Press Summary (English) Press Summary (Chinese) [2018] HKMagC 4 KCCC 788/2018 IN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO KCCC 788 OF 2018 Before : Joseph To, Magistrate Dates of Hearing : 5, 6, 7, 13, 18, 19 & 24 September 2018 Date of Reasons for Verdict : 15 October 2018 Reasons for Verdict INTRODUCTION 1. A doctor in a family is invariably treated as the doctor for the family. It is not unusual – it is almost expected, in fact – that members of the family would consult him when they fall sick. And it is normal, being a member of the family, for the doctor to provide his professional opinions, to give his recommendation on the medication required, and to advise on what bodily samples should be tested and analysed, for this is how family bonds are forged, how family ties are deepened and enlivened. 2. In this case, however, the Independent Commission Against Corruption charges to court an ex-government doctor for having gone beyond the norm, alleging that she has ordered 75 medical tests to be performed free of charge for her family members at two government laboratories for 12 years, and that the misconduct she has committed is so serious that she should be convicted of the offence of misconduct in public office.[1] 3. It is alleged in the Particulars of Offence[2], in substance, that between July 2004 and April 2016, as a public official, namely, the Medical and Health Officer of the Department of Health in charge of the San Po Kong Elderly Health Centre, the defendant has, in the course of or in relation to her public office, without reasonable excuse or justification, wilfully and intentionally, misconducted herself by – (a) making or causing members of her staff to process 75 requests for laboratory tests on clinical specimens collected from four of her family members, who were not eligible for such services; (b) falsely representing to two laboratories under the management of the Department of Health that the 75 specimens were collected from persons eligible for such services; and (c) requiring and causing the two laboratories to carry out the 75 tests and to issue reports to the defendant as the officer-in-charge of the centre. 4. If the Commission’s criminal complaint is sustained, the defendant might have (but it is unnecessary and inappropriate, indeed, for this court to decide) breached the relevant Civil Service Bureau Circular governing conflict of interest and abuse of official position.[3] But if all that she has saved for her family members over 12 years was merely $2,970,[4] if her acts have caused no more than minimal clerical work which members of her staff would not otherwise have had to do, if there was only trivial or negligible effect – if at all – on other users and the overall workload of the health centre, and if there was only trivial or negligible effect – again, if at all – on the overall workload of the two laboratories concerned, is the defendant’s misconduct so serious as would reasonably justify a criminal conviction against her? 5. There is in this prosecution an important consideration. Regardless of age, all HKID-card holders are entitled to medical services as general out-patients on payment of $45 per attendance.[5] The services include “medical attention and treatment, prescriptions…, pathology investigations, radiology and other examination.”[6] Holders of HKID cards, the defendant’s family members (except her daughter, who was entitled to similar services at a families clinic free of charge)[7] could have obtained medical services as out-patients at $45 per visit. And the out-patient services would have included the 75 tests referred to in the charge – free of charge. 6. All along, the defendant must have been known of her family members’ entitlement to such services. So, did she – a person of good character, a professional of high status, and a public official of responsibility and long-standing – have the criminal intention to commit so serious a crime as misconduct in public office? Or, did her misconduct, given its nature, frequency, and consequence, sound only in a disciplinary action,[8] had she not resigned? 7. Material relied on by the prosecution shows that there was a case in which a government officer borrowed money on multiple occasions from two immediate subordinates; rather than a bribery charge of an agent soliciting and accepting advantage, a disciplinary tribunal was convened to deal with his case.[9] In yet another case, an officer made at his workplace on-line enquiries on a company for private purposes; he was never charged with the offence of unauthorised access to computer with dishonest gains but was dealt with by way of disciplinary proceedings.[10] 8. In neither case was the officer taken to court; but the defendant here is. What justifications are there for the apparent disparity in treatment between the two cases and hers? 9. To deal with these issues, a discussion on theraison d'être and on the development at common law of the subject offence is necessary. PROSECUTION CASE Defendant and the health centre 10. The defendant began working as a Medical and Health Officer of the Department of Health in March 1994.[11] In her third posting which took effect in September 1999, she became officer-in-charge of the health centre in San Po Kong.[12] The centre caters for persons of 65 or above. They have to pay a membership fee to register themselves as eligible or non-eligible members of the centre.[13] Eligible members have to pay $45 for each medical consultation;[14] non-eligible ones are charged a higher fee for membership and medical consultation.