HKSAR v. WONG LINKAY

FACC No. 3 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 633 OF 2010)

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J U D G M E N T

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Chief Justice Ma:

1.  I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Chan PJ:

2.  I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

3.  This appeal concerns the scope of the common law offence of misconduct in public office.

4.  The respondent was employed as a government driver in the Agriculture, Fisheries and Conservation Department in Shatin.  His duties were to drive other employees of the Department to various places of work in the Pak Tam Chung Country Park, usually in a small truck.

5.  On 9 March 2009, he was convicted of driving a motor vehicle whilst he had a concentration of alcohol in his blood above the prescribed limit and was disqualified from driving for six months.  The offence was not committed in the course of his employment, but he did not disclose the conviction to his employer and thereafter continued with his driving duties.

A. The proceedings below

6.  His conviction was later discovered by the Department and this led to the respondent being convicted before Mr Sham Siu-man at the Kwun Tong Magistrates’ Court[1] on six charges of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance[2] and on a single charge of misconduct in public office contrary to common law. 

7.  The misconduct offence was particularised as follows:

“WONG Lin-Kay, you are charged that between 11th day of March, 2009 and 14th day of August, 2009, in Hong Kong being a public officer namely motor driver of the Agriculture, Fisheries and Conservation Department of the Hong Kong Special Administrative Region Government, in the course of or in relation to your public office wilfully and intentionally culpably misconducted yourself by :

(a) failing to inform the Agriculture, Fisheries and Conservation Department that you [were]disqualified from driving on 9th March 2009 for a period of 6 months,

(b) acted in your capacity of motor driver in performing your driving duties in driving on roads motor vehicles of the Hong Kong Special Administrative Region Government.”

8.  The respondent was sentenced to 6 months’ imprisonment and disqualified from driving for two years for driving whilst disqualified. He was sentenced concurrently to 15 months’ imprisonment for misconduct in public office. 

9.  On appeal, McMahon J[3] dismissed his appeal against conviction and sentence on the driving offences, but allowed his appeal against conviction on the misconduct charge.

10.  His Lordship held that on the authorities:

“...the ‘public officer’ must be a person who holds a position of trust, or of some responsibility, which requires him to, and vests him with the authority or power to, perform duties which in their performance can affect the public interest. ... [There] must be inherent in the position held some ability, by the performance of duties attached to that position, to affect the public interest.”[4]

11.  Applying that approach to the position of the respondent, his Lordship concluded:

“...there was, in my view, insufficient evidence to establish that the appellant was, in the work he was employed to do, able to affect the public interest. There was no suggestion on the evidence that he, in his capacity, was able to make any administrative decision or any other sort of decision which had any bearing on the public interest, or to exercise any authority to direct any other person, or to utilise his position, to influence the manner in which the Department’s work was performed, as one would expect if he were to act as a public official. I do not think therefore that the appellant was a public official. He was a truck driver.”[5]

B. The issue in this appeal

12.  On the prosecution’s application, McMahon J certified as a question of great and general importance the following:

“What is the definition of ‘public official’ for the purposes of the common law offence of misconduct in public office?”

Leave to appeal was granted by the Appeal Committee.[6]

C. The appellant’s case

13.  Mr Gerard McCoy SC, appearing with Mr William Tam for the appellant, submits that the Judge erred by conflating the issue of whether someone is a “public officer” for the purposes of the offence with the question of what conduct amounts to relevant “misconduct”.

14.  He argues that the question who is a “public officer” is an independent question, standing apart from the other elements of the offence.  The answer, he submits is that a “public officer” for the purposes of the offence includes, but is not restricted to, every government employee.  The concept also covers employees of analogous public bodies.

15.  This is so, not merely as a matter of language but also because of the rationale of the offence.  It is, Mr McCoy submits, an “integrity offence” and its rationale is to criminalise breaches by government employees of their duty of loyalty to their employer, the HKSAR government.  Any serious breach of such duty – which he also describes as a fiduciary duty – is (so the argument runs) a breach of the public trust placed in civil servants that they will properly discharge their duties.

16.  In the instant case, it is argued that the respondent was guilty of a serious breach of his duty of loyalty by unlawfully driving whilst disqualified and concealing the disqualification from his employer.  This was said to involve a breach of fiduciary duty in that he preferred his own interests (of continuing to be employed and paid as a government driver) over his duty of loyalty to the HKSAR government not to act unlawfully and not to act in defiance of a disqualification order.  That, Mr McCoy submits, puts the respondent squarely within the misconduct offence.

D. The proper approach

17.  I am unable to accept that argument.  The authorities do not support the proposition that liability for misconduct in public office is established merely by proving breach of the duty of loyalty owed by a government servant qua employee to his employer.  The offence does not arise merely on the basis of some wrongdoing occurring within the confines of the employer/employee relationship even where the employer is a government or public body.  It requires misconduct by a public officer in relation to powers and duties exercisable by him for the public benefit.

