SHUM KWOK SHER v. HKSAR

FACC No. 1 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2002 (CRIMINAL)

(ON APPEAL FROM CACC NO. 3 OF 2001)

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J U D G M E N T

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Chief Justice Li :

1. I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

2. In this important case the Court has had the benefit of two excellent arguments. In the course of one, Mr Michael Thomas SC for the prosecution made a powerful plea for the retention of every defensible means at the law's disposal for the maintenance of proper standards in the conduct of public affairs. And in the course of the other, Mr John Griffiths SC for the defendant made a no less powerful plea for insistence upon that measure of certainty in the criminal law without which measure of certainty the rule of law would be replaced by arbitrariness and there could be no freedom.

3. The prosecution submits that the elements of the common law offence of misconduct in public office are such that the offence is committed whenever (i) a public official (ii) in the course of or in relation to his public office; (iii) wilfully or intentionally (iv) culpably misconducts himself. If that alone formed its definition, I would regard this offence as unconstitutional for uncertainty. But I have had the advantage - the great advantage as always - of reading in draft the judgment prepared by Sir Anthony Mason NPJ. I have no doubt that the true definition of this offence is as he states it. This means, first, that the conduct must be both wilful and intentional rather than merely wilful or intentional. Secondly, it means that the conduct must be serious. Accordingly, the offence of misconduct in public office is committed when (i) a public official (ii) in the course of or in relation to his public office, (iii) wilfully and intentionally (iv) culpably misconducts himself and the misconduct is serious. I respectfully agree that, so defined, this offence is sufficiently certain to be constitutional.

4. As Sir Anthony Mason NPJ points out, the degree of certainty required will depend on the context of the law in question. In agreeing that the offence of misconduct in public office is sufficiently certain, I am crucially influenced by the fact that it is not the type of offence which criminalises conduct in such a way as to limit the exercise of a fundamental freedom eg. free speech. Where any offence of that type is concerned, I think that an exceptionally high degree of certainty of definition would be required if, quite apart from any other objection, it is not to be open to objection as unconstitutional for uncertainty. For in the absence of such a degree of definitional certainty, the whole question of what is left of the fundamental freedom concerned would be thrown into doubt. It is not by countenancing such a state of affairs that the courts discharge their duty of protecting fundamental freedoms.

5. For the reasons given by Sir Anthony Mason NPJ, I too would dismiss this appeal.

Mr Justice Chan PJ :

6. I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Ribeiro PJ :

7. I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

8. This appeal from the Court of Appeal (Stuart-Moore VP, Mayo VP and Woo JA) comes to the Court by way of the Appeal Committee certifying that the decision of the Court of Appeal involved a point of law of great and general importance, namely, whether the common law offence of misconduct in public office is inconsistent with rights guaranteed by the Basic Law, and the grant of leave to appeal. By its decision, the Court of Appeal dismissed an appeal by the appellant against his conviction of 4 offences of misconduct in public office.

Offences charged

9. The appellant (the defendant) was tried before His Honour Judge Line in the District Court on 4 charges of misconduct in public office, contrary to Common Law. At all material times, the appellant was alleged to have held the office of Chief Property Manager of the Government Property Agency ("GPA") of the Hong Kong Government.

10. The particulars of Charge (1) were that between 1 August 1994 and 31 December 1994, without reasonable excuse or justification, the appellant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting Onclever Limited ("Onclever") to be wrongfully pre-qualified as a tenderer for government contracts for management of domestic accommodation by

11. The particulars of Charge (2) were that between 1 January 1997 and 31 December 1997, without reasonable excuse or justification, the appellant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting the wrongful award of a management contract with a contract sum of $56,147,076 in favour of Onclever by

12. The particulars of Charge (3) were that between 1 January 1998 and 21 December 1998, without reasonable excuse or justification, the appellant did a series of acts calculated to injure the public interest, namely dishonestly causing and permitting the wrongful award of a management contract of the former Hong Kong International Airport at Kai Tak with an estimated contract value of $87,560,000 in favour of Onclever. Similar particulars as those enumerated under Charge (2) were repeated.