[15] 11. For the 12 years in question, the defendant has been the only doctor at the centre,[16] the only person possessing the power to make requests for clinical specimens collected at the centre for tests to be conducted at two laboratories in government service. Conflict of interest and abuse of official position 12. The Department sends to its employees on a regular basis relevant circulars and guidelines on the required standard of integrity;[17] the prosecution relies on five of them here.[18] As a matter of common sense, nothing in the required standard of behaviour is unreasonable, unfathomable, or unimaginable; in fact, everything in them is just common sense. 13. According to the circulars and guidelines, “the essential feature of the offence [of misconduct in public office] is an abuse by the public official of the powers, discretions or duties exercisable by virtue of his official position conferred on him for the public benefit.” [19] A government officer is expected to serve the public with integrity, honesty, and impartiality.[20] He must avoid conflicts, actual or potential, between his official duties and his private interests;[21] he must not use his official position to further his private interests;[22] and he must not coerce or induce his subordinates and others to do anything to his own benefit or that of his family and friends.[23] Loyalties to family and friends are of course to be encouraged, but the officer must not, in his official position, act or be seen to be acting preferentially in favour of them.[24] Defendant’s family members and the laboratory tests 14. None of the defendant’s four family members concerned were, at the time, 65 or above; so none of them were members, eligible or non-eligible, of the centre.[25] But between July 2004 and April 2016, the defendant had, on 67 times,[26] made a total of 75 requests from the centre to the two laboratories for tests to be conducted on clinical specimens[27] belonging to her four family members (including her daughter).[28] The requests were administratively processed at the centre and the laboratories, the tests and analyses were carried out in the laboratories, and 75 laboratory reports were sent to the centre.[29] Complaint against the defendant 15. In early September 2016, a member of the centre made a complaint against the defendant, the only complaint against her during the 17 years of her service there.[30] The complaint was that she had provided consultation to, and had arranged for blood tests and health assessments for, two of her family members.[31] 16. In response to a Questionnaire given to her regarding the complaint, [32] the defendant replied in writing, the significant part of which is reproduced in the admitted facts in these proceedings.[33] In part[34] of her answer to Question 5, she said that her sister and daughter had consulted her when they felt unwell, she had arranged for the necessary laboratory tests for them out of concern for their health, it had never occurred to her that doing so at the centre was improper and she would not have done so had she known that it was improper, and she had never intended to deceive or take advantage of anyone; and she apologised for her ignorance and undertook not to do so again.[35] DEFENCE CASE 17. The defendant is a doctor of positive good character. She elects not to give evidence in her defence, and she calls no witnesses to her defence. By way of cross-examination (which has obviously been well-planned and which has been executed with exemplary professionalism) of the prosecution witnesses, Mr Cheng Huan SC puts the Commission’s case in context, factual and legal, and submits powerfully that the paramount consideration in this case is the “context.” In addition, reliance is placed on appraisal reports,[36] character references, donation records, appreciation letters, and an award for volunteer service.[37] ANALYSIS General considerations 18. The burden of proof is on the prosecution throughout to satisfy the court of the doctor’s guilt; she has no burden to prove anything, for she has the benefit of the presumption of innocence. She exercises her legal right not to testify in court; the court is not permitted to draw any adverse inferences arising from the way in which she exercises her legal right. The doctor has a clear record, and a significant amount of evidence and materials has been placed before this court in support of her positive good character. This shows that she is not disposed to committing crime, let alone so serious a crime as misconduct in public office. In addition, her positive good character enhances her credibility in what she has said out-of-court in response to allegations of misconduct, in particular, with respect to the issues of dishonesty and improper motive. 19. In this analysis, the court will deal with the following issues – (i) the common law offence of misconduct in public office, (ii) the instant case, (iii) findings of facts, and (iv) application of the law on the facts found. Prosecuted as the case has been by experienced prosecutors, many things have gone wrong in the present prosecution. They are serious matters, and they will be canvassed below. The first issue: Misconduct in public office (1) Raison d'être 20. The existence for a long time of any common law offences does not necessarily justify their existence in the first place or their continuing existence in changed times. Common law offences were mostly called into existence when cases were brought before the court in situations showing that there existed a social need or danger which, if unheeded by the court, would have resulted in serious damage to the public interests and to the overall safeguard of justice and fairness of the land. 21. In respect of misconduct in public office, what then was the social need or danger that common law judges had in mind, and why was that social need or danger so important, so pressing, and so grave that the conduct concerned must be criminalised? And why should public officers be prosecuted in situations where private employees would just be dismissed? 