HKSAR v. TSANG YIP FAT RICHARD

HCMA1125/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1125 OF 2002

(ON APPEAL FROM KCCC 11089 OF 2002)

----------------------

-----------------------

---------------------

J U D G M E N T

----------------------

1. The appellant was convicted on 16 October 2002 of two counts of being a public officer, namely a Principal Programme Officer with Radio Television Hong Kong ("RTHK"), a department of the Hong Kong Special Administrative Region Government that in the course of or in relation to his public office, he wilfully and intentionally culpably misconducted himself. This offence is contrary to Common Law. The appellant was sentenced to four months' imprisonment in respect of each count. The sentences to run concurrently with each other and each sentence suspended for a period of two years. He now appeals his conviction in respect of both charges.

2. The 1st charge related to a period between 1 March 1999 and 17 September 1999 and the 2nd charge from 1 March 1999 to 13 December 2000. It was common ground that at all relevant times the accused was a Principal Programme Officer and head of RTHK Radio 4 which was a department of RTHK. It was accepted that the appellant was a public officer.

3. RTHK 4 was a small department having some 10 persons employed at the relevant time. There were two production assistants on the staff of the department, a Miss Chan and a Miss Chow. They were employed as Departmental Contract Staff Category II ("DCSC II"), and were described as freelance contract staff. They were paid a monthly salary and that salary was below the government Master Pay Scale point 22.

4. Throughout the relevant period, the authority for approving terms of employment and payments to employees for this category of staff was vested in the division head of RTHK, Assistant Director of Radio. He had the authority to approve a revision of the monthly salary paid to freelance contract staff. In practice the application for such a revision would be submitted to the Standing Committee on Contract Staff to see if the committee agree or object to the revision. It is common ground that the appellant did not have the authority to alter terms of service or salaries.

5. In March 1999, the RTHK policy in respect of salaries and fees was revised to reflect the then government policy that increases should not readily be granted. There was in fact a wage freeze for civil servants.

6. In addition to the contract of employment referred to above, some employees were employed by RTHK4 on an ad hoc basis as departmental contract staff III ("DCSC III") I will describe them as freelance part-time workers. In order to record payments to this category of staff a system called the "9A form system" was used. A DCSC III staff would fill in personal particulars in the form which included details of their bank account into which the fee was to be paid. The form went to the accounts department and on completion of work, a 9A form would be prepared by one of the witnesses. It would be checked and signed by the appellant and approved by the then Head of English Programme Service and sent to the accounts office who would process payments and arrange for the relevant sum to be paid into the account of the freelance part-time worker.

7. As I have said before, Miss Chan and Miss Chow were DCSC II and on contracts and were not to be paid by way of the form 9A, nor were they entitled to be paid overtime. In the event that they performed overtime duties, they would be compensated with time-off in lieu. Under the rules of employment, an employee on DCSC II terms could not also be employed as DCSC III. Both Miss Chan and Miss Chow's contracts were renewed in March 1999 at the same monthly salary as before. Soon after she had signed her contract Miss Chan saw the appellant and asked for an increase in her monthly salary. At first the appellant refused but, a day or so later, spoke to Miss Chan and said he could increase her salary by 5% per month. Miss Chan asked if Miss Chow would receive a like increase and the appellant agreed.

8. Both Miss Chan and the appellant knew that, were the application to increase salary to be processed in the normal way by seeking the approval of the Standing Committee on Contract Staff, it would not be granted due to the wage freeze. The magistrate accepted that the superior of the appellant, Mr Jagjit Dillon, was spoken to by the appellant and the magistrate accepted that what happened thereafter was with the approval of Mr Dillon. Since a new contract at a greater salary was not possible, a way was adopted to pay the additional 5% to Miss Chan and Miss Chow by having them fill out the personal particular forms which applied to freelance part-time workers with the name, address and bank account of a relative in each case so that the money would be paid into that account as though the holder of that account were a freelance part-time worker DCSC III. It was accepted by the magistrate that the appellant consulted not only Mr Dillon but those subordinate to him and that the system was common knowledge among them. The accounts department was not notified as it was known that they would not approve the method of payment. Thereafter Miss Chan and Miss Chow were paid through relatives by the use of the form 9A system.

