HKSAR v. CHAN TAK MING, PADDY

HCMA851/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   (Appellate Jurisdiction)

   MAGISTRACY APPEAL NO. 851 OF 2009

   (ON APPEAL FROM KCCC 1234 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The appellant appealed against both his conviction after trial at Kowloon City Magistracy by D.I. Thomas Esq of a charge of misconduct in public office, contrary to common law, and the sentence of $50,000 imposed upon him in consequence of his conviction. The magistrate entered no verdict in respect of the alternative charge, which he ordered to lie on the file of the court. At the outset of the hearing Mr Macrae SC, who appeared from the appellant, indicated that the appeal against sentence was abandoned.

THE CHARGES

2.  The appellant stood trial on two charges, the second in the alternative to the first charge of misconduct in a public office. The “Particulars of Offence” of Charge 1, as re-amended in the course of the trial, alleged that :

“… sometime between the 1st day of January 2007, and early February 2007 in Hong Kong, you, being a public official namely [a] senior medical officer of the Queen Elizabeth Hospital, in the course of or in relation to your public office, without reasonable excuse or justification, wilfully misconducted yourself by obtaining for your personal use patients’ personal particulars from documents and/or data-handling systems of the said hospital or the Hospital Authority.”

In the alternative, Charge 2 alleged that between mid-January and early February 2007 the appellant had obtained access to a computer, namely a computer of the Hospital Authority, with a view to dishonest gain for himself or another, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200.

BACKGROUND

3.  The appellant, a registered medical doctor, was employed at the Queen Elizabeth Hospital from 1989. From April 1995, he had been employed as a senior medical officer in Team “C” in the Department of Clinical Oncology at that hospital. That was one of four such Teams, each Team being led by a consultant. On 2 January 2007, the appellant tendered his resignation from the post. His terminal leave commenced on 3 March 2007. On the same date the appellant commenced private practice. There was no dispute that prior to ceasing to work for the Hospital Authority the appellant had obtained the names and addresses of patients treated by Team “C” from records of the Hospital Authority, which information he had used to mail a letter to about 2,000 of those patients informing them of the fact of his imminent commencement in private practice on 3 March 2007. The letter read :

“Hello Everyone, I am CHAN Tak–ming, senior clinical oncology medical officer of Queen Elizabeth Hospital.  Time flies, and I have already worked with the Queen Elizabeth Hospital for eighteen years, responsible for clinical cases, medical case studies, supervision and training of medical officers in the department.  Dedicating my years of clinical experience accrued and giving the patients appropriate treatment to restore their good health is the aim I have been persisting with throughout these years.  In this long service of mine, what impressed me most, which is also the most valuable thing to me, is seeing the patients getting a new lease of life and maintaining a very good quality of it.

Therefore, I really hope to have a chance to create an environment more suitable for patients, which, on the one hand, would make it possible for me to make full devotion of my time and to adequately serve each patient, and, on the other hand to utilise my professional expertise to answer patients’ questions, acquainting them with their conditions and freeing them from worries, and to provide direct and effective diagnosis, with the latest medications and advanced medical technology, improving the overall effectiveness of treatment, providing to the patients integrated service of good quality, which is well–suited to medical and financial conditions.

To realise this idea, I have decided to start a private practice beginning from 3^rd March this year at rooms 1303–05, 13/F., Oterprise Square, number 26 Nathan Road. Tsim Sha Tsui, Kowloon.  I now write to inform you and request the honour of your presence.”

THE PROSECUTION CASE

4.  On his/her initial visit to the Clinical Oncology Department a patient filled out a form containing personal details, including their name, identity card number, date of birth, address, telephone number, sex and the medical Team of which they were a patient. The clerk entered that data into a loose-leaf binder, known as the “Big Book”. It was maintained and replaced on an annual basis. Also, the Hospital Authority stored similar data in a computer, which dealt with the “Outpatient Appointments System”.

5.  In a record of interview, conducted of him under caution by officers of ICAC on 15 August 2007, the appellant accepted that he had obtained the information from records maintained by the hospital in respect of patients and used it to send a letter to each of about 2000 patients treated by Team “C”.

6.  In the first place, he obtained the information himself directly from patient records. Then, he approached a clerk in the Clinical Oncology Department, Ms Sandy Lau, and at his request she photocopied pages in manuscript records, known as the “Big Book”, for the years 2004-7 containing details of the patients treated by the Clinical Oncology Department. The records contained information of the names and addresses of those patients. From that material the appellant was able to identify from the individual files of patients those who had been treated by Team “C” and, in particular, those with whom he had formed a close long-term relationship. The appellant extracted the addresses relating to that specific category of patients and addressed in hand 500 envelopes containing his letter.