18.  The proper approach is to be found in the judgment of Sir Anthony Mason NPJ in Shum Kwok Sher v HKSAR.[7]  Although his Lordship acknowledged that no issue was raised in that case as to the meaning and scope of the expression “public office” and remarked that “Just how far it extends may perhaps be a question for the future;” the analysis of the offence in that judgment is illuminating.

19.  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.  Thus, expressing approval of an article by Professor P D Finn, Sir Anthony Mason NPJ stated:

“... to quote the words of PD Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p 315: ‘The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.’ It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.”[8]

20.  His Lordship stressed that such abuse could take many forms, including dereliction of duty, misuse of powers and misconduct related to the public office:

“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.”[9]

21.  In laying down the requirement that the misconduct must be serious, Sir Anthony Mason NPJ noted that this requirement “is consistent with the concept of abuse of office”.[10]

22.  The correct approach is therefore not to attempt somehow to decide in the abstract or in isolation whether a person is or is not a “public officer”.   One must examine what, if any, powers, discretions or duties have been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involves an abuse of those powers in any of the ways identified in Shum Kwok Sher.  If the defendant occupies a position which confers no such powers on him, he is not a candidate for prosecution for the offence, even if he is employed by a government department or by an analogous public body.

23.  The centrality of abuse of the public office in the sense discussed above is reflected in Sir Anthony Mason NPJ’s encapsulation of the elements of the offence:

“In my view, the elements of the offence of misconduct in public office are: (1) A public official; (2) who in the course of or in relation to his public office; (3) wilfully 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.”[11]

24.  In Sin Kam Wah v HKSAR, Sir Anthony Mason NPJ reformulated the offence principally to take into account comments on the mental element made in Attorney General’s Reference (No 3 of 2003).[12] The reformulation runs as follows:

“The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully 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.

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.”[13]

25.  As is apparent from the words I have italicised, the re‑statement does not diminish the pivotal importance of there being an abuse of office in the sense discussed above. 

26.  To regard the essence of the offence in this way is consistent with the earlier authorities.  A few illustrations will suffice. Thus, in R v Bembridge,[14] a case often cited,[15] Lord Mansfield described the offence as one involving a man who had accepted “an office of trust concerning the public” and who was answerable “for misbehaviour in his office”, thus focusing on the accused’s violation of the trust placed in him for the benefit of the public by abusing it or misbehaving in some way in relation to his office. 

27.  In R v Dytham,[16] a police constable was convicted of misconduct in public office where, in dereliction of his duty, he had deliberately refrained from intervening when a man was being kicked to death 30 yards away.  Lord Widgery CJ characterised the defendant’s inaction as involving seriously culpable misconduct “calculated to injure the public interest”, highlighting the impact of his dereliction of duty on the public interest and not merely on the employer/employee relationship.

28.  Similarly, in R v Whitaker,[17] a case involving a conspiracy to bribe a public officer,[18] Lawrence J rejected the argument that the person bribed was not a public officer stating: “A public officer is an officer who discharges any duty in the discharge of which the public are interested...”  The importance that the public, and not merely the employer of the accused, should have an interest in the way his duties are discharged is apparent. 

29.  In Attorney General’s Reference (No 3 of 2003),[19] Pill LJ giving the judgment of the Court, emphasised the dimension of abusing the public’s trust, summarising the elements of the offence as follows:

“The elements of the offence of misconduct in a public office are: (1) a public officer acting as such ...; (2) wilfully neglects to perform his duty and/or wilfully misconducts himself...; (3) to such a degree as to amount to an abuse of the public's trust in the office holder ...; (4) without reasonable excuse or justification....”

30.  His Lordship had earlier cited Russell on Crime,[20] in which the following was stated:

“...a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable to indictment for not faithfully discharging the office.” (Emphasis supplied)

31.  There is also authority for the proposition that abuse of office lies at the core of the closely related tort of misfeasance in public office.  Thus, as Lord Millett stated inThree Rivers District Council v Governor and Company of the Bank of England (No 3):[21]

“... the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith and improper purpose.”

32.  That was consistent with what Best CJ stated in the earlier case of Henly v Lyme Corporation:[22]

“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act or omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer.”

33.  And in Northern Territory of Australia v Mengel,[23] Brennan J put it this way:

“It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are the states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”

34.  Of course, in ordinary speech, every employee in the public sector might be termed a “public officer”.  However, for the purposes of determining who is potentially liable for misconduct in public office, the authorities examined above show that not every public employee is susceptible to such liability.  His job may not vest him with any relevant powers or discretions to be exercised for the benefit of the public.  The misconduct he is accused of may not involve any abuse of, or have any relevant relationship with, the official position which he occupies.

35.  Mr McCoy’s focus on the employee’s duty of loyalty and his rejection of any requirement that the misconduct should comprise an abuse of the powers bestowed on the accused in his official position for the public benefit, results in his formulation of an offence which discriminates against public employees.  Its consequence is that two men employed as drivers who both breach their duties of loyalty as employees by driving whilst disqualified and concealing the disqualification from their employers in order to remain in gainful employment receive completely different treatment in law merely because one is employed in the public, and the other in the private, sector.  On Mr McCoy’s approach, the law would criminalise only the conduct of the government employee notwithstanding that both drivers behaved in an identical manner.  That is unjustifiable.

