

241.  Counsel for D1 submitted that Charge 2 is not an alternative to Charge 1. However, there is a degree of overlap as a failure to declare a conflict of interest, without more, does not amount to misconduct in public office. It is the conspiracy to commit misconduct in public office by “wilfully” and “intentionally … divulging confidential information of TSS, namely the examination questions and quiz papers of TSS to Diligence Centre (as per Charge 2)  that invests the conduct in Charge 1 with the seriousness amounting to misconduct in public office.

242.  That submission is wholly inaccurate and contrary to the principles enunciated in Shum Kwok Sher. I have already cited extensively from that authority. For ease of reference. I will only repeat the succinct statement of the law in the holdings:

“(4)  the elements of the offence were as follows: (a)  a public official; (b)  who in the course of or in relation to his public office; (c)  willfully and intentionally; (d)  culpably misconducted himself. This statement of the elements was subject to two qualifications. The first qualification was that the misconduct must be willful and intentional. A public official culpably misconducted himself if he willfully and intentionally neglected or failed to perform a duty to which he was subject by virtue of his office or employment without reasonable justification; or with an improper motive, he willfully and intentionally exercised, a power of discretion, which he had by virtue of his office or employment without reasonable excuse or justification. In this respect, the term “willfully” signified knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. The second qualification was that the misconduct must be serious. Whether it was serious misconduct was to be determined, having regard to the responsibilities of the office and the office holder, the importance of the public objects which they served and the nature and extent of the departure from these responsibilities …”

243.  In other words, there are two types of misconduct, non-feasance and misfeasance. For non-feasance, no improper motive was required to prove mens rea. For misfeasance, the prosecution is required to prove that the accused had a dishonest, corrupt or malicious motive. See also paragraph 15 in Lau Wai Yee Monita. 

244.  There cannot be any dispute that D1 was subject to a duty to disclose a conflict of interest by virtue of his office or employment. His duties are set out in Appendix 11 of the EDB’s School Administration Guide.  I find that D1’s duty was in the course of or in relation to his public office.

245.  There is no dispute that D1 has never declared any conflict of interest in respect of his financial interest in DLC. The prosecution’s case is that D1 failed to disclose to, or concealed from the IMC of TSS his financial interests in DLC. The failure to disclose is a non-feasance (which does not require proof of improper motive)  whereas concealing is a misfeasance (which requires improper motive). Looking at the evidence and the line of cross examination, the prosecution case focussed solely on D1’s failure to disclose, for example, there was never any cross examination or assertion that D2 was used by D1 to conceal his financial interest in DLC. In my judgment, Charge 1 is an allegation of non-feasance.  In those circumstances, the prosecution is not required to prove improper motive.

246.  In those circumstances, the only issues for Charge 1 are:

(1)  Whether D1 misconducted himself wilfully and intentionally;

(2)  Whether there was any reasonable excuse or justification; and

(3)  Whether the misconduct was serious.

Whether the failure to disclose was “willful and intentional”

247.  As stated above, the evidence shows that D1 was in a close romantic relationship with D2. There was no dispute that $420,000 was transferred to D2’s bank account from D1’s joint account with his mother. The amount of this transfer was identical to the price of D2’s shareholding in DLC and was used by D2 to purchase the shares in DLC. It was obvious from the WhatsApp messages between D1 and his mother that this $420,000 was D1’s investment in DLC. I found that D1 had a financial interest in DLC. D2 (D1’s girlfriend)  was at least one the persons in charge of DLC.

248.  It was also clear from the WhatsApp messages between D1 and his mother that the locations of DLC near TSS was to attract TSS students to receive tutoring at DLC. There is no dispute that at the material time, there were at least 20 students who received tutoring at DLC.

249.  As the School Principal of TSS, D1 was privy to all confidential information of TSS, such as the dates of examinations, tests and quizzes, topics of tests, quizzes and examinations,  assessment criteria and marking criteria etc. He also had access to the publishers’ database, the Teachers Resource Folder of the School Server and the draft examination papers.

250.  In those circumstances, D1’s relationship with D2, D2’s role in DLC and D1’s financial interest in DLC came within the definition of a conflict of interest under Appendix 11 the EDB School Administrative Guide. Even on the assumption that D1 had not divulged any tests or examination papers to D2, D1 agreed that his judgment in the performance of his duties may appear to be influenced by his close relationship with D2.