7.  Ms Sandy Lau said that, when she came to realise the purpose for which the appellant required the information, she informed him that she could obtain such detail from information stored in a computer of the Hospital Authority used to print labels to be affixed to letters to be sent to patients from time to time. With the appellant’s agreement she did so and provided him with the resulting printouts. When Mr David Chan Tung Wai, Ms Lau’s supervisor, came to know of what she was doing he suggested a quicker method of printing the data. For his part, the appellant affixed the printed labels supplied to him by Ms Lau and sent out a further 1,500 letters to patients of Team “C”.

8.  Mr Wong Chi Wah, a Senior Human Resources Manager in the Hospital Authority based at Queen Elizabeth Hospital produced a document entitled “Code of Conduct” published by the Hospital Authority and dated 2005. It asserted that it was the responsibility of every member of the staff of the Hospital Authority to comply with the document. Of the issue of confidentiality, it stated :

“We have a responsibility to protect HA’s and our patients’ information, records and property from improper disclosure, misuse or damage.

We should exercise discretion and obtain prior permission before disclosing any confidential information or records obtained in official capacity to any party outside the organization.  Under no circumstances shall we use such information or records for personal gain.”

Although the “Code of Conduct” asserted that it had general application to all employees of the Health Authority, Mr Wong was unable to say whether or not it had been distributed to all such employees after it had been issued in 2005.

9.  The appellant testified that, having resigned from the Health Authority on 2 January 2007, during that month he examined records of Team C’s patients where they were located on the 5^th floor of Block R at Queen Elizabeth Hospital and removed adhesive labels bearing their names and addresses, which he attached to envelopes that he then sent to those patients. Also, he obtained similar information from labels attached to files of patients that he was asked to review from time to time in the “follow-up” process of treating patients. Thereafter, having written out their names and addresses on envelopes he mailed them to those patients. Subsequently, he asked Ms Sandy Lau to photocopy pages of records of the patients of Team C containing that information from the “Big Book” for the three years 2004-2006. She did so and presented him with the results. However, it was apparent from those records that after February 2004 that information did not contain the address of the patient. Finally, at her suggestion, she printed out from the computerised records information of the patient’s names and addresses on labels which she gave him and which he used to attach to envelopes that he then sent to those patients.

10.  The appellant said that that his purpose in sending out the letters to this body of patients treated by Team “C” was to inform them, as a doctor who had hitherto been involved in their treatment, of the fact that he was leaving the Hospital Authority and commencing private practice :

“I just wanted to let them had [sic] a choice.  If they wanted to see me, they could come to my clinic.”

Of the particular circumstances of a cancer patient, and the resulting relationship between the patient and treating doctor, he said :

“... when a person suffers from cancer, he needs special care and better communication and support.”

11.  The appellant said that he had never seen, let alone been given, a copy of the Code of Conduct issued by the Hospital Authority. He was aware that it existed but had never read its contents. By contrast, he testified that he was aware of the fact of the publication of the then current “Professional Code and Conduct”, issued for the guidance of registered medical practitioners by the Medical Council of Hong Kong. Indeed, it was an admitted fact that he was aware of the contents of the newsletter dated 12 March 2006 which updated section 5, “Communications in professional practice”, of the “Professional Code and Conduct”. He asserted, he had conducted himself in compliance with the Code. The patients to whom he had sent copies of the letter were all patients of Team “C” and fell to be regarded as his patients, even though he had not treated each of them personally :

“My patients not just include the patients solely seen by me but also including other patients which comprise group of patients seen by other doctors who-or patients seek consultation from me.  And, I also take part in radiotherapy planning and also chemotherapy planning.”

12.  The information that he had provided “his patients” complied with the provisions of the Code, in particular that in respect of“Dissemination of service information to patients”. In order to communicate with his patients in the manner permitted by the Medical Council, he was entitled to access records containing their names and addresses. He did not regard anything that he had done as in any way being dishonest.

STATEMENT OF FINDINGS AND VERDICT

13.  The magistrate determined that, whilst there was “nothing in the evidence to impugn the motives of the appellant in sending out the letter as he stated them in evidence”, nonetheless it was a “touting letter”. Having adverted in the letter to both their medical requirements and financial situation, it was “a clear invitation to recipients to leave the care of the doctors in the Clinical Oncology Department of the Queen Elizabeth Hospital and put themselves under the care of the appellant.”