9. The magistrate accepted that the appellant was a public officer and that he was acting in the course of or in relation to his public office when he adopted and carried out this means of payment. It is accepted that the appellant gained nothing from this method of payment. But it is clear that a benefit was received by Miss Chan and Miss Chow who were not entitled to overtime payments in cash nor an increase in salary nor payment of both as DCSC II and DCSC III. If the sum of 5% increase is to be viewed as a salary increase, then it is a benefit which would otherwise not be paid to the recipients but for the actions of the appellant. If the sum is to be viewed as overtime payments, then its receipt in cash rather than time-off in lieu is a benefit to the recipients. No matter how the argument is mounted, the actions of the appellant resulted in the payment out by RTHK of monies that otherwise would not have been paid and resulted in a benefit to each recipient.

10. The amended perfected grounds of appeal against convictions were that :

(1) the learned magistrate erred in fact and law in finding that the appellant acted dishonestly;

(2) the learned magistrate erred in fact and law in finding that the appellant "wilfully and intentionally culpably misconducted himself";

(3) there was a material irregularity in the trial as the prosecution failed to disclose to the defence in advance of the trial materials relating to another employee of RTHK where payment was made to her through in a bank account of her husband - the materials only being supplied after the end of the trial;

(4) there was a further ground relating to the disclosure to the defence of materials which I dealt with prior to the hearing in a ruling, having examined those materials, I ruled they were not material which the respondent was obliged to disclose to the appellant.

11. In Shum Kwok Sher v. HKSAR [2002] 3 HKC 117 at p.140, Sir Anthony Mason NPJ said :

" 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 intentional exercises a power or direction 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."

The learned judge then went on to consider the two qualifications. The first related to the word "wilfully" in respect of which he said :

" ...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."

The learned judge then went on to say :

" 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."

12. Mr McCoy for the appellant in his argument before me raised the issue of seriousness. He argued that the matter was known to Mr Dillon, the appellant's superior and to his subordinates and that no loss to government occurred because the payments equated to overtime performed and work done by Miss Chan and Miss Chow which they were entitled to receive in any event. I do not agree. The magistrate was right in finding that the offence was serious. Whilst there were suggestions in the evidence given by Miss Chan that overtime was a consideration it is also quite clear from the evidence that Miss Chan went to the appellant for an increase in salary consequent upon having heard of an increase in salary being given to an employee in another section who performed similar work. As I have said above there was a real benefit to Miss Chan and Miss Chow in respect of the use of the form 9A method of payment and the magistrate was right to have decided that this matter was serious in the sense referred to in Shum Kwok Sher.

13. In respect of the 1st ground of appeal, it is common ground between the parties that the test to be applied in respect of dishonestly is that of R. v. Ghosh [1982] 1 QB 1053, where Lord Lane said at p.1064 :

" In determining whether prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did."

14. In his findings, the learned magistrate adopted the test set out in R. v. Ghosh. He said in his Statement of Findings :

" I accepted fully the Appellant is a man of high integrity. I have no doubt that he did not have a corrupt or malice motive. I believed he gave RTHK priority in his decisions and considerations. I also accepted that a motive of what the Appellant had done was for the smooth functioning of RTHK. However, when a person does something, there may be more than one motive. I am sure that the Appellant had more than one single motive at the material time. He had put in place a large scale reform, the launching of which was imminent. An official launching ceremony was to be held within days. PW1 was an experienced, efficient and reliable staff. Losing her at this critical time would be extremely undesirable. The reform was crucial both to the Radio and undoubtedly to the Appellant. It must be crucial to everybody involved, including the Appellant as the Head. I found that the Appellant had let these pressing circumstances cloud his judgment. He adopted a scheme which he knew was against the rule. He knew the scheme would not work if the top management or the account office became aware of the facts. He therefore concealed the facts to the top management and the accounts office. He did so because he had a dishonest motive and he knew it was dishonest."

15. Mr McCoy argued that since this method of payment by way of the form 9A had been used by others on other occasions and since the method of payment in these circumstances was known by the immediate superior of the appellant, Mr Dillon, and to his subordinates, that the intent of the appellant was not dishonest. That what was done was with the knowledge and the approval of his superior and was so broadly known within the small section which he headed that such openness could not amount to dishonesty. I do not agree. The magistrate had in mind the test in R. v. Ghosh, the fact that many people know of an action does not make it honest. Whilst the magistrate accepted that Mr Dillon knew of and approved the process, it was also clear that the appellant by concealing the manner of payment from senior management and by not revealing the true facts to the accounts department whom he knew would not approve of the practice, appreciated what he was doing and that what he was doing was dishonest. The magistrate directed his mind to the appropriate test and the facts which he should use in applying that test. I am satisfied when he came to the decision that the appellant had a dishonest motive and knew it was dishonest he was entitled to do so on the facts before him and upon a proper application of the two limbs of the test. There was nothing in the 1st ground of appeal.