13. The particulars of Charge (4), as amended, were that between 1 February 1996 and 1 November 1999, without reasonable excuse and justification, the appellant did a series of acts calculated to injure the public interest, namely dishonestly acting partially in favour of Onclever, Southern Services Limited ("Southern Services") and their related company, AA Property Services Limited ("AA Property"), thereby causing and permitting the said companies to be awarded in excess of 90% of all short term contracts with a total contract sum in excess of $13,720,410.91 by

The facts

14. The summary of the undisputed material, which follows, is taken from the judgment of Woo JA in the Court of Appeal. His Lordship's recital of the undisputed facts is based on two statements of admitted facts pursuant to s.65C of the Criminal Procedure Ordinance, Cap. 221.

15. Between 1 August 1994 and 21 December 1998, the appellant was posted to the GPA as the Chief Property Manager, and as such, he became responsible to the Government Property Administrator.

16. The Circular on conflict of interests was issued on 4 December 1992, which contains, inter alia, the following provisions:

17. The Discovery Bay Estate comprised around 6,000 residential units. Discovery Bay Services Management Limited ("DBSM") was responsible for management at the estate. DBSM had contracted out security services and cleaning services to other companies. Since 1989, up to 1999 and continuing, Onclever had been awarded the security services contract. Cleaning work had been contracted out to another company. There were about 90 security guards at the Discovery Bay Estate.

18. There are 3 methods by which government contracts are awarded to the private sector, namely,

19. On 29 July 1994, by a memorandum dated that date, the Government Property Administrator sought approval from the Chairman of the CTB, who was the Secretary for the Treasury, for a pre-qualification exercise to shortlist a number of suitable tenderers with proven experience in residential property management. It was intended that a total of eight 3-year term management contracts would be awarded following the pre-qualification exercise. Such approval was given by the Chairman of the CTB on 11 August 1994.

20. At the assessment panel meeting on 19 October 1994, Onclever was not recommended to be pre-qualified for management contracts for non-domestic accommodation in accordance with the "Analysis of Documents" prepared by Winnie Chiu (PW1). It was recommended to be pre-qualified for management contracts for domestic accommodation.

21. LUN Kai-yeung (PW2) prepared a Revised Analysis of Documents to the effect that Onclever Limited had met all the pre-qualification requirements for domestic accommodation. The Revised Analysis of Documents was sent to the Assessment Panel members on 15 November 1994 for the record. On 25 November 1994, by a memo of that date, the CTB accepted the recommendation of the Government Property Administrator and approved the pre-qualification of Onclever and 7 other companies.

22. On 13 March 1997, by a memorandum signed by the appellant dated that date, approval was sought from the Secretary for the Treasury in respect of a Draft Tender Notice for the management of 10 military sites. The contract would be awarded through open tender. Paragraph 2 of the Draft Tender Notice read:

23. On 1 May 1997, by a memorandum signed by the appellant and dated that date, approval was sought from the Secretary for the Treasury on a revised Draft Tender Notice in which para. 2 referred to above was deleted. It was stated in that memorandum:

24. In a memorandum signed by the appellant to the Secretary of the CTB dated 7 July 1997, it was stated:

25. The CTB approved the award of the contract to Onclever at a total estimated cost of $56,147,076 for the 3-year management contract. The appellant executed the management agreement on behalf of the GPA. Patrick W Y Hui ("Patrick Hui") executed the agreement on behalf of Onclever in the presence of Paul W W Hui ("Paul Hui").

26. From April 1998, GPA intended to launch a tendering exercise to select a contractor for managing the Kai Tak site after decommissioning of the airport. The Tender Notice which was published in furtherance of this exercise specified that:

27. In a memorandum signed by the appellant to the Chairman of the CTB dated 17 July 1998, it was stated:

28. The CTB approved the award of the contract to Onclever at a maximum amount of $87.56 million. As a result, Onclever was awarded this contract. The Chairperson of the CTB and the CTB would not have approved the award of this Kai Tak management contract to Onclever had she and it known that the representations as to Onclever's experience in the property management field set out in the appellant's memo dated 17 July 1998 were untrue.

29. On 20 September 1993, the appellant, Paul Hui and one NG Kit-ling passed through Hunghom Immigration Control Point at the same immigration terminal at 1431 hours, and departed from Hong Kong. On 21 September 1993, the appellant returned to Hong Kong at 2135 hours, Paul Hui at 2031 hours and NG Kit-ling at 2135 hours.