22. As part of the terms of their employment with the government, civil servants are subject to the Civil Service Rules, and departmental guidelines and circulars. In discharge of their contractual duty of loyalty to their employer, they must comply with the relevant civil service rules and departmental guidelines. The common law offence of misconduct in public office is concerned, however, with a different duty toward a different value, namely, the public trust. The fundamental issue here is this: what is entrusted to the public officer by reason of his office as such? 23. To begin with, it must be noted that the subject offence has a special feature: it challenges the notion of equality. Equality before the law means that the law must be applied equally to everyone, but it does not mean that individual legal rights and liabilities must, no matter what, be the same for all. 24. In the private setting, an employee may be employed to perform functions that affect others, but the focus is on fulfilling contractual obligations. Unlike private employees, public officers are invariably entrusted with public powers, public duties, and public discretions, along with all necessary plants, tools, and equipment, over which they are entrusted with custody and control – all to be used for public purpose. In short, public officers hold these powers, etc., on public trust, in the sense that they are not to be used or exercised as if they were private, as if they were personal, as if they were their own. 25. The nature and extent of the public powers, duties, and discretions entrusted to public officers vary widely. So are the benefits sought to be conferred upon the public by the valid exercise of these powers and the valid performance of these duties. As to the ways in which public powers can be abused, one would wonder whether the sky can provide the limit. As to the consequences of such abuse, it can be – on the face of it – none. For example, a senior prison officer in the UK was sentenced, on appeal, to 27 months’ imprisonment for failing to disclose her intimate relationship with an ex-prisoner.[38] But the consequences can also be tragic deaths to some.[39] 26. Given its wide variety, misconduct in public office could not all be fitted into criminal offences known to the law, and abuse of public powers could result in serious damage to the public interests and could cause serious consequences. Common law judges saw great dangers to society in leaving serious misconduct committed by public officers to departmental or disciplinary determination. The common law intervened, therefore, and it did so in England as early as the 13th century.[40] In R v Bembridge,[41] Lord Mansfield, speaking in 1738, held: “[A] man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomever and in whatever way the officer is appointed… [W]here there is a breach of trust, fraud, or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country.” (emphasis supplied) 27. A public officer, in wilfully misconducting himself, breaches the public trust reposed in him – in failing the public purpose of that public office. When dealing with this offence, the court’s focus is not on the relationship between the public officer and the government, but on the status, power, and discretion conferred upon the officer on public trust for public purpose. In a prosecution for misconduct in public office, the standard of behaviour prescribed by the civil service rules has limited relevance, for the following reasons. 28. The offence of misconduct in public office was not promulgated to enforce the contractual relationship between the public officer and the government. The inability on the part of the prosecution to prove any breach of the civil service rules cannot by itself afford a defence to the offence. And breaches of the rules, no matter how serious and how frequent, do not mean that a prosecution for this offence is a must. Sir Anthony Mason said: “[T]here is … a borderland in which the common law offence and the disciplinary offences overlap.”[42] But ultimately the court’s duty remains: a public officer can be convicted only when the elements of this offence are established to the required criminal standard. 29. In conclusion, Lord Mansfield’s line of reasoning was as valid in England at His Lordship’s time as it is in Hong Kong today, and it provides the raison d'être of this common law offence. The essence of the offence is in a breach of public trust, committed in a matter concerning the public. (2) Development of the offence at common law 30. While HKSAR v Sin Kam Wah[43] contains the authoritative description of the elements of the offence of misconduct in public office, the founding jurisprudence on this offence lies elsewhere. In the earlier case of HKSAR v Shum Kwok Sher,[44] the Court of Final Appeal discussed this common law offence at length and provided the authoritative definition of this offence, not just for Hong Kong, but elsewhere.