251.  It was evident that D1 knew that there was a conflict of interest. He admitted in his video recorded interview that he found himself in a very difficult position, being torn between his official capacity as the School Principal of TSS and his personal capacity as D2’s boyfriend. In their WhatsApp exchanges, D1’s mother expressed concern at the outset that D1’s investment would be discovered. However, D1 stated that he would be careful. D1 admitted that there were a number of complaints about him since DLC commenced operation. All these complaints were related to his relationship with DLC and D2. This even led to an investigation by the EDB and the results of one of the secondary allocation examination results being rejected. D1 admitted that both the School Supervisor (PW1)  and EDB have warned D1 to avoid being too close to D2 or DLC and all activities involving D2 or DLC should be reported. Despite all the above, D1 failed to declare his conflict of interests.

252.  During the trial, there was some suggestions that the annual declaration of conflict of interest forms do not provide for the disclosure of D1’s financial interest in DLC or his relationship with D2. These suggestions are absurd. D1 knew that the declaration form was not the only way to disclose a conflict of interests. He obtained prior approval before sending a flower arrangement to DLC’s opening. He asked for prior permission before attending a student’s birthday party. In his video recorded interview, D1 stated that he was very conscious of possible conflicts of interests. He even avoided inviting current school parents to be volunteers at school events to avoid any potential conflicts of interests. D1 also claimed to be involved in setting up the TSS policy in respect of conflict of interest and gave advice related to this topic to colleagues.

253.  By reason of the matters mentioned, I find that D1’s failure to disclose was both willful and intentional.

Whether D1’s failure to disclose was serious

254.  Counsel for D1 submitted that:

“61. … any failure by D1 to disclose his financial interest does not involve an abuse of power. There was no power being exercised capable of being abused. Rather, the abuse of a power arises in Charge 2.

62. D1 points to paragraphs 23 and 24 of the Prosecution’s Opening Submission. A close reading of these two paragraphs demonstrates that the prosecution has not made out a case as to why a failure to declare a conflict of interest amounts to misconduct in public office. Paragraph 24 merely asserts that the failure to declare, or to conceal, a non-declared sum amounts to misconduct in public office. The prosecution, nowhere in its opening, describes the power being abused, or the official position being abused. Instead, the prosecution case appears to proceed on the basis that the responsibility of D1’s office alone, together with the failure to disclose / deliberate concealment, gives rise to the offence.

255.  Counsel is either being deliberately obtuse or she has completely misunderstood the Prosecution case and the law. Her submissions are also contrary to all the authorities she herself cited. Misconduct in public office is not confined to an abuse of power. In paragraph 57 of her submissions, Counsel referred to Shum Kwok Sher. In that case, Sir Anthony Mason explained :

“…what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or the office which is held, and the nature of the conduct said to constitute the misconduct … the essential feature of the offence is an abuse by the defendant if the powers, discretions or duties exercisable by virtue of his official position, conferred on him for the public benefit”

256.  I found no merit in Counsel’s submission.

257.  Counsel further submitted that:

“63. … (D1’s)  conduct, in having failed to declare any interest in DLC, without the conspiracy particularized in Charge 2, might well constitute a serious disciplinary offence but would not attract criminal sanction. There was evidence for this at trial. PW1 (Mr. HERBERT)  suggested, towards the end of his cross examination by D1, that the IMC (the Incorporated Management Committee)  was vested with a discretion “ but that it was normally better to abstain” in relation to the declaring of financial interests - in other words, the declaring would be required to abstain from duties involving the interested. This is reflective of the level of seriousness visited upon conflicts of interest, that is, a person may continue to serve despite ostensibly being conflicted.

64. Mr. Herbert testified that “if there was a financial interest I would have asked him to desist”, he further explained that “in the circumstances of S1’s case” it would have been “prudent” for him to have reported the matter. This supports D1’s contention that the failure to declare does not amount to serious misconduct since had Mr. HERBERT known of this he would have asked D1 to desist, he did not even say that this would amount to automatic dismissal or any other sanction.