30. The appellant had never declared any conflict of interest to his employers.

The prosecution case at trial

31. The case for the prosecution was that at all relevant times, the appellant, as the Chief Property Manager of the GPA, had misconducted himself in that public office in respect of his official dealing with Onclever and its associated companies.

32. The appellant had a younger brother, Eric Shum. Eric Shum married Stella Hui in December 1980. Stella Hui had two brothers, Paul Hui and Patrick Hui. Paul Hui was the managing director and majority shareholder of Onclever and a director of Southern Services. Patrick Hui was the president of Onclever and a director and shareholder of Southern Services.

33. In 1992, the appellant's wife and Stella Hui purchased a flat in Cheung Chau Island. The appellant gave Stella Hui money each month for the mortgage on the property. The appellant's wife and Stella Hui set up a computer company which worked for, and received income from, Onclever.

34. Before 1994, Eric Shum was employed by Paul Hui to fix Onclever's computers and maintain its computerised accounting system. When Onclever was pre-qualified for Government contracts in 1994 the appellant told Eric Shum to stop working for Paul Hui.

35. Onclever was a security company, providing security services to buildings. It did not have 5 years' experience in property management: this was one of the conditions of eligibility for pre-qualification to tender for large government contracts. Despite knowing this lack of experience on the part of Onclever, in 1994 the appellant pushed Onclever's cause and wrongly caused it to be qualified. Onclever and its associated companies were treated preferentially by the appellant by always being selected for government contracts.

36. In 1995, Mr Tanner (PW9) very soon after taking over from the appellant (who had moved to another post in the GPA) had doubts as to whether Onclever should have been pre-qualified due to their lack of experience. He successfully recommended to the CTB that they be removed for this reason. This was a unique event and it was common knowledge in the GPA where Mr Tanner's building management division and the military estates division, where the appellant then worked, had offices on the same floor.

37. In 1997, the appellant wrongfully caused Onclever to be awarded the $56 million management contract for government military sites despite its lack of the required qualification for having had 5 years' experience in property management. In 1998, the appellant did the same in relation to the $87 million Kai Tak contract.

38. The appellant could authorize short-term contracts. He favoured Onclever, Southern Services and AA Property in respect of such contracts by instructing a subordinate, Chan Ping-kwong (PW12), that they were always to be invited to tender for such contracts. These instructions were referred to at the trial as "the Chan instructions". The companies were awarded over 90% of these short-term contracts between April 1996 and December 1998 to a value in excess of $13 million. The appellant knew the family connection between himself and the Hui brothers ("the relationship") but never declared the relationship or any conflict of interest and never abstained from the decision making process in relation to these matters.

The judgment of the trial judge

39. The trial judge concluded that the defence case was not credible and rejected it. Material aspects of the appellant's case are dealt with below. He accepted the evidence given by the prosecution witnesses and rejected that of the appellant and his witnesses. The trial judge convicted the appellant on the 4 charges and sentenced him to concurrent terms of 9 months imprisonment (which sentence was increased to concurrent terms of 30 months imprisonment by the Court of Appeal upon an application for review by the Secretary for Justice).

40. The judge made the following findings. At latest since his visit to the Mainland with Paul Hui in September 1993, the appellant had known that Paul and Patrick Hui were brothers of Stella Hui, the wife of the appellant's younger brother, Eric Shum. Realising that the relationship posed a conflict of interests, the appellant failed to disclose the relationship to anyone in the GPA. Instead, he pushed Onclever to qualify in the pre-qualification exercise for Government tenderers though he knew perfectly well that Onclever did not have the required experience of 5 years in property management. He gave the Chan instructions in awarding contracts of less than $500,000, over which process he had control, and that resulted in over 90%, totalling in excess of $13 million, of such contracts in the relevant period being awarded to Onclever and its associated companies, Southern Services and AA Property. He also recommended Onclever to be awarded the management contract for the 10 military sites worth $56 million and that for the Kai Tak site worth $87 million, misrepresenting that it had the required experience. The Judge found that the reasons for the appellant's non-disclosure was "his desire to help and favour Onclever" and that in each case he was partial.

41. The judge said:

42. The judge went on to find that the appellant acted dishonestly, applying the test in R v. Ghosh [1982] QB 1053, by deliberately not disclosing a connection that itself prompted a public officer to favour a company in a significant way. The Judge further found that the appellant "must have ... realised" that what he did was dishonest.