[45] 31. The defendant in Shum Kwok Sher’s case[46]was a Chief Property Manager in government employ. He caused lucrative government contracts to be awarded to companies in which his family members had interests. It was never part of the prosecution case that any of the contracts concerned had been poorly or improperly performed, or that the government had suffered any quantifiable loss. 32. Acknowledging that the offence was “not easy to define,” [47] Sir Anthony Mason sitting at the Court of Final Appeal provided examples to illustrate the ambit of the offence: “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. … 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 a 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.” (emphasis supplied) 33. Sir Anthony Mason captured the essence of the offence clearly and elegantly in these two paragraphs: “84. … 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… 86. … [T]he 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.” 34. How serious must the misconduct be? On this topic, the Supreme Court of Canada in R v Boulanger,[48] a case referred to in HKSAR v Tsang Yam-kuen, Donald[49] and relied on by Mr Cheng Huan SC here, said: ‘52. … The public is entitled to expect that public officials entrusted with these powers and responsibilities exercise them for the public benefits. Public officials are therefore made answerable to the public in a way that private actors may not be. This said, perfection has never been the standard for criminal culpability in this domain; “mistake” and “errors in judgment” have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required. The conduct at issue, in addition to being carried out with the requisite mens rea, must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour. … What is required is “conduct so far below acceptable standards as to amount to an abuse of public’s trust in the office holder” (Attorney General’s Reference, at para. 56). As stated in R. v. Creighton, [1993] 3 S.C.R. 3, “[t]he law does not lightly brand a person as a criminal.” 53. The question posed by Sir Anthony Mason of the Court of Final Appeal in Shum Kwok Sher provide a sound definition of the parameters of the inquiry into whether the conduct constitutes a marked departure from accepted standards. The inquiry must take place against the background of the responsibilities of the office and the importance of the public objects they serve: 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. [Emphasis added; para. 86]’ 35. Many cases of misconduct in public office have been decided in the common law world since Sir Anthony Mason’s formulation of the offence in Shum Kwok Sher’s case.[50] Several have been relied on by the parties here. Significant in terms of development of the law are the case of HKSAR v Wong Lin Kay,[51] cited by the prosecution, and the English Court of Appeal cases of R v W(M)[52]and R v Chapman and ors,[53] not cited by the parties in the present proceedings. 36. In Wong Lin Kay’s case,[54] a government driver was disqualified from driving but, without disclosing his disqualification, he continued driving for work purpose. The Court of Final Appeal found for him and rejected the prosecution’s attempt to reverse his acquittal. The unanimous ruling of the court is this: ‘22. The correct approach is therefore not to attempt somehow to decide in the abstract or in isolation whether a person is or is not a “public officer”. One must examine what, if any, powers, discretions or duties have been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involves an abuse of those powers in any of the ways identified in Shum Kwok Sher v HKSAR. If the defendant occupies a position which confers no such powers on him, he is not a candidate for prosecution for the offence, even if he is employed by a government department or by an analogous public body.’ (emphasis supplied) 37. In R v W(M),[55]a decision which has triggered mixed responses from legal scholars,[56] a police officer was supplied with a credit card for work purposes, but he used it and incurred substantial personal expenses. At trial, he alleged it was common for his colleagues to use office credit cards in the same way and that his intention was to make reimbursement when he was able to do so, thus putting in issue whether an improper motive was proved against him. 38. The English Court of Appeal held that in circumstances involving an act of theft or fraud, dishonesty must be proved as an element of the offence of misconduct in public office. The court said: ‘11. … Thus, nearly 200 years ago, in R. v Borron (1820) 3 B and Ald 432, in the context of misconduct by a magistrate, Abbott CJ said: “… the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment.” (Our emphasis) 13. We have been unable to discover any authority which suggests that the observations in Borron are no longer apposite to a case like the present… Consistently with principle, and addressing the realities, it is in any event difficult to see how the defendant can have fallen so far below the standards required of him … by his superiors for “expenses”, his conduct is properly to be stigmatised as criminal, unless he was dishonest.’ 39. In R v Chapman and ors,[57] the English Court of Appeal dealt with proper directions to be given to the jury with respect to the offence of misconduct in public offence. The court remarked: “As was observed in R. v Borron (1820) 3 B. & Ald. 432; 106 E.R. 721, to condemn anyone who had fallen into error or made a mistake, belonged only to the law of a despotic state.”[58] It is clear, therefore, that a high threshold must be met before a public officer can be convicted. 40. The court held that the jury must be specifically directed that a breach of duty or of trust is not enough.