36.  The right to equal treatment under the law therefore highlights the importance of the public dimension of the offence.  A public officer who is held liable for misconduct in public office because he has abused the powers, discretions or duties vested in him for the benefit of the public, is not in the same position as a person who, not having been endowed with such powers, is exposed to no such liability.  A public officer’s potential liability for the offence so constituted involves no discrimination.

E.     Applying the proper approach to the present case

37.  In my view, the respondent falls into the excluded category of government employees.  He did not occupy a public office entrusting him with powers and discretions to be exercised for the public benefit; nor, it follows, did his misconduct consist of any abuse of such non-existent powers.  He was, as the Judge pointed out, simply a truck driver. 

38.  In my view, the Judge’s approach was in substance correct.  He held that the offence was only applicable where the accused could exercise powers which “affect the public interest”.  While I would prefer to describe them as powers etc, exercisable by the accused for the benefit of the public, I do not think his Lordship’s approach is materially different.  He was right to examine the nature of the respondent’s position in the Department, asking whether he held a position of trust vesting him with relevant authority or powers and considering the relationship of the alleged misconduct to such authority or powers.  He quashed the conviction on the basis that the respondent did not occupy the kind of position which attracts liability for the offence and because his misconduct did not constitute an abuse of any relevant public office.

39.  I would accordingly dismiss the appeal and make an order nisi that the respondent should have the costs.  Any submissions as to costs should be made in writing, served and lodged within 14 days of the date of this judgment, in default of which the costs order should stand as an order absolute without further direction.

Mr Justice Mortimer NPJ:

40.  I agree with the judgment of Mr Justice Ribeiro PJ.

Lord Millett NPJ:

41.  I am in full agreement with the judgment of Ribeiro PJ and for the reasons he gives I too would dismiss this appeal.

42.  Misconduct in public office is a serious criminal offence, but it is easier to describe than to define. It covers a very wide range of disparate wrongdoing, and any attempt to produce a single all-embracing definition is likely to fail to include some particular instance.

43.  It is accepted before us that the offence is concerned with serious breaches of duty. But it does not simply mean misconduct in the performance of his duties by a government employee or civil servant. Contrary to the arguments presented to us, it has nothing to do with the breach of a contract of employment or with the obligation to avoid any conflict of duty and interest which every employee owes to his or her employer. It is concerned with the breach of duties owed directly to the general public, and duties owed to the government as employer must not be confused with those owed to the public at large.

44.  The offence can be committed only by a public official. It cannot be committed by an ordinary member of the general public. But it does not discriminate against government employees. The reason it does not do so is that the core concept is abuse of official power. It can therefore be committed only by persons who are invested with powers, duties, responsibilities or discretions which they are obliged to exercise or discharge for the benefit of the general public. Such persons may or may not be employed by the government; they may or may not be paid. They may be high officers of state or lowly employees; the offence may be committed as well by a police or customs officer as by a government minister. The common element is that the accused must have abused some power, duty or responsibility entrusted to or invested in him or her and exercisable in the public interest.

45.  Every such power, duty, discretion or responsibility is granted for the benefit of the public and for a public purpose. For the person having such a power, duty or responsibility to exercise it or refrain from exercising it for his or her own private purposes, whether out of malice, revenge, friendship or hostility, or for pecuniary advantage is an abuse of power and amounts to the offence of misconduct in public office.

46.  The expression “misconduct in public office” is a compound one. It is a mistake to treat it as involving two distinct questions: (i) was the accused the holder of a public office and (ii) did the conduct of which he or she stands accused consist of misconduct in the performance of that office? There is in reality only one question: did the conduct with which the accused is charged consist of an abuse of a power, duty or responsibility entrusted to him or her and exercisable for the public good? Splitting the question into two gives rise to two dangers; (i) that the question whether the accused was the holder of a public office may be directed to the status of the accused when it should be directed to his or her functions; and (ii) that it may overlook the fact that the misconduct with which the accused is charged must consist of an abuse of the powers, duties and responsibilities involved in the performance of those functions.

47.  In the present case the Respondent was guilty of serious and deliberate misconduct in the course of his employment by the government. He not only continued to drive while disqualified but concealed his disqualification from his employer. But any employee, whether in the private or public sector, may be (and I suppose many employees are) guilty of such conduct. Moreover, it does not constitute misconduct in public office even when committed by a public official who is entrusted with powers and duties exercisable in the public interest because it does not amount to an abuse of those powers and duties.

48.  In my opinion the Respondent was not capable of abusing any power, discretion or responsibility exercisable for the public good because he was not entrusted or invested with any. In the words of the Judge, which are incapable of improvement, he was just a truck driver.

Chief Justice Ma:

49.  For the above reasons, the appeal is unanimously dismissed.  The Court also makes an order nisi as to costs in terms of para 39 above.