43. He also found that the appellant's voice was the only voice raised in favour of the proposition that Onclever had met the criteria for pre-qualification, that he knew that Onclever did not meet the criteria, that he came to the meeting of the assessment panel knowing that Onclever did not do so but with the intention of having them pre-qualified if he could and that he successfully persuaded the panel to do so.

44. The judge found, in relation to the first three charges that Onclever was wrongfully pre-qualified and awarded the two contracts, that it was the appellant who caused the wrongful qualification and that, in relation to the fourth charge, that the appellant gave the Chan instructions.

45. The judge further found that the appellant's acts were calculated to injure the public interest in that the appellant, in each case, tilted in favour of Onclever what should have been a level playing-field.

The decision of the Court of Appeal

46. The Court of Appeal unanimously dismissed the appellant's appeal on the eleven grounds argued. Of these grounds, only the ground that the offence of public misconduct is so vague, uncertain and ill-defined that it is inconsistent with arts 9, 14.2, 14.3 and 26 of the International Covenant on Civil and Political Rights ("ICCPR") is material to the appeal to this Court. The Court of Appeal considered that the offence was not so vague, uncertain or ill-defined as to be inconsistent with the ICCPR.

Appellant's case in this Court

47. The appellant accepts that misconduct in public office was an offence at common law but contends that it is too vague, uncertain and ill-defined to comply with arts 8, 28 and 39 of the Basic Law and arts 9, 14.2, 15.1 and 26 of the ICCPR.

48. Central to the appellant's case are the remarks made by Lord Widgery CJ in R v. Dytham [1979] QB 722, which were quoted and applied in the courts below in this case. In that case, his Lordship said (at 727-728) with reference to the charge of misconduct in public office in that case:

49. The appellant identifies various elements in this statement which are said to be uncertain. They relate both to the elements of the offence and its scope. Thus, the appellant argues that the elements of "culpability", "calculated to injure the public interest" and of conduct that calls for "condemnation and punishment" are uncertain, as is the requisite mens rea or culpable state of mind as well as the question whether it is one or more than one offence. The appellant also argues that, to the extent that dishonesty is an element in the offence, the Reg v. Ghosh test, applied by the trial judge, is uncertain and arbitrary. According to the argument, the process of reaching a conviction is therefore "arbitrary", contrary to art. 9 of the ICCPR. The appellant also argues that, in so far as it is necessary to embark upon research into constitutional and jurisprudential history in order to throw light on the elements of the offence, the law is insufficiently accessible and contravenes art. 39 of the Basic Law. Further, the appellant contends that the extension of the offence beyond its limits as described in the old authorities violates the principle against retrospective imposition of criminal liability contrary to art. 15 of the ICCPR.

Respondent's case in this Court

50. The respondent's case is that the characteristics of the common law offence of misconduct in public office are sufficiently certain to satisfy the standard of legal certainty. According to the respondent, the essential characteristics of the offence are:

Articles 28 and 39 of the Basic Law and arts 9, 14, 15 and 26 of the ICCPR

51. Article 28 of the Basic Law provides:

52. Article 39 of the Basic Law stipulates that the provisions of the ICCPR as applied in Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. The second paragraph of the article goes on to provide:

The Hong Kong Bill of Rights Ordinance (Cap. 383)

53. The Hong Kong Bill of Rights Ordinance provides for the incorporation into the laws of Hong Kong of the provisions of the ICCPR as applied to Hong Kong. The incorporated provisions are contained in the Hong Kong Bill of Rights ("the Bill") which is set out in Part II of the Ordinance. Articles 5(1), 11(1), 12 and 22 of the Bill incorporate the provisions of arts 9.1, 14.2, 15.1 and 26 of the ICCPR in the same terms. Accordingly, the provisions of the Bill are the embodiment of the ICCPR as applied to Hong Kong (HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 at 455 BE, per Li CJ; 463 J, per Bokhary PJ).

54. Article 5(1) of the Bill provides:

55. Article 11(1) of the Bill provides:

56. Article 12(1) of the Bill provides:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed ..."

57. Article 22 of the Bill provides:

Mr Griffiths SC for the appellant did not advance oral argument in support of the case based on art. 22. Accordingly, I shall say no more about it.