14.  Of the issue of the status of the recipients of the letter, the magistrate found that, since they all fell into the category of patients who had been seen or treated by members of Team “C”, he was “prepared to accept that the recipients were ‘patients’.”

15.  No doubt, having regard to the absence of proof of dissemination of the “Code of Conduct”, published by the Hospital Authority, to the appellant the magistrate paid it no regard in his analysis of the evidence.

16.  In respect of the nature of the content of the letter, the magistrate noted the stipulations of the Medical Council’s “Professional Code and Conduct” at section 5.2.1, namely :

“… any information provided by a doctor to the public or his patient :-

(a)  shall be legal, decent, honest, truthful, factual, accurate and not exaggerated; and

(b)  shall not claim superiority or disparage other doctors or their work.”

17.  In the result, he found that the letter asserted that (paragraph 29) :

“... the care to be provided by the appellant was superior to that provided by Queen Elizabeth Hospital and was a clear invitation to the recipients to cease to be under the care of the doctors of the Clinical Oncology Department and place themselves under the care of the appellant.”

18.  Furthermore, in the context of section 5.2.4.2(d), namely that in communicating with a patient a doctor must not “abuse the patient’s trust”, he found that :

“The appellant was clearly, and by his own admission, relying upon the trust of patients and the terms of the letter were, in my judgment, couched in such terms as to appeal to the trust and loyalty of the recipients in an attempt to get them to follow him.”

19.  The magistrate stated that in examining the Medical Council’s “Professional Code and Conduct” in the detail in which he had he was mindful that infractions of the code were not matters for him. Nevertheless, he found them to “illustrate the way the appellant treated the situation and the matters that have led to the charges in this case”.

THE LAW

20.  The magistrate noted that the relevance of the Personal Data (Privacy) Ordinance, Cap. 486 to the conduct of medical practitioners was drawn to their attention by section 1.1.4 of the “Professional Code and Conduct”. In particular, he observed that Principle 3, of the six data Protection Principles set out in Schedule 1 of the Ordinance, provides that :

“Personal data shall not without the prescribed consent of the data subject, be used for any purpose other than-

(a)  the purpose for which the data were to be used at the time of the collection of the data; or

(b)  a purpose directly related to the purpose referred to in section (a).”

21.  In addressing the issue of the ingredients in law of the offence of misconduct in public office, the magistrate stated in terms that he was bound by the decision of the Court of Final Appeal in HKSAR v Shum Kwok Sher (2005) 5 HKCFAR 381, as articulated in the judgment of Sir Anthony Mason NPJ (at paragraph 84, page 409C) namely : (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.

22.  Of the issue of the nature and ambit of “culpable misconduct”, the judge adverted to a passage in the judgment of Sir Anthony Mason NPJ (paragraph 86, page 409C) :

“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 of the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.”

23.  In approaching his analysis of the evidence in the context of the ingredients of the offence alleged in Charge 1, the magistrate said :

“Mr Macrae who appeared for the appellant in the present case agreed that the appellant was the holder of a public office.  He did not take serious issue, as I apprehended the gravamen of his submissions to me, that the appellant wilfully and intentionally culpably misconducted himself.  As I understood the thrust of Mr Macrae’s case, he did take issue with the question of the seriousness of the appellant’s misconduct. He said firmly that the appellant’s conduct may be worthy of condemnation even in disciplinary proceedings but that that conduct is nowhere near serious enough to amount to the criminal offence of misconduct in public office.”

THE SERIOUSNESS OF THE CONDUCT

24.  In rejecting Mr Macrae’s submission, the magistrate found that the appellant was well aware of the status of the personal data provided by the patients and kept in the records of the Hospital Authority, in particular that they were not to be used for the personal purposes of any data user. Of that issue, he noted that initially the appellant had tried to restrict his appropriation of such data to those patients in respect of whom he thought he had a “special relationship”. However, he went on to observe :

“In the end, however because of the constraints of time, he simply appropriated the addresses of all the remaining patients of his Team whether and not he had had any personal dealings with them.”

He determined that to be :

“... a breach of trust that his employers and his patients placed in him that he would use the personal data to which he had access and with which he was entrusted for purposes connected with the care and treatment of the patients of his team.  Instead, he simply helped himself to the personal data of his patients for his own personal purposes.”

25.  The magistrate noted that the appellant had taken no advice about his proposed conduct and in doing what he did in sending letters to patients of Team C he determined that the appellant “ignored what I consider to be clear guidelines from his professional body on the advertisement of the commencement of his new practice”. No doubt, that was a reference to the magistrate’s earlier observation that section 5.2.3.3 provided that :

“Announcements of commencement of practice or altered conditions of practice (e.g. change of address, partnership etc) are permissible only in new newspapers…  Similar announcement by other media including printing, mailing ... is not permitted.”