[59] They must be told that the threshold of seriousness is that the misconduct must amount to “an abuse of the public’s trust in the office holder, … to [the] level … where it is calculated to injure, that is to say has the effect of injuring, the public interest so as to call for condemnation and punishment.”[60] 41. In summary, this is the law with respect to the offence of misconduct in public office as it currently stands. Whether or for how long it should remain a common law offence is an issue for another forum, another time. The second issue: The instant case (1) Particulars of offence framed contrary to Sin Kam Wah’s case[61] 42. The prosecution charges the defendant for having “wilfully and intentionally misconducted herself.” Before adjourning the case for written submission, the court observes that the law on misconduct in public office is settled. The prosecution agrees and puts forward Sin Kam Wah’s case[62] for the court’s consideration. The court then invites submission, also, on the Shum Kwok Sher’s case.[63] 43. In closing submission, the defence contends that the prosecution frames the charge, prosecutes the defendant to court, and must therefore strictly prove its pleaded case. Reliance is placed on HKSAR v Chan Tak Ming,[64] in which the Court of Final Appeal said: “[I]n criminal cases …, pleadings are not meant merely to inform the party to whom they are delivered. They are also meant to limit the party who delivers them. … In R v Landy [65]… the English Court of Appeal said (at p.362) that particulars of offence are meant: … to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment.” 44. If the prosecution has informed itself – adequately or at all – of the rulings in Shum Kwok Sher’s case,[66] AG’s Reference (No 3 of 2003),[67] and Sin Kam Wah’s case,[68] the prosecution would never have failed to notice that the particular of offence here is plainly wrong, in that the phrase “wilfully and intentionally” should never have been pleaded. The reasons are as follows. 45. On the issue of mens rea, Sir Anthony Mason, who has in Shum Kwok Sher’s case[69] provided a first formulation of the offence, said: “84. … 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 … 85. The first qualification is that … I consider that the misconduct must be “wilful” as well as “intentional”. … “[W]ilfully” signifies knowledge or advertence to the consequence, 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 malfeasance and other forms of misconduct in public office. For this reason “wilfully and “intentionally” are not employed disjunctively …” 46. In AG’s Reference (No 3 of 2003),[70] the English Court of Appeal considered in depth Sir Anthony Mason’s formulation and then put forward its own, with emphasis on “abuse of the public’s trust in the office holder.”[71] On the issue of mens rea, the court said: ‘45. We share, with respect, counsel’s difficulty in understanding, upon the first qualification, the need for conduct to be both wilful and intentional. The need for both was considered important by Sir Anthony Mason and also by Bohkary PJ. … The judge [Sir Anthony Mason] was also underlining what he had said earlier, at para. 82, that “mere inadvertence is not enough”. Having cited the two limbs of the test in Sheppard[72] as disjunctive, it is unlikely that Sir Anthony Mason would require intent as distinct from recklessness in relation to advertence to the consequences. If there is a difference, we adopt the approach in G,[73] which in any event binds us. The decision of the Final Court of Appeal in Shum Kwok Sher[74] of course precedes that decision.’ 47. It was a result of the above comments of the English Court of Appeal that the Hong Kong formulation was modified in Sin Kam Wah’s case.[75] There Sir Anthony Mason said: “45. Since this Court delivered judgment in Shum Kwok Sher[76] …, the English Court of Appeal, in Re A-G’s Reference (No 3 of 2003)[77]… has considered the elements of the offence of misconduct in public office. In that case, the Court of Appeal took account of the decision in R v G & Another[78] … in considering the relationship between recklessness and wilful misconduct, as well as the judgments in Shum Kwok Sher[79]… In the light of the detailed consideration of the problem in Re A-G’s Reference (No 3 of 2003),[80] I would re-formulate the elements of offence … as follows. The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by willfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. 46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.” (emphasis supplied) 48. The correct particular of offence must be “wilfully misconducted herself”, rather than “wilfully and intentionally misconducted herself,” as the particular is pleaded here. A number of cases have been cited by the parties before this court. Where it can be ascertained, the cases in which the charge has been correctly pleaded in accordance with Sin Kam Wah’s case[81] are (i) Chan Tak Ming’s case[82], (ii) HKSAR v Tsang Yam-kuen, Donald[83], (iii) HKSAR v Hui Rafael Junior,[84] and (iv) HKSAR v So Ping Chi.[85] And the cases in which the particulars have been wrongly pleaded are (i) HKSAR v Lee Wing-tai,[86] and (ii) the present one. 49. The difference between the two phrases is not without significance. It has attracted serious attention and in-depth consideration of judicial authorities of high stature – in fact, of the highest stature. Sin Kam Wah’s case[87] was decided in 2005, but the present charge is still incorrectly particularised. It should be noted that the court has expressly invited submission on Shum Kwok Sher’s case,[88] but the prosecution has never sought to rectify the particular. It is not for this court to decide whether this has been a case of prosecutorial inattention, or prosecutorial incompetence, or worse, prosecutorial indifference; this issue will have to be looked at elsewhere. 