The interpretation of the Basic Law and the Bill

58. It is established that art. 39, being part of Ch. III of the Basic Law which provides for the fundamental rights and duties of the residents of the HKSAR, is to be given both a purposive and generous interpretation (Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at 28D-29A, per Li CJ). The same approach is to be adopted to the provisions of the Bill as the object of those provisions is to guarantee the fundamental rights and freedoms of the residents of the HKSAR.

59. In interpreting the provisions of Ch. III of the Basic Law and the provisions of the Bill, the Court may consider it appropriate to take account of the established principles of international jurisprudence as well as the decisions of international and national courts and tribunals on like or substantially similar provisions in the ICCPR, other international instruments and national constitutions. (See, for example, Ahnee v. DPP [1999] 2 AC 294 at 306, where the Privy Council, in construing s.10(4) of the Constitution of Mauritius which was in terms virtually identical with art. 12(1) of the Bill, applied to art. 10(4) the interpretation given by the European Court of Human Rights in Sunday Times v. United Kingdom (1979) 2 EHRR 245 to the expression "prescribed by law" in art. 10(2) of the European Convention on Human Rights.)

The principle of legal certainty and the requirement of accessibility

60. International human rights jurisprudence has developed to the point that it is now widely recognised that the expression "prescribed by law", when used in a context such as art. 39 of the Basic Law, mandates the principle of legal certainty. This principle is likewise incorporated in the expression "according to law" in art. 11(1) of the Bill.

61. As to art. 5(1), the expression "established by law" is used. However, there is a question as to the scope of art. 5(1), whether it is only concerned with laws relating to arrest or detention before trial or whether it extends to the substantive law for breach of which the person is charged. That question was not fully argued in this case. Since the appellant's case, based on art. 5(1) with the wider scope, does not add to his case based on art. 39 of the Basic Law or art. 11(1) of the Bill, it is unnecessary to consider the question of the scope of art. 5(1) in this case. Accordingly, I shall say nothing more on art. 5(1).

62. The decisions of the European Court of Human Rights authoritatively establish that the expression "prescribed by law" in art. 10(2) of the European Convention on Human Rights and Fundamental Freedoms ("the European Convention") incorporate the requirements that the relevant law be certain and that it be adequately accessible (Sunday Times v. United Kingdom (1979) 2 EHRR 245 (the thalidomide case); SW v. United Kingdom (1995) 21 EHRR 363 at 398; Hashman and Harrup v. United Kingdom (1999) 30 EHRR 241). The Supreme Court of Canada has expressed the principle of legal certainty in like terms in the context of fundamental rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms (R v. Nova Scotia Pharmaceutical Society (1992) 74 CCC (3d) 289; R v. Morales (1992) 77 CCC (3d) 91), as indeed has the Privy Council in interpreting and applying the Constitution of Antigua (De Freitas v. Ministry of Agriculture [1999] 1 AC 69 at 78-79, per Lord Clyde).

63. In Sunday Times v. United Kingdom, the Court rejected an argument that the English law of contempt of court was so vague and uncertain and that the principles of contempt of court enunciated by the House of Lords in Attorney-General v. Times Newspapers Ltd [1974] AC 273 so novel that the restraint imposed upon freedom of expression by the law of contempt could not be considered as "prescribed by law" within the meaning of art. 10 of the Convention. The majority, with reference to that expression, said (at 271, para. 49):

64. In Hashman and Harrup v. United Kingdom (1999) 30 EHRR 241, where conduct contra bonos mores was held to be too vague and imprecise to justify a restriction on the applicants' liberty of action in the form of an order binding them to keep the peace and be of good behaviour, the European Court of Human Rights pointed to the tension between requiring a law to be formulated with sufficient precision and the desirability of avoiding rigidity in the law. The Court said (at para. 31):

65. In conformity with this statement, in SW v. United Kingdom (1995) 21 EHRR 363, the Court rejected an argument that the offence of marital rape violated art. 7 of the European Convention (which is identical with art. 12(1) of the Bill) relating to retrospectivity. The argument was based on the recognition by the House of Lords that the old principle that a husband could not rape his wife no longer formed part of the law. The Court, accepting that art. 7 applied to a common law offence, stated (at para. 36 ):

See also Reg v. Cotter [2002] EWCA Crim 1033 at paras 35-36.