26.  The magistrate said that in reaching the determination that he had, he took into account the appellant’s “clear criminal record” but added :

“However, the facts are not greatly in dispute in this case and the usual reasons for taking a clear record into account are not really engaged in this case.  The case has turned on whether I considered that the prosecution had proved that the conduct of the appellant was sufficiently serious to support the offence in Charge 1.”

GROUNDS OF APPEAL AGAINST CONVICTION

Grounds 1 and 2

27.  By Grounds 1 and 2, Mr Macrae SC submitted that the magistrate had not properly addressed the issue whether or not it was proved that the appellant had “wilfully and intentionally culpably misconducted himself”. He pointed out that the magistrate had accepted that “there was nothing in the evidence to impugn the motives of the appellant in sending out the letter as he stated them in evidence”. He invited the court to note that in both his record of interview and in his evidence the appellant had said that he formed a strong bond with his cancer patients and that he wanted to let them know where he had gone after he left the Hospital Authority, which information would give them a choice of where and from whom to receive treatment.

28.  Mr Macrae submitted that that the appellant’s “motive” for conducting himself as he did was highly relevant to the issue of whether his conduct was “wilful and intentional and thereby culpable”. Mr Macrae drew the court’s attention to the statement of Sir Anthony Mason in Shum Kwok Sher in respect of misconduct in public office, in areas other than non-performance of duty, namely that (paragraph 83) :

“…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.”

29.  Mr Macrae said that the magistrate was in error to have stated that at trial the matter was no “serious issue”.

“Mixed motives”

30.  Mr Macrae pointed out that in R v Llewellyn-Jones (1967) 51 Cr.App.R. 4, in dealing with the issue of the relevance of motive in the ingredients of this offence, Widgery J (as he was then) observed that if the exercise of the power was done by a person for perfectly proper motives, albeit that “he knew that by a side wind, as it were, he was going to gain some personal benefit” that would be insufficient to establish the offence. Further, Mr Macrae pointed out that, in having regard to evidence of competing motives for conduct, the Court of Appeal in England Wales in R v Speechley (2004) EWCA Crim 3067 (unreported) had observed that it would be proper to direct a jury that before the offence was made out they had to be satisfied that the defendant was “motivated to a significant degree by considerations of personal advantage”. [Emphasis added.]

31.  Furthermore, Mr Macrae submitted that the fact of the good character of the appellant was “vital to a proper evaluation of whether his conduct was wilful and intentional and thereby culpable”. In stating that, “the usual reasons for taking a clear record into account are not really engaged in this case”, the magistrate was in error.

Ground 3

32.  By Ground 3, Mr Macrae submitted that the magistrate was in error to determine that the appellant had breached the Professional Code and Conduct in the various determinations he made. He submitted that the magistrate was correct in his determination that the recipients of the letters sent by the appellant were his “patients”. In consequence, he said that the magistrate’s observations about what was permitted in the “Professional Code and Conduct” in respect of the supply of information by a doctor to the public, rather than his patients, was irrelevant. In communicating with them by way of his letter, advising them of the fact that he was setting up in private practice on a given date at a stipulated address and describing his services, the appellant was doing no more than he was entitled to do with respect to his existing patients. In that respect, there was no breach of the “Professional Code and Conduct”. Section 5.2.4.3 provided that “Doctors in private practice as well as those in public organisations are bound by the same rules”.

33.  In his written submissions, Mr Macrae had submitted that the magistrate had misconstrued the ambit of the provisions of section 5.2.4.2 of the “Professional Code and Conduct”, in respect of the issue of “abuse of the patient’s trust”: that misconduct was limited to dissemination of confidential information in respect of the patient to a third party, not communication with the patient himself. However, in the hearing he acknowledged that the provision stipulated that it applied to information about his services supplied by a doctor to his patients. Overall, it was submitted that the magistrate’s reliance on those breaches, as support of his findings that the conduct was sufficiently “serious” to render culpability criminal, was vitiated.

Data privacy issues

34.  Mr Macrae submitted that, if the “Professional Code and Conduct” permitted a doctor, including the appellant, to supply information about his services, including the fact that he was moving from practice at one place to another, it followed that he was permitted to access the patient’s medical records in order to obtain information as to their names and addresses. There was no breach of Data Principle 3 set out in Schedule 1 of the Personal Data (Privacy) Ordinance, Cap. 486.