258.  I do not agree. Counsel has completely twisted the evidence of PW1 (Mr. Herbert). The evidence described by Counsel was never given by PW1. Under cross examination, Counsel suggested to PW1 that if D1 had given D2 a personal loan but D1 had no financial interest in DLC, D1 would not be required to declare a conflict of interest. PW1 stated that in that situation, D1 was technically not required to make a declaration. However, he would place himself under certain pressure when parents asked for D1’s advice. It would be prudent for D1 to make a declaration. However, PW1 also explained that there were certain “hot topics” where the rules in respect of conflict of interests were absolute and no exemption would be granted. These related to the conduct of examinations, promotion of colleagues, admission of students and tutorial centres. PW1 also explained that there was a discretion when dealing with a conflict of interest in relation to the supply of goods and services. However, such matters were not dealt with by the School Principal but by the SMC. In exercising this discretion, it would probably be better for the staff with a conflict of interest to abstain. PW1 also explained that some breaches of the TSS Administration Guide (and not the EDB School Administration Guide)  can be dealt with by internal disciplinary action and can also be prosecuted under the Prevention of Bribery Ordinance.

259.  In deciding whether the misconduct was serious, the Court must have 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.  D1’s financial interest in DLC is the polar opposite to his loyalty to TSS. D1 was the School Principal and had access to all the confidential information of TSS. D1’s conflict of interest may influence, or appear to influence his judgment in the performance of his duties. Moreover, under the EDB Guidelines, D1 should refrain from acquiring any investment or financial interests which may lead to a conflict of interest with their official duties. It was specifically stated in the Guidelines that it is highly undesirable for school staff to make any investment or any financial or other interest which may lead to a conflict of interest with one’s duties in the school. In other words, D1’s financial interest in DLC was in breach of most, if not all, of the EDB policy against conflict of interest. It would be clear to any normal and reasonable person that even assuming there was no divulgence of quizzes, tests and examination papers, such conflict of interest was extremely serious. The possible damage to the integrity of school system and the public confidence in the system would be seriously undermined.

260.  Counsel referred to the Education Ordinance (Cap. 27). She argued that:

“65. The Education Ordinance (Cap. 27)  supports this argument. Section 49BG (4)  of the ordinance explains what should occur in a conflict situation. The section allows a person conflicted to potentially continue in service, but not to participate in matters concerning the particular area he/she has an interest in. Appendix 11 of the School Administration Guide of EDB regarding Conflicts of Interest (Exhibit 7)  at pages 324-326 of Bundle 1 contains relevant school policy on Conflicts of Interest. Appendix 11 would appear to reflect Section 40BG(4).

261.  I agree that some conflicts of interest can be dealt with by abstaining. This depends on the nature, extent and seriousness of the conflict. These provisions are also predicated on the fact that the conflict is disclosed.

262.  Counsel repeated that:

“66. … the two charges must be read together. If D1 is acquitted on Charge 2, Charge 1 falls away. However, even if the court is not with this submission and finds that Charge 1 can stand alone, it is submitted that any failure to declare must be willful and that a lapse in judgment is not enough.

263.  The same argument was again repeated in paragraph 76 of Counsel’s submission. I have already set out the reasons why I found no merit in the argument in relation to the relevance of Charge 2 to Charge 1. I will not repeat them here.

264.  Counsel then referred to HKSAR v Donald Tsang. In paragraph 62 of that case, the Court of Final Appeal stated:

“A failure by a decision-maker to disclose an interest in the subject matter of the decision may be deliberate in the sense that the decision-maker thought about disclosure and decided against it, but not willful because the decision maker did not know, or believe, there was an obligation to disclose in the circumstances of the case, and did not disregard the risk of their being such an obligation.”

265.  Counsel then rehearsed D1’s evidence. Firstly, for the reasons stated above, I have already rejected D1’s evidence. Secondly, I have also pointed out in detail why I found D1’s failure to disclose was willful and deliberate. I am not going to repeat them here.

Justification or Reasonable Excuse

266.  There is not an iota of evidence that there was any justification or reasonable excuse for D1’s misconduct.

267.  I find that the Prosecution has proved Charge 1 against D1 beyond all reasonable doubt. D1 is accordingly convicted of Charge 1.

Charge 2

D1

268.  Counsel for D1 submitted that it was apparent that the prosecution case is focussed on the following classes of documents that were allegedly transferred from D1 to D2 in one form or another:

i. TSS Primary 5 Mathematics Examination Paper for Term 3, School year 2020-2021 (in particular version 4);

ii. TSS Primary 1 Mathematics Paper for Term 3 School Year 2029-2021 (P62);

iii. TSS Primary 2 English Examination Paper for Term 3 School Year 2029-2021, together with a draft answer key (P74);

iv. 6 sets of TSS Primary 5 mathematics exam papers that were found during search on 15 June 2021 at DLC (P40)

v. Various quiz papers referred to in paragraph 34 of the Prosecution opening.