50. In respect of elements of offence, this court is charged with the duty to administer the law as per Sin Kam Wah’s case.[89] The court will treat as redundant, therefore, the two words “and intentionally” as they appear in the particulars of offence. (2) Prejudicial matter introduced by the prosecution 51. When dealing with the Questionnaire,[90] the prosecution reveals to court, in examination-in-chief of Dr Lee Siu-yin,[91] that the defendant has faced, not just one, but several complaints. The court takes exception to the prosecution approach, whereupon the prosecution explains that those other complaints have been dismissed. 52. This rather begs the question why the court has to know about those complaints in the first place. While the defendant has in the end elected not to give evidence, her response to the Questionnaire (see paragraph 16 above) [92] constitutes a mixed statement, the exonerating part of which is just as admissible as evidence of facts as the incriminating part of it; and it is a matter of weight, in respect of the two parts, to be assessed and attached. 53. In view of the admitted facts, it must have been clear to the prosecution – right from the start – that the defendant is putting in issue her motive and knowledge as to the propriety and appropriateness of her acts, the resolution of which issue necessarily depends on the court’s assessment on her credibility with respect to the exculpatory portion of her response to the Questionnaire. On the issue of credibility, the defendant has, at law, the benefit of her positive good character. Revealing in court complaints against her of a nature that cannot, in prosecutorial propriety and at law, be made clear to the court undermines her good character. 54. Prosecutors are presumed to be conversant with the duty of fairness, a duty they owe not only to the community,[93] but also to court, to due administration of justice. This is basic. The court will say nothing, with regard to this instance, whether the prosecutor has discharged the duty to the required professional standard. But it is most important, it must be noted here, for all prosecutors to avoid all appearance of being unfair, or worse, of being insidious. 55. The court ignores suggestions of other complaints against the doctor and notes the prosecutor’s apology in closing speech.[94] (3) Credibility and reliability of prosecution witnesses, and Prosecution’s failure to disclose material information 56. The issue of credibility and reliability of prosecution witnesses here should have been a straightforward one: the defence does not seriously challenge the witnesses on this front. But complications have arisen due to the prosecution’s defective discovery of unused material and defective understanding and performance of its duty of disclosure. What happened at the hearing was this. 57. The defence informs the court at the commencement of the trial that it has made a request, a week before the hearing, for disclosure of unused material, and was supplied with a bundle of documents the day before trial. It transpires that the material contains handwritten notes prepared by the Commission’s investigators on meetings or telephone conversation with the prosecution witnesses for the purpose of preparing draft statements for the witnesses’ endorsement. 58. The notes are plainly discoverable as unused material. They contain the best and only records of the witnesses’ prior oral statements on material issues. The court enquires with the prosecution why those notes have not been disclosed in a timely fashion; to that enquiry, the prosecution replies that the notes are documents of persons (namely, the investigators) whom the prosecution has no intention to call as witnesses in the trial. This, as a reason for non-disclosure, is plainly wrong. The court further enquires with the prosecution on the legal test for the scope of the prosecution’s duty of disclosure. Here comes the response: “Relevance to an issue in dispute.” This, as a matter of law, is again plainly wrong. 59. The notes should have been disclosed to the defence – unasked and well before trial. The prosecution’s reason for withholding the written notes is plainly wrong in light of the authoritative pronouncement on the prosecution’s duty of disclosure in the Court of Final Appeal case of HKSAR v Lee Ming-tee.[95] The editors of Archbold Hong Kong (2018) describe the duty in these two paragraphs: ‘ The prosecution is under a positive duty in law to make disclosure to the accused all material information in their possession which is or may be relevant to an issue in the case and which may help the accused in the conduct of his defence: HKSAR v Lee Ming-tee (No. 2) (2003) 6 HK[C]FAR 336 … The duty to disclose is pro-active and continuing and does not depend on the request of the accused. In R v Hennessey (Timothy) (1978) 68 Cr App R 419, Lawson LJ observed that: “ … those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence.” … ’[96] (emphasis supplied) ‘ It is only information that is material that is required to be disclosed. … The responsibility lies on the prosecution in determining whether information is material and needs to be disclosed. … The court will interpret the test liberally and thus material information is not restricted to that in the prosecution which is itself in the form of admissible evidence but to