Ground 4

35.  By Ground 4, Mr Macrae contended that there was insufficient evidence to support a determination that the appellant’s conduct was sufficiently serious to render his culpability criminal as being misconduct in a public office. In support of that contention, Mr Macrae pointed to the fact that the relevance of and the approach to determining the issue of the seriousness of the conduct articulated by Sir Anthony Mason in Shum Kwok Sher, had been approved by the Supreme court of Canada in R v Boulanger (2006) 2 SCR 49 (paragraph 52, pages 70-1) and by the Court of Appeal of England and Wales in Attorney-General’s Reference (No. 3 of 2003) [2004] 3 WLR 451 (paragraph 46, page 464 H).

36.  In Boulanger McLachlin CJ, in the judgment of the court said of the need for proof that the misconduct was serious (paragraph 62, page 74) :

“Specifically, it requires Mr Boulanger to have acted with the intention to use his public office for a purpose other than the public good, for example for a dishonest, partial, corrupt or oppressive purpose which, along with his actions, represents a serious and marked departure from the standards expected of an individual in his position.”

37.  In Attorney-General’s Reference (No. 3 of 2003), the court noted (paragraph 56, page 467 B-C) :

“... there must be a serious departure from proper standards before the criminal offences committed; and a departure not merely negligent and amounting to an affront to the standing of the public office held.  The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.  A mistake, even a serious one, will not suffice.”

The court went on to note that (paragraph 58, page 467 F-G) :

“... the conduct cannot be considered in a vacuum : the consequences likely to follow from it, viewed subjectively as in R v G [ 2004] 1 AC 1034, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer.  A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so ...  There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.”

THE SUBMISSIONS OF THE RESPONDENT

38.  The court received two sets of written submissions on behalf of the respondent, the author of the first of which was Mr Derek Lai and the second, described as “Supplementary Skeleton Arguments”, Mr Cheung Wai Sun. The latter appeared at the hearing.

Grounds 1 and 2

39.  Of his motives for sending out the letters, in his evidence the appellant stated that he wished his patients to know “where I had gone”, so that :

“… to let them had [sic] a choice.  If they wanted to see me, they could come to my clinic.”

The respondent invited the court to note that, although the magistrate said there was nothing to “impugn the motives of the appellant” in the same sentence he condemned the letter as being “a touting letter”.  This court was invited to accept as correct the determination of the magistrate that the letter invited the recipients :

“... to leave the care of the doctors in the Clinical Oncology Department of the Queen Elizabeth Hospital and to put themselves under the care of the appellant.”

and that it asserted that :

“… care to be provided by the appellant was superior to that provided by Queen Elizabeth Hospital.”

40.  The respondent submitted that, although the appellant may have had mixed motives in sending out the letter, his primary motive was that of touting.

41.  The respondent drew to the court’s attention the reformulation of the ingredients of the offence of misconduct in a public office addressed in the judgment of Sir Anthony Mason NPJ, with which judgment the other judges agreed, in Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR192. Of the ambit and nature of the misconduct, he said that it (page 211 B, paragraph 46) :

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

42.  The respondent submitted that the magistrate had found that the misconduct was deliberate and wilful and other was no reasonable excuse or justification for that conduct.

43.  Whilst the respondent accepted that the magistrate had said of the fact of the good character of the appellant that “the usual reasons for taking a clear record into account are not really engaged in this case”, those remarks were prefaced by reference to the appellant’s good character and by a statement made by the magistrate at an earlier stage in his Statement of Findings :

“I start my assessment of the evidence in this case by saying that nothing that I heard in this case suggested that the appellant is other than a competent and hard-working doctor.”

Ground 3

The data privacy issue

44.  Having adopted, with respect, obviously contradictory positions in oral argument in response to questions from the court on the issue, Mr Cheung’s final position was that the appellant was not entitled to access the records of the patients of the Hospital Authority in Team C to obtain information as to their names and addresses in order to send them the letter, which he did send. The purpose for which the patients had supplied information as to their names and addresses was to facilitate their treatment as patients of the Hospital Authority. The patients were entitled to expect that the data would be used for that purpose and no other. Principle 3 of the Data Protection Principles set out in Schedule 1 of the Personal Data (Privacy) Ordinance gave effect to that expectation. The appellant was a “data user”, and as such was required by section 4 of the Ordinance not to do an act contrary to the data protection principles. His conduct was in breach of Data Protection Principal 3. Whilst the Ordinance does not provide for a criminal offence for that breach, section 66 of the Ordinance provides an aggrieved party with a civil remedy. Also, Part IV of the Ordinance provides for a regime in which an aggrieved party can make a complaint, in consequence of which the Privacy Commissioner for Personal Data may conduct an investigation and issue an “Enforcement Order”.