269.  Counsel submitted that:

“7. On the Prosecution case, the relevant information was divulged to DLC and presumably, this is how the Prosecution seeks to show the agreement and intention to carry out the agreement. However, D1 submits, in relation to Charge 2, that the prosecution has failed to prove beyond a reasonable doubt that D1 divulged the relevant exams and quizzes, if the court accepts that it is submitted that there is insufficient evidence of a conspiracy (involving D1)  to do so.

8. There was evidence before the court that: (I)  others used D1’s office for meetings; (ii)  others used his computer; (iii)  he had not changed his default password (which was the same for all staff); (iv)  others used the WiFi via his router and lastly (v)  D1 was unpopular amongst the school community. It is on this basis that D1 contends the Prosecution has failed to prove beyond reasonable doubt that he was involved in the divulgence of the relevant exams and quizzes.

270.  All the above “evidence” came from D1. I have already rejected his evidence and given very detailed reasons above. I will not repeat them here. Because I have rejected D1’s evidence, there is no evidence to support any of Counsel’s suggestions.

271.  Although I have rejected D1’s evidence, that is not the end of the matter. The Prosecution still has to prove each and every element of the offence beyond all reasonable doubt.

Conspiracy

272.  As stated above, at all material times, D1 was in a close romantic relationship with D2. D1 had a financial interest in DLC. D2 was the person in charge of DLC.

273.  The documents which are the subject matter of Charge 2 included:

(1)  the documents sent to D2’s telephone from D1’s telephone by WhatsApp;

(2)  the documents in the USB (P37); and

(3)  the documents found in DLC.

WhatsApp Messages

274.  There was no dispute that the messages and attachments of quizzes, tests and examination papers extracted from D2’s telephone were sent from D1’s telephone. Counsel for D1 suggested that D1 kept his office door unlocked and anyone could have access to it. She also referred to the previous “compromised security” (i.e. a Primary 4 student accessing the publisher database with a teacher’s username and password)  and suggested that someone else might have used D1’s computer to send these messages to implicate D1 as he was unpopular in the school community.

275.  As explained above, D1 admitted in his video recorded interview that both his telephone and WhatsApp account were password protected. D1 stated that he never changed the default password of his computer, which was the school telephone number. The  passwords to D1’s telephone and WhatsApp started with a “1” and a “7”. They were clearly different and were not telephone numbers. According to PW13’s evidence (which was accepted by the Court), even if D1’s WhatsApp account was linked to his computer, the WhatsApp on the computer is merely an image of D1’s telephone. All messages were still sent and received through D1’s telephone. There was no suggestion that D1 had ever given his telephone and WhatsApp passcode to anyone. In the circumstances, it is incredible that anyone could have accessed D1’s WhatsApp account.

276.  The relevant WhatsApp messages were not found in D1’s telephone. There was a suggestion that the person who used D1’s WhatsApp to divulge the information may have deleted the messages to avoid D1’s detection. This suggestion is wholly contrary to the evidence. According to D1’s video recorded interview, the ICAC gave D1 prior notice on the day of their visit. D1 admitted in his video-recorded interview that he had deleted his call record as well as all the messages with D2. He gave a number of inconsistent explanations as to why he deleted the call record and WhatsApp messages with D2. His explanations were rejected by this Court.

277.  Apart from the quizzes, tests, examination papers, marking schemes, assessment criteria etc., there were both text and audio messages from D1. Those messages were dotted amongst the attachment of documents. Some of those messages did not relate to the documents. In fact, in the messages, D2 was asking D1 for specific examination papers and those documents were subsequently sent to D2. After the documents were sent to D2, D2 thanked D1.

278.  Counsel also referred to the malfunction of the School Server. However, the malfunction would not cause the computer to select the quizzes, tests, examination papers requested by D2. It would also not cause text and voice messages to be sent to D2.

279.  By reason of the above mentioned matters, I find that all the WhatsApp messages on D2’s telephone were sent by D1 with his telephone through WhatsApp. The same messages were deleted by D1 when he knew that the ICAC were coming to investigate the matter. There was an agreement between D1 and D2 for D1 to divulge these TSS quizzes, tests, examination papers and other confidential documents to D2. Not only did they intend to carry out the agreement, the agreement was in fact executed.