16. The 2nd ground of appeal argues that the learned magistrate erred in fact and in law in finding the appellant "wilfully and intentionally and culpably misconducted himself". I have dealt with the definition in Shum Kwok Sher of wilful in that it "signifies knowledge or advertence to the consequences as well as intent to do an act or refrain from doing an act". The magistrate in his findings found that the appellant knew that he was committing the act and that he intended to do so. He deliberately used a way to circumvent what he saw as an unreasonable freezing of salaries by government in a case where he saw merit in an increase in remuneration for particular employees in circumstances where he saw a benefit to the section for which he worked. The magistrate was sure it was culpable misconduct.

17. In Shum Kwok Sher at page 139 Sir Anthony Mason NPJ said this :

"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."

18. The case before the learned magistrate falls within the first part of the quotation. The magistrate found that the conduct of the appellant was dishonest considered in the light of the test in R. v. Ghosh. It is clear further there was a benefit or advantage to Miss Chan and Miss Chow in as much as they received by this payment method an advantage results of a 5% increase in their salaries. The conditions of their employment still provided they were entitled to time-off in the lieu of overtime, so the result of the payment by way of form 9A was clearly a 5% increase in salary with the overtime benefit secured as it always had been. The magistrate was entitled to find in fact and in law that the appellant "wilfully and intentionally culpably misconducted himself ". There is nothing in this ground of appeal.

19. The final matter that I must consider is whether the failure by the prosecution prior to or at the time of the trial to disclose to the defence materials relating to a lady employed by RTHK which related to payment by way of form 9A constituted a material irregularity at the trial. Mr McWalters has properly conceded the disclosure of the use of the form 9A in respect of that lady outside the period covered by the two charges in this matter amounted to a non-disclosure. It would have been difficult for him to have argued otherwise given that the material was disclosed by the prosecution to the defence on 23 January 2003 after the completion of the trial. If there was no requirement for such a disclosure, it would not have been made then. I accept therefore that there was a failure to properly disclose material which may have been relevant to the trial, the question is whether that amounted to a material irregularity. In the course of his recitation of the facts the magistrate accepted the evidence of a Mr Nealon who gave evidence that there had been misuse of the 9A form in relation to a lady during the period covered by the charges in this matter; secondly, evidence of misuse of the 9A form since 1997 and the approval of it by a Cheng San Man, thirdly, that Amy Kwong had informed the appellant of it and fourthly, that a George Mak participated in it.

20. The use of the forms 9A revealed to the defence after the trial showed that two form 9As had been used by Mr Nealon at RTHK3 after the period in the two charges herein and up to March 2001. Mr McCoy argues that had the magistrate been aware that the period covered by Mr Nealon's use of the form 9As spanned 16 months from December 1999 to March 2001 instead of the period from 1 March 1999 to December 2000 and that there were five instances of the use of the form 9A in respect of that lady rather than the three produced to court, he would have taken a different view of the prevalence of the practice and whether or not it should be held to be dishonest. The issues to be considered by the magistrate were fully covered by him and were properly in the forefront of his mind. He found that the practice had been used since 1997, some two years prior to the earliest date in these charge and that they continued up to December 2000, the last date in these charges. He knew of three instances used by Mr Nealon. I cannot see that to have been made aware that there were two further instances of the use of the form 9As from December 2000 to December 2001 could or should have made any difference the way that he viewed the matter. Nor would it have given material to the defence which would have either increased the scope of cross-examination or made that cross-examination more effective. I find therefore that although there had been a non-disclosure to the defence, the value or the use of that material in the hands of the defence was so marginal that notwithstanding the arguments of Mr McCoy, who as usual set out his arguments in his very effective written submission which I have considered in full, the non-disclosure by the prosecution was not a material irregularity in the trial. This ground of appeal must also fail.

21. The appeal against conviction is dismissed.