45.  The respondent invited this court to accept the magistrate’s determination that the appellant had obtained data as to the names and addresses of patients to whom letters were sent by riding “roughshod over the rights of patients to have their own personal data protected in order to satisfy his own personal ends.”

46.  The respondent did not take issue with the magistrate’s finding that the appellant was entitled to treat the recipients of his letters as his “patients”. It followed that the section of the “Professional Code and Conduct” relevant to a consideration of the appellant’s conduct was section 5.2.4, which addressed the dissemination of service information “to patients”. Section 5.2.1, which addresses the “Principles and rules of good communication and information dissemination” provided that any information provided by a doctor to the public or his patient :

“(b)  shall not claim superiority over or disparage other doctors or their work.”

Section 5.2 .4, addressing the dissemination of service information to patients, provided that :

“No attempt should be made to put pressure on patients and there should be no abuse of the trust of patients in the dissemination of information.”

Section 5.2.4.2 requires that the service information a doctor may provide to his patient is information that :

“(d) does not abuse the patient’s trust or exploit his lack of knowledge; ”

47.  The respondent submitted that paragraph 2 of the appellant’s letter to his patients clearly disparaged the quality of the services provided by the Hospital Authority in comparison with the services that the appellant proposed to provide.

48.  In the result, the respondent submitted that, although the magistrate was in error to criticise the appellant for sending out a letter, rather than making an announcement in the media in, respect of the commencement of his practice, nevertheless he was entitled to find that the appellant was in breach of other provisions of the Code and to have regard to that fact in determining the culpability of the appellant’s conduct.

Ground 4

49.  Of the issue of the seriousness of the appellant’s misconduct, and the application of the relevant law stipulated in the judgment of the Court of Final Appeal in Shum Kwok Sher, and the relevance of a consideration of the “likely consequences”, to which attention was given in Attorney General’s Reference (No. 3 of 2003), therespondent drew the court’s attention to the judgment of the Court of Appeal in HKSAR v Wong Kwong Chan, Paul [2004] HKLRD 840. In the judgment of that court, delivered by Yeung JA, reference was made to observations as to the relevance of “likely consequences” in the judgment in Attorney-General’s Reference (No 3 of 2003) (paragraph 49, page 850), namely that :

“... merely indicates that, while the consequences of a misconduct may be relevant to the seriousness of the misconduct, they are merely one of the criteria-and not the sole criterion-for assessing the seriousness of the misconduct.”

50.  The respondent submitted that the magistrate was correct in his determination that the patients of Team C, who had provided personal details to the hospital for their care and treatment, “had every reason to expect that every data user would safeguard their personal data and not use them for the personal purposes of any data user”. Similarly, the magistrate was correct in his finding that : “The appellant was well aware of the status of the personal data in question ...” and his conclusion that the appellant had so conducted himself “for his own personal purposes” and because “it was the most convenient way of advancing his personal ends”.

51.  In the result, the respondent submitted that the magistrate was entitled to determine, as he had done, that the appellant’s conduct was “more than sufficiently serious to be regarded as misconduct in public office”.

A CONSIDERATION OF THE SUBMISSIONS

The nature of these proceedings

52.  These appellant proceedings are by way of rehearing. In the judgment of Bokhary PJ in the Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 proceedings of this nature were described thus (page 78, paragraph 19) :

“An appeal under s. 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.”

The judge went on to note :

“Where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed.”

53.  There is available to this court all of the exhibits produced into evidence before the magistrate, together with a transcript of the appellant’s testimony. The parties have not found a necessary to invite the court to receive a transcript of the evidence of Ms Sandy Lau Kam Ha (PW1) and Mr David Chan Chung Wai (PW2).

Motive and good character

54.  Clearly, an important ingredient of the offence of misconduct in public office was proof that the appellant had exercised a power or discretion with a view to conferring a benefit or advantage on himself and had done so with a “dishonest or corrupt motive” (see Shum Kwok Sher, paragraph 83). At issue in this case, were the motives of the appellant in obtaining for his personal use the personal particulars of patients stored on the records of the Hospital Authority of patients, namely sending about 2000 patients a letter informing them that he was setting up in private practice. Clearly, the appellant’s good character was highly relevant to the twin issues of propensity and credibility, in particular in relation to the out-of-court explanations that he had given to the police and his testimony in the trial. In light of his long public service in administering to those afflicted with serious illness, in my judgment, he was to be regarded as possessed of positive good character.