The USB (P37)

280.  The draft TSS Primary 1 Mathematics examination paper for Term 3 in 2020/2021 (P72), the draft Primary 2 English examination paper for Term 3 of 2020/2021 (P73)  and the answer key (P74)  were found in the USB (P37). The USB was found from S2’s handbag on 12 June 2021. The dates of the above examinations were 8 June and 4 June 2021.

281.  According to PW13’s evidence, the USB was connected to D1’s computer and the relevant examination papers (P72-P74)  were accessed by the username “kck” (i.e. D1’s username)  on D1’s computer and using D1’s router on 6 May 2021. The file with the examination papers were uploaded onto the USB 2 seconds after such access, when the USB was connected to D1’s computer. The USB was then connected to the DLC computer (P41)  where the files (P72-P74)  were accessed on 13 May 2021, 15 May 2021 and 3 June 2021. Apart from some minor and inconsequential amendments, the files in the USB (P72-74)  were identical to the examination papers seized in DLC (P42-P43).

282.  The scientific data found by PW13 indicated that the source of the USB files were the files in the Teachers Resource Folder of the TSS School Server. I have already set out PW13’s evidence in detail above. I will not repeat them here.

283.  I have rejected D1’s evidence. There is no accepted evidence to support the allegations that other people used D1’s office, computer or router or that D1 had given his computer password to anyone.

284.  Counsel suggested that PW6, the Vice Principal had attended some of the group gatherings with D1 and D2 and may know of D1 and D2’s “friendship”. This is wholly contrary to D1’s video-recorded interview, where he stated that he did not tell anyone at TSS about his relationship with D2. This was also never suggested to PW6 in cross examination. It was no evidence that PW6 or anyone else in TSS knew about D1’s financial interest in DLC.

285.  Counsel submitted that D1 was unpopular in the school community. This was again contrary to the evidence. Having breakfast with D1 was used as a reward for reading. D1 admitted that the school staff were very supportive towards him.

286.  There was no reason for anyone to use D1’s computer or router to implicate him. In his video recorded interview, D1 stated that TSS tried to install a system to detect who last accessed the files in School Server but in vain. As far as TSS was concerned, it was impossible to tell who accessed the files. PW13 was only able to find the access information using specialized software.

287.  I find that D1 had accessed the School Server and uploaded the files onto the USB.

288.  There is no dispute that the USB was found in D2’s handbag. D1 has already been divulging quizzes, tests, examination papers and other confidential information to D2 by WhatsApp. Having regard to the whole of the evidence (including the relationship between D1 and D2 and D1’s financial interest in DLC), the only and irresistible inference is that the USB was given by D1 to D2.  

Examination Papers in DLC

289.  There is no dispute that a large volume of TSS quizzes, tests and examination papers, some answer keys and other confidential documents were found in DLC. This included the answer key to Primary 5 Mathematics Term 3 for the school year 2020/2021, v.4 (P40).

290.  PW6 to PW10 were the School staff involved in the drafting of the Primary 5 Mathematics Term 3 examination paper for the school year 2020/2021. They all denied divulging any examination papers to anyone outside TSS. Their evidence was accepted by this Court.

291.  PW6 stated that she discovered an error in the answer to question 18 of that paper when she reviewed version 4 of the paper and answer key. She therefore circled question 18 and made a comment. This draft examination paper and answer key were passed into D1 for his approval on 25 May 2021 before they were returned to PW9 and PW10 for amendment. This evidence was consistent with the circulation record attached to the examination paper and answer key. The examination date was 8 June 2021.

292.  Question 18 on P40 was also circled. In other words, it was the version handed to D1 and before amendment by PW9 and the markings made by PW10. This version was only handed to D1 after PW6’s review and before amendment by PW9 and markings made by PW10.

293.  There is no dispute that PW9 drafted this examination paper on his computer and the same was uploaded onto the Teachers Resources Folder in the TSS School Server. However, there is no dispute that during the drafting process, the examination paper was circulated to the teachers and D1 by hard copy. Comments were handwritten. In other words, the comments written on the actual examination paper and answer key would only be present on the hard copy and not on the draft on the School Server.

294.  By reason of the above mentioned matters and in the light of the whole evidence, the only and irresistible inference is that this answer key to the examination paper (P40)  was divulged by D1.