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 Anonymous (1704) 6 Mod 96 (Case 136), the Court said:

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

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. Thus, Stephen's Digest 9th Edn (1950), art. 142 stated

In R v. Borron (1820) 3 B & Ald 432, a case concerning the conduct of a magistrate, Abbott CJ stated (at 434) that the question was "from what motive had [the act] proceeded; whether from a dishonest, oppressive, or corrupt motive." And, in R v. Marshall (1855) 4 EL & BL 475, Lord Campbell CJ said that "a judge who maliciously obstructs the course of justice is guilty of a misdemeanour". Similar statements have been made in other cases. (See, for example, R v. Young and Pitts (1758) 1 Burr 556; Commonwealth v. Steinberg (1976) 362 A 2d 379). On the other hand, there are other authorities which state that a breach of duty on the part of a public official committed with wilful intent is all that is required to make out the offence. (See, for example, Bacon's Abridgement 1740 ed at 744; R v. Halford (Case 223) (1734) 7 Mod 193; Question of Law Reserved (No. 2 of 1996) 88 A Crim R 417 at 418, per Doyle CJ).

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" (R v. Llewellyn-Jones (1967) 51 Cr App R 4 at 6); that "the offence is not easily capable of exhaustive definition" and "there is some uncertainty as to the precise content of the offence and even its correct title" (Question of Law Reserved (No. 2 of 1996) at 420, 438); that "the very notion of misfeasance in public office ... imports more nebulous issues [than murder] that are less easy to define" (Ex parte Telegraph Group [2001] 1 WLR 1983 at 1993); and that it is "obscure and often ill-defined" (PD Finn, "Official Misconduct" [1978] 2 Crim LJ 307 at 318). Nonetheless, it is clearly established that it is an offence at common law (R v. Llewellyn-Jones).

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

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 (at 155-156) 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 18th and 19th 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.

R v. Dytham

74. It was in the light of the law as it had then developed that R v. Dytham was decided. In that case, the appellant, who was a uniformed constable, was present at and a witness to the criminal offence of violent assault on a man by others resulting in the man's death. The appellant failed to carry out his duty as a police constable by omitting to take any steps to preserve the Queen's peace or to protect the person of the man or to arrest or bring to justice his assailants. The appellant was convicted. The English Court of Appeal dismissed an appeal from the conviction.

75. Lord Widgery CJ, who delivered the judgment of the Court, in referring to the earlier cases, said (at 726C):

His Lordship went on to discuss the amended count in the indictment in the case before the Court. Speaking of neglect of duty, his Lordship observed (at 727G-728A):

76. Two points need to be made about R v. Dytham. The first is that when Lord Widgery's remarks in the last paragraph just quoted are read in context, they are not to be understood as a definition of the offence of misconduct in public office or as a definition of the elements of the offence. The terms used by his Lordship "calculated to injure the public interest so as to call for condemnation and punishment" are not the language of definition. Read in context, the words suggest that his Lordship was endeavouring to convey the idea that the conduct complained must be injurious to the public interest and of a sufficiently serious nature to warrant conviction and punishment. The linkage his Lordship makes with the idea of culpability reinforces this view of his Lordship's purpose. In this respect, it is to be noted that Lord Widgery employs the concept of culpability to embrace two different matters, namely, first, the absence of reasonable excuse or justification and, secondly, that the conduct complained of may not involve corruption or dishonesty but must be of a sufficiently serious nature.

77. The second point is that there was no clear previous authority for the proposition that, in any category of case of misconduct in public office, the prosecution must prove to the satisfaction of a jury, as elements of the offence, that the conduct of the defendant was calculated to injure the public interest so as to call for condemnation and punishment.

78. For these reasons I do not accept the appellant's principal submission that the offence as defined in R v. Dytham is insufficiently precise to constitute "law" within the meaning of art. 11(1) of the Bill or to satisfy the requirements "prescribed by law" in art. 39 of the Basic Law and "established by law" in art. 5(1) of the Bill. This conclusion, however, by no means disposes of the appellant's case.

Question of Law Reserved (No. 2 of 1996)

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.

80. Doyle CJ considered (at 418) that the object of the offence was correctly stated by PD Finn (as he then was) in his article "Official Misconduct" (1978) 2 Crim LJ 307 when he said (at 308):

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, notably the more recent cases including R v. Dytham and Question of Law Reserved (No. 2 of 1996) at 418, per Doyle CJ.