55.  With respect to the magistrate, having stated correctly that he had regard to the appellant’s “clear criminal record”, in my judgment he fell into error when he stated that, “the usual reasons for taking a clear record into account are not really engaged in this case.” (paragraph 47). As noted earlier, the magistrate had come to make that statement in the context of his analysis of what of what he understood to be the matters with which issue was taken on behalf of the appellant by Mr Macrae.

56.  In his evidence, the appellant had testified that he did not believe that in doing what he had done he had behaved dishonestly. He asserted that he acted in compliance with the “Professional Code and Conduct”. In his submissions to the magistrate, Mr Macrae repeated those assertions, albeit that he conceded that the “Court may not accept that his motives were entirely altruistic”.

57.  In these circumstances, given that these proceedings are by way of rehearing it is for this court to give the requisite weight to the fact of the appellant’s positively good character in analysing the evidence. I do so.

The data privacy issues

58.  The information provided by the respective patients on their admission as patients to the Oncology Department of Queen Elizabeth Hospital, including their names and addresses, was recorded on both hard and electronic records. Those records were the property of the Hospital Authority. The data were subject to the operation of the Personal Data (Privacy) Ordinance, 486). In particular, Principle 3 set out in Schedule 1 provides, in respect of personal data, that it shall not be used, without the prescribed consent of the data subject, for any purpose other than :

“(a)  the purpose for which the data were to be used at the time of the collection of the date; or

(b)  a purpose directly related to the purpose referred to in paragraph (a).”

59.  There is no dispute that the appellant was a “data user”, as defined in section 2 of the Personal Data (Privacy) Ordinance. By section 4 of the Personal Data (Primary) Ordinance, data users are proscribed from doing an act that contravenes the data protection principles. I am sure that the appellant knew that the data of patients contained in the various records from which he obtained the names and addresses of patients were the property of the Hospital Authority, that it had been collected and stored to facilitate the treatment of those patients by the staff of the Hospital Authority and that was the understanding of the patients themselves. The appellant was not permitted to access and use that data for personal purposes.

60.  Whilst I am not satisfied to the requisite standard that the appellant knew that he was not permitted to access and use that personal data for the personal purposes to which he deployed that data, I am sure that he was reckless as to that. In particular, I am sure that the appellant was aware that there was a risk that he was not permitted to access and use the data for the personal purposes he proposed to deploy that information and that in the circumstances known to him it was unreasonable to take that risk. Like the magistrate, I find it significant that, although the appellant had been employed by the Hospital Authority for many years at Queen Elizabeth Hospital, he took no steps whatsoever to take advice or counsel as to his proposed course of action. Furthermore, it is significant that the appellant initially restricted his use of the data to those patients with whom he asserted he could describe as enjoying a special relationship. Subsequently, that limitation was abandoned in favour of wholesale dissemination to all the patients of Team C.

61.  I endorse the finding of the magistrate that the appellant had accessed and used that data for his own personal ends. Clearly, he did so wilfully and intentionally. Whilst I accept that the appellant had mixed motives for his conduct I am sure that the substantial motive for conducting himself as he did was a desire to enhance the potential for commercial success in his prospective private practice. In the result, I am sure that he exercised his power directly and indirectly to access and then use the personal data of patients in order to confer a benefit upon himself and that in all the circumstances he did so “dishonestly or corruptly”.

The seriousness of the misconduct

62.  As noted earlier, in Shum Kwok Sher Sir Anthony Mason NPJ noted that the misconduct complained of in a person occupying public office must be “serious” misconduct before the conduct constitutes a criminal offence. As noted earlier, of that, he said (paragraph 86; page 409J-410A) :

“Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.”

Sir Anthony Mason went on to note (paragraph 87; page 410B-C) :

“... 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 the 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 the disciplinary offences overlap.”

63.  In his re-formulation of the elements of the offence of misconduct in public office,articulated in his judgment in Sin Kam Wah, Sir Anthony Mason noted of the necessity that the misconduct be serious, that it must be (page 211A, paragraph 45) :

“… serious, not trivial, having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.” [Emphasis added.]

64.  In my judgment, with respect, the articulation of the threshold test in Attorney-General’s Reference (No. 3 of 2003) is apposite, namely :

“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.  A mistake, even a serious one, will not suffice.”