295.  P40 was found in DLC on 12 June 2021, i.e. 4 days after the examination on 8 June 2921. Apart from P40, six sets of DLC Mathematics exercises were seized from DLC (P44)  on 15 June 2021. Apart from some trivial and inconsequential differences, P40 and P44 were basically identical. At that time, not only had P44 been completed by a child surnamed Lam, it had also been marked by the tutor.

296.  Having regard to the whole of the evidence (including the relationship between D1 and D2, D1’s financial interest in DLC, the divulgence of quizzes, tests and examination papers by D1 to D2 in their WhatsApp messages and the USB, the version of the answer key found in DLC), the only and irresistible inference is that D1 had divulged this examination paper answer key to D2 and DLC.

297.  The relevant documents were found and seized from D2 and DLC in 12 June 2021 and 15 June 2021, i.e. shortly after the examinations. There is no dispute that the examination papers would be uploaded to the TSS School Server after the examination. There was no reason why D1 should access the draft papers prior to the examination or divulge the draft Mathematics paper (P40). The only and irresistible inference is that these documents were divulged by D1 to D2 prior to the examinations.

298.  In other words, I find that all the documents which are the subject matter of Charge 2 were divulged by D1 to D2. There was an agreement between D1 and D2 for such divulgence and the agreement has in fact been executed.

Whether the agreement was for D1 to commit misconduct in public office

299.  D1 admitted that completed examination papers were not given back to the students after the examination.

300.  Appendix 11 of Chapter 7 of the School Administrative Guide from the EDB (P7, P7C and P7D)  provides:

“A staff member of TSS leaks confidential information relating to the school’s operations to favour his friends or relatives was an example of conflict of interest situations.

301.  The TSS School Administrative Guide Chapter 13 “Conflict of Interest Policy” (P4A and P5)  provides:

“Staff members shall not divulge any confidential information [including examination questions] under any circumstances without authorization.

302.  Apart from examination papers, PW1 stated that draft quizzes and draft examination papers were also confidential information. I have accepted his evidence.

303.  There is no dispute that D1 was at all material times a public officer. He was bound by the TSS and EDB guidelines. There can be no doubt that the agreement to divulge the documents was clearly in the course of or in relation to D1’s public office. The divulgence by D1 was clearly willful and intentional. There is and can be no justification or reasonable excuse for such behaviour. There is no dispute that past examination papers will be subsequently used as reference for future examinations. Any reasonable and normal person (even a child)  would know that disclosure of examination questions and answers prior to the examination amounts to cheating and was dishonest. It would be obvious to D1 (who was an experienced education professional)  that his behaviour was dishonest. That was why he asked D2 to delete the texts he sent by WhatsApp and he himself deleted the entire WhatsApp record with D2. The documents were clearly divulged to benefit D1, DLC and D2. This was an improper motive. D1 serious abused the trust reposed in him by TSS as the School Principal. The misconduct was serious having regard to the responsibilities of the office and office holder, the importance of the objects which they serve and the nature and extent of the departure from those responsibilities. The misconduct would bring TSS and the education system into disrepute.

304.  I find that the Prosecution has proved Charge 2 against D1 beyond all reasonable doubt. He is accordingly convicted.

D2

305.  Counsel for D2 submitted that although the facts are suspicious, there is a doubt as to the guilt of D2 on Charge 2. He submitted that the prosecution has not proved the following to the requisite standard:

“1. There was an agreement between D1 and D2 to execute the matter specified in the charge, and furthermore, the passing on of the documents may have been something done by D1 by himself, without D2’s agreement; and/or

2. D2 may not have been aware that there was on D1’s Part a serious conflict of interest contrary to his school’s internal guidelines and/or more importantly the directives from the Education Department. This must be looked at with regard to the circumstances of the case, that D2 may have believed that she was receiving sample questions and/or past papers for reference.

306.  I reject those submissions. As stated above, the documents which are the subject of Charge 2 were divulged by D1 included:

(1)  WhatsApp to D2’s telephone;

(2)  The USB (P37)

(3)  The documents found in DLC

WhatsApp Messages

307.  There can be no dispute that the relevant messages were found in D2’s telephone. Counsel submitted that these messages may have been sent by someone else without D1’s knowledge. Even if they were sent by D1, there is no evidence to show that D2 had used the information and/or was aware of its contents. There was also no evidence that D2 agreed to receive them. He asked the Court to consider the evidence if Wan Ngai ting and (D2-5 and 5A).