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:

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 considered a statutory provision which made it an offence "wilfully" to neglect a child in a manner likely to cause him unnecessary suffering or injury to health. 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.

The offence is not imprecise or vague or arbitrary

88. The common law offence as so explained is not so imprecise as to offend the requirement of Basic Law art. 39 or of arts 5(1) and 11(1) of the Bill. Nor is it arbitrary within the meaning of art. 28 of the Basic Law. The offence is unusual in that it applies to various forms of misconduct by a public officer with the result that what the prosecution needs to establish varies with the form of culpable misconduct alleged. That variation does not, however, lead to the existence at common law of more than one offence. Despite its variations, it has always been recognised as the one offence.

89. In expressing the view that there is no relevant imprecision, I bear in mind the passages in Sunday Times v. United Kingdom, Sabapathee v. The State [1999] 1 WLR 1836 and R v. Nova Scotia Pharmaceutical Society (1992) 74 CCC (3d) 289 to the effect that a law must be adequately accessible in the sense that it gives a person an adequate indication of the law relevant to his situation so that (if need be with advice) he can regulate his conduct. On the other hand, it is well settled that the degree of precision required will vary according to the context of the law. In Sabapathee v. The State, Lord Hope of Craighead, speaking for the Privy Council, said (at 1843):

90. To similar effect are the remarks of Gonthier J in R v. Nova Scotia Pharmaceutical Society in delivering the judgment of the Supreme Court of Canada. He noted (at 306c) that the threshold for a holding of vagueness is relatively high. He went on to say (at 310b-c):

He continued (at 311c-d):

Gonthier J concluded his discussion of the point with comments which are particularly apposite to the case in hand. He said (at 312h-313c):

91. The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers. An alternative way of dealing with misconduct by public officers would be to enact a statute formulating specific offences for particular categories of misconduct in public office. The adoption of that course would involve a loss of flexibility and run the risk that the net would fail to catch some forms of serious misconduct. To suggest that the offence requires further definition would be to pursue a degree of definition which is unattainable, having regard to the wide range of acts and omissions which are capable of amounting to misconduct by a public officer in or relating to his office. The offence serves an important purpose in providing a criminal sanction against misconduct by public officers.

92. The broad terms in which the offence is cast are sufficient to enable the public officer to regulate his conduct. The elements of the offence, quite apart from its title or description, alert the public officer to the risk that he runs by engaging in misconduct and that is all that art. 39 of the Basic Law and art. 11(1) of the Bill require. The offence targets misconduct as the relevant act or omission to be avoided, thereby providing the necessary "guidance", to use the term used by Gonthier J in the Nova Scotia case. A public officer, familiar with his powers and duties, should have no difficulty in appreciating that neglecting to perform his duty with wilful intent and dishonestly, corruptly and maliciously exercising his powers and discretions constitute misconduct which is criminally culpable as already explained.

93. Mr Griffiths SC mounted a separate attack on the Reg v. Ghosh test, invoking the criticism made of that test by the English Law Commission. In Reg v. Ghosh [1982] QB 1053, the question was whether the trial judge's direction correctly instructed the jury as to the word "dishonestly" in s.1 of the Theft Act, 1968. The Court of Appeal held that the word described the state of mind and not the conduct of the accused and, therefore, the test of dishonesty was subjective but the standard of honesty to be applied was the "ordinary standards of reasonable and honest people" (at 1064). In the result, the jury should have first considered whether the appellant had acted dishonestly by the standards of ordinary and honest people.

94. It was that test that the trial judge applied in the present case and it was the subject of the Law Commission's criticism in its Consultation Paper No. 155 "Legislating the Criminal Code - Fraud and Deception". In paras 5.11-5.18 of the Paper, the Commission criticised the Ghosh test on the ground that it required fact-finders to set a moral standard of honesty by making a semantic and moral inquiry in circumstances where there is no single community norm or standard of dishonesty. The standard in Reg v. Ghosh is an objective standard. A similar standard has been applied in other areas of the law without attracting adverse comment (see, for example, Twinsectra Ltd v. Yardley [2002] 2 WLR 802). Granted the difficulty of ascertaining what are the ordinary standards of reasonable and honest people, it is nonetheless a task which is not so imprecise or vague as to violate the relevant requirements of art. 39 of the Basic Law or of art. 11(1) in the Bill. Nor can it be characterized as an arbitrary standard. A further point to be made in relation to the Law Commission's criticism is that, in framing standards to be applied by tribunals of fact, the search for definition can be carried too far. A higher degree of definition of some standards - "reasonable" is in its various applications in both the civil and the criminal law an example - is often unattainable.