65.  The magistrate was correct to state that he was not dealing with the appellant in respect of infractions of the Professional Code and Conduct (paragraph 30). Nevertheless, certain sections of that document were relevant to a consideration of the factors identified by Sir Anthony Mason as relevant to “seriousness”, namely “the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature of the departure from those responsibilities”.

66.  Of fundamental importance to the responsibilities of a doctor to his patient is that stipulated in section 5.2.4 of the Code and Conduct under the title “Dissemination of service information to patients”, namely that :

“No attempt should be made to put pressure on patients and there should be no abuse of the trust of patients in the dissemination of information.”

In the context of this case, the provisions of section 5.2.1(b) of the Code and Conduct are relevant to that stipulation, namely that in providing information to his patient a doctor :

“(b) shall not claim superiority over or disparage other doctors or their work.”

67.  In my judgment, the magistrate was correct to identify the tenor of the appellant’s letter to the patients as firstly, an assertion and secondly, an invitation (paragraph 29) :

“… that the care to be provided by the appellant was superior to that provided by Queen Elizabeth Hospital and was a clear invitation to the recipients to cease to be under the care of the doctors of the Clinical Oncology Department and place themselves under the care of the appellant.”

68.  In the first paragraph of the letter (set out in full at paragraph 3) the appellant informed the reader that he was a clinical oncology medical officer of Queen Elizabeth Hospital, in which department he had spent 18 years. Clearly, he was asserting that he spoke with the voice of experience. In the second paragraph, the appellant wrote :

“Therefore I really hope to have a chance to create an environment more suitable for patients, which, on the one hand, would make it possible for me to make full devotion of my time and to adequately serve each patient, and, on the other hand to utilise my professional expertise to answer patients questions, acquainting them with their conditions and freeing them from worries, and to provide direct and effective diagnosis with the latest medication and advanced medical technology, improving the overall effectiveness of treatment, providing to the patients integrated service of good quality, which is well-suited to medical and financial conditions.” [Emphasis added.]

69.  The third paragraph of the letter concluded with the appellant advising the reader of the opening of his private practice at a stipulated address from 3 March 2007 and culminated with a request that they attend those premises.

70.  Of course, the context in which the seriousness of the appellant’s misconduct is to be viewed is the fact that the patients to whom this letter was addressed were all cancer patients whose names and addresses he had recovered in breach of the data protection principles. Of those patients, the appellant had said in his evidence :

“When a person suffers from cancer, he needs special care and better communication and support.”

Similarly, the appellant testified of the strong bonding that occurred between doctor and some cancer patients.

Likely consequences

71.  Clearly, cancer patients in the circumstances described by the appellant himself are particularly vulnerable to pressure being applied to them. Equally clearly, the letter applied such pressure to those patients: as patients suffering from a life-threatening condition they were being informed that in his private practice the appellant offered improved overall effectiveness of treatment. Improved over what? Clearly, in context the answer was, the treatment that they were receiving at the Queen Elizabeth Hospital. But, in what respect was the appellant offering improved overall effectiveness of treatment? Was the improvement to be brought about by the use of the “latest medication”? Or, was it the use of “advanced medical technology”? Or, was it both? Also, how were patients in a position to judge whether not the assertions were true?

72.  To pose those questions, is to put into focus the obvious intention of the stipulations provided for in the Code and Conduct by section 5.2.4.2(b), namely the caveat that information supplied by a doctor to his patient must not abuse the patient’s trust or exploit his lack of knowledge.

73.  In my judgment it was obvious to the appellant, an educated and mature man, that the recipients of the letters would realise that the information as to their names and addresses had been obtained from their medical records with the Hospital Authority for the purpose of directing a letter that was in large measure commercial touting by the appellant, in breach of their rights of data protection, and that fact alone would cause disquiet and even outrage in patients. Also, in asserting that he was offering services that included more effective treatment it was obvious to the appellant that was likely to cause real anxiety and even distress amongst patients as to the quality of the treatment they had received thus far and would continue to receive for those unable to avail themselves of private medical treatment. In so conducting himself in respect of his patients, the appellant was both abusing their trust and exploiting their lack of knowledge. In a doctor, that is not “trivial” misconduct, rather it is serious misconduct.

CONCLUSION

74.  In the result, for the reasons set out above I endorse the magistrate’s finding that the appellant’s conduct was of sufficient seriousness to constitute the criminal offence of misconduct in a public office. I am sure that all of the ingredients of the offence were proved. Accordingly, notwithstanding the attractive manner in which Mr Macrae presented his arguments the appeal against conviction is dismissed. Similarly, the appellant having abandoned his appeal against sentence at the hearing itself, that appeal is dismissed as well.