308.  This argument is wholly untenable and contrary to the evidence. Not only did D2 thank D1 for the documents sent, she actively asked D1 for further documents. There were also audio files amongst the messages. Some of the audio files sent by D2 to D1 related to TSS matters.

309.  The request by Counsel to consider the way Wan Ngai Ting dealt with the information sent to her by D2 is absurd. There is no evidence that D2 dealt with the documents in the same way. In her video recorded interviews, D2 said she may not have read the documents. This was directly contradictory to her earlier answers. At the beginning of the interview, D2 admitted that she had asked someone for the examination papers. She herself would then modify them and use them as exercises for the DLC students. Numerous TSS quizzes, tests, examination papers and some newer keys, documents relating to marking and assessment criteria were found inside the purple hard disk used by D2.  These documents were arranged neatly into folders. The folders appear as soon as the hard disk is plugged in.

310.  The submission that D2 may not have known that the quizzes, tests and examination papers were actual examination papers. This argument is again completely untenable. D2 asked D1 for specific examination papers. The name of the School (TSS), the name of the TSS teacher who drafted the paper and the school year were all printed on all the documents. D2 admitted that she knew they were TSS teachers. In her 1^st video-recorded interview, D2 alleged that TSS examination papers were available for purchase online the market and online. Parents may also have copies of the examination papers. If that were the case, there was no need for D2 to ask D1 for them. D1 asked D2 to delete one of the TSS documents. D2 refused but agreed to delete it the following day. If D2 thought that they were only sample questions, there was no reason for her to delete them.

311.  By reason of the aforesaid matters, I find that there was an agreement between D1 and D2 for D1 to divulge the TSS documents and information in the WhatsApp messages. In fact, D2 requested D1 to divulge some of those documents. D2 knew that these were the actual TSS quizzes, tests and examination papers. D1 and D2 executed that agreement.

The USB

312.  There was no dispute that the USB was seized from D2’s hand bag. The USB contained files that were downloaded from the TSS School Server when the USB was plugged into D1’s computer.

313.  Counsel submitted that D2 may not have known about the contents of the USB. He submitted that PW4 (Mr. Park, a tutor in DLC)  agreed that there were many USBs lying on the desks in DLC. This submission is untrue. There was no such evidence from PW4. When the suggestion was put to PW4, his disagreed with the suggestion.

314.  The evidence shows that the files in the TSS School Server (P72-P74)  were almost identical to the files on the USB. According to PW13, the files in the USB were accessed by “Diligence”. The examination papers of DLC (P42 and P43)  were almost identical to P72-P74. Contrary to what is alleged by Counsel, there is evidence that the files in the USB were used by DLC.

315.  D1 and D2 were in a close romantic relationship. D1 has been divulging TSS examination papers to D2 on WhatsApp pursuant to D2’s requests. The USB was found in D2’s handbag. D2 admitted that she was responsible for revision class. Counsel suggested that the files might have been divulged to Ms. Yim. Firstly, D2 had a close relationship with D1. There is no evidence to suggest that Ms Yim knew of D1’s financial interest in DLC. This was also never suggested to D1 in cross examination. In fact, D2 chose not to cross examine D1. The Court has no obligation to think of Defences for an accused. Having regard to all the circumstances of the case, the only and irresistible inference is that the documents in the USB were divulged by D1 to D2. Not only was D2 aware of the contents of the USB, the same was used in DLC. 

Examination papers in DLC

316.  There is no dispute that numerous examination papers were found in DLC. I have also found that at least one of the examination papers (P40)  was divulged by D1. This paper (P40)  is virtually identical to another completed and marked paper found in DLC. It is clear that P40 had been used in DLC.

317.  Having regard to the whole of the evidence, the only and irresistible inference is that the examination papers were divulged by D1 to D2 pursuant to their agreement.

Misconduct in public office

318.  I have already convicted D1 for Charge 2. D2 may not be a teacher and may not be aware of the terms of the TSS Administration Guide. However, tutorial schools are also regulated by the EDB. D2 was also the mother of an alumnus. Her son was a student at TSS for 6 years. She admitted that past examination papers would not be distributed to students or their parents. In other words, she knew that examination papers were confidential. Despite that, she persisted in asking D1 for examination papers. Further, P40 contained handwriting marks and was clearly a draft. Any reasonable and normal person (including D2)  would know that the divulgence of examination questions before the exam amounts to cheating.

319.  I find that the prosecution has proved Charge 2 against D2 beyond all reasonable doubt. She is accordingly convicted.