95. If, contrary to the conclusion I have reached, the offence were to be regarded as having been defined by Lord Widgery CJ in the terms which have been the target of Mr Griffiths' challenge, then the case of imprecision would have been stronger. Culpability of such a degree "that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment" might not provide an adequate "basis for legal debate and coherent judicial interpretation" and where judicial interpretation is not possible the law is constitutionally vague (R v. Canadian Pacific Ltd (1995) 99 CCC (3d) 97 at 140, per Gonthier J). That, however, is not the case on the conclusion I have reached.

96. This case is distinguishable from Reg v. Withers [1975] AC 842 where it was held that the law knew no such generalised offence as effecting a public mischief. There the House of Lords concluded, despite the existence of a considerable body of authority, that the so-called offence left too much to a jury because it lacked sufficient and judicial cogency and precision and because it was contrary to the spirit of the common law (see at 870 FG, per Lord Simon of Glaisdale). Their Lordships considered that, if they were to develop the law by creating a general offence of public mischief they would be creating a new offence, this being an undertaking that was impermissible (860 EF, per Viscount Dilhorne; 867 EF and 868 AB, per Lord Simon of Glaisdale; 877 GH, per Lord Kilbrandon, where their Lordships followed the authority of Reg v. Knuller [1973] AC 435).

97. Hashman and Harrup v. United Kingdom (1999) 30 EHRR 241 is to be distinguished from the present case for somewhat similar reasons. Conduct contra bonos mores lacked any sufficient precision to enable it to serve as a standard or guide by which people could regulate their conduct. It was, to use an expression employed by Lamer CJC in R v. Morales (1992) 77 CCC (3d) 91 at 101, no more than a "standardless sweep".

98. Mr Griffiths SC made the valid point that, in conformity with Reg v. Withers and Reg v. Knuller, it was not for this Court to create a new offence as an answer to a perceived problem of imprecise definition or accessibility. That said, it is well established that, by employing accepted and traditional judicial techniques, a court is entitled, indeed bound, to clarify the existing law where clarification is needed so long as, in doing so, the court does not extend the boundaries of criminal liability. To do so would create retrospective criminal liability and offend the provision of art. 12(1) of the Bill. The offence of misconduct in public office, as I have explained it, is consistent with the existing authorities. The explanation amounts at most to a clarification which, even if it does not narrow the offence, does not expand it.

99. In this case, no issue was raised as to the meaning and scope of the expression "public office". The appellant clearly fell within the expression. Just how far it extends may perhaps be a question for the future. On the later authorities, the expression has been understood as having a wide application. See Henly v. Lyme Corp (1828) 5 Bing 91, 130 ER 995; R v. Whitaker [1914] 3 KB 1283; R v. Bowden [1995] 4 All ER 505.

Conclusion

100. The particulars given of the four charges and the facts found by the trial judge bring this case within the offence as it has been explained. The appellant was a public officer. The acts and omissions complained of took place in the course of that public office. His relevant duties and responsibilities, especially in relation to conflicts of interest and the obligation not to confer benefits on or favour relatives and friends were set out in the Circular. His departures from his duties and responsibilities were clearly established. In relation to these departures, the trial judge found that the appellant acted dishonestly, must have realised that what he was doing was dishonest and concluded that the reason for his non-disclosure of his connection with Onclever was "his desire to help and favour Onclever". Indeed, the trial judge found that his recommendation of Onclever for pre-qualification was "due to his hidden connection to Onclever". Accordingly, his conduct was wilful in that he was aware of his responsibilities, and realised that what he was doing was dishonest. And his conduct was culpable, being without reasonable excuse or justification and dishonest because his motive was to benefit and favour Onclever.

101. In the result the appeal should be dismissed.

Chief Justice Li:

102. The Court unanimously dismisses the appeal.