information recorded in however form which was or might have been material to the issue at the trial and “helpful” to the defence case: HKSAR v Lee Ming-tee (No. 2) (2003) 6 HK[C]FAR 336 … Thus “material” information is not confined to admissible evidence but may include that…which may directly affect a witness’s credibility…’[97] (emphasis supplied) 60. If the trial is not affected in fairness, failure by the prosecution to make disclosure rarely affords a ground of complaint; and Mr Cheng Huan SC is not complaining. But when the material in question is relevant to the court’s assessment of the credibility and reliability of witnesses, relevant to whether immunity from prosecution should be given to the witnesses, and relevant to whether warnings against self-incrimination should be administered on the witnesses, the defective disclosure, arising as it does from a defective understanding of a fundamental duty, takes on a different dimension. The problems in this case have arisen in the following circumstances. 61. Dr Lee Siu-yin[98]gives evidence that she does not consider the defendant’s conduct serious, provided that the services to other users of the centre were not affected. Mr Cheng Huan SC shows her the handwritten note of the investigator who has spoken with her. The note says categorically: “no effect.” 62. Dr Lee no longer recalls now what exactly she has told the investigator. She is prepared, however, to adopt the note as part of her evidence, subject to the proviso that services to others at the centre be unaffected. Mr Cheng Huan SC then produces to Dr Lee a draft statement, prepared by the investigator subsequent to the interview. It is at once clear that the proviso appeared for the very first time in the whole of the investigation stage only in that draft statement. Now what does this all mean? 63. The investigator’s handwritten note shows that Dr Lee has made a negative statement orally: “no effect.” But, when reduced into writing, this definite statement of hers somehow became a proposition, the validity of which depended upon services provided to others not being affected. And there is no evidence that the proviso has been an after-thought, there being no written records to that effect. 64. The issue then becomes: where has this proviso originated from? Origin of information adduced in court under oath is important to the court’s evaluation of evidence; in this case Dr Lee’s proviso has been shown to be of suspect originality. No weight can therefore be attached to the proviso. Insofar as the court is concerned, Dr Lee is and was of the view that the defendant’s misconduct has had no effect on the operation of the centre. 65. That is not the only problem. A staff nurse Madam Ku Siu-hing[99] gives evidence for the prosecution, in the course of which the defence raises the issue of self-incrimination concerning a potential offence of aiding and abetting. The prosecution assures the court that consideration has been given – on the basis of Madam Ku’s witness statement – to the issues of immunity and of self-incrimination, and that it has been the prosecution’s conclusion that no immunity would be given and no warnings on self-incrimination need be given. There are no dangers therefore that the witness might be prosecuted – in view of the prosecution’s stance. The court rules therefore that a warning against self-incrimination is not required. But complications arise when another staff nurse Madam Chan Lai-kuen[100] takes the stand. 66. As to Madam Chan, the court assumes – because the issue is not raised again – that the prosecution has likewise considered the issue of immunity and of self-incrimination. The defence cross-examines the nurse on the basis of her statement taker’s handwritten note. It transpires that she has told the investigator orally that she knew the defendant’s family members were below 65. But in the draft statement given to her for her endorsement, her knowledge in this respect has been grossly glossed over, so much so that if one were to look at her statement alone, little if any attention would have been drawn to the issue of Madam Chan’s knowledge of the age of the defendant’s family members. If the prosecution has relied on Madam Chan’s statement alone, issues of immunising her and of warning her not to incriminate herself could not possibly have been fully considered. 67. In the court’s view, Madam Chan must have known the age of the defendant’s family members. It is a matter of regret that this court has been denied the opportunity to have the issue of self-incrimination ventilated at trial. The court enquires with the prosecution when it was that the handwritten notes were first supplied to the Department of Justice as a result of the defence request for specific discovery. 68. The prosecution reveals to court at the end of its closing speech that it was two days before the hearing and, for the first time in the trial, the prosecution says it has – on top of the witnesses’ statements – considered the handwritten notes before coming to the conclusion that no immunities from prosecution need be granted to the nurses, and that neither of them need be warned about self-incrimination. 69. To conclude this part of the discussion, the court needs only to ask this question: what if the defence had never sought specific discovery of those handwritten notes? It seems most probable that important lines of cross-examination touching on credibility and reliability of prosecution witnesses would have been denied the defence; and the prosecution would have failed fundamentally to discharge its duty concerning whether the witnesses themselves should be prosecuted, whether they should be immunised instead, and whether warnings against self-incrimination should be administered. If the defence had not sought specific discovery, one wonders what would the prosecution’s failure to make disclosure of the handwritten notes – unasked – have done to due process? 70. Apart from the problems identified above, the court finds the prosecution witnesses truthful and reliable, except in regard to the costs caused by the defendant’s 75 requests for laboratory tests (see paragraphs 76 to 84 below). The third issue: Findings of facts 71. The court finds proved and established beyond all reasonable doubts the facts, acts, and circumstances contained in paragraphs 10 to 16 above. In the court’s view, the defendant’s cautioned statement does not take the matter any further. But the effects of the defendant’s misconduct have to be dealt with in detail. Effects of the defendant’s misconduct (i) Role of the staff nurses 72. The staff nurses have to cause a medical file[101] and a booklet[102] to be opened and maintained at the centre for the members, to perform medical assessments on the members, and to collect clinical specimens from the members. There is no evidence before the court that any of the nurses have done these tasks for the defendant’s family members.[103] 73. In the 67 offending occasions, the nurses received from the defendant labelled clinical specimens belonging to her family members, put the specimens (together with the request forms) inside sealed packets for delivery,[104] made entries in the daily registers stipulating that the specimens were sent to the laboratories “care of” the defendant,[105] and, when the reports were received at the centre, had them handed over to her.[106] In addition, upon receipt of the reports, a clerical officer of the centre would chop them with the receipt stamp.[107] 74. In support of the charge, the prosecution relies on the above menial tasks done at the defendant’s behest by her staff, tasks that they would not otherwise have had to do.[108] But no evidence has been adduced to show that the staff members have done more than these menial tasks.[109] (ii) Workload of the centre and of the two laboratories 75. No preponderance of evidence has been presented to court to prove beyond all reasonable doubt the following. First, as a result of the 75 requests over the 12-year period, members of the centre have had to wait longer (for their first medical assessments[110] and for their sessions at the consultation room) than they would otherwise have to. Second, as a result of the 75 requests in the 12-year period, the overall workload of the centre has been noticeably affected. Third, as a result of the 75 requests in the 12-year period, the overall workload at the two laboratories – which must have conducted thousands of thousands of tests and analyses – has been noticeably affected.[111] In its written submission[112] and in argument, the prosecution has not sought to argue otherwise. (iii) Prosecution stance on the laboratory costs 76. An important – if not the most important – issue at trial concerns the costs to the two laboratories that the defendant’s acts are said to have caused. On this issue, the evidence of Dr Janice Lo[113] is this: (i) she has told the Commission’s investigator that the costs for some of the tests were gazetted in 2003 or 2004, and the gazetted costs were ascertainable via her computer at work, (ii) outdated as they may be, the gazetted costs have remained legally applicable for the gazetted tests conducted between 2004 and 2016, (iii) for non-gazetted items, there was a formula by which the costs could be quantified; the formula was updated once a year; and it was last updated in 2017, (iv) the investigator asked her for a “more recent” figure, so the 2017 formula was applied for all but one of the 75 tests – in order to achieve uniformity, (v) with respect to the one test for which the 2017 formula was not used in this case, the 2015 formula was adopted instead because the test has become obsolete, and (vi) the laboratory costs, by the above calculation, totalled $24,116. 77. Gazetted and non-gazetted, there are only 75 tests with which the Commission, the parties, and the court are concerned. The costs published in the gazette of 2003 or 2004 will have failed to take account of the changes in labour costs, etc., between 2004 and 2016 and, to that extent, can be described as outdated. There are however no valid and, more importantly, legal alternatives by which the costs of gazetted tests conducted in those 12 years can be assessed. For non-gazetted items, on the other hand, it defies logic and common sense that the formulae – which have been revised annually – have not been used at all. Using the 2017 formula to calculate the laboratory costs of any of the 75 tests must be glaringly wrong. 78. Evidently, no evidence has been put forward to prove the exact costs that the two laboratories have incurred as a result of the 75 requests over the 12-year period. But the prosecution in its written submission maintains: “[T]he Defendant’s misconduct was serious: … [Dr Janice Lo]’s evidence[114] [is] that the total costs for the 75 tests is HK$24,116.”[115] The prosecution does not, in argument, resile from this position. 79. The prosecution seeks to justify the figure of $24,116 on the grounds that it was the only figure with which the prosecution has been supplied, and that the 2017 formula was used to achieve uniformity.[116] The court highlights Dr Lo’s evidence to the effect that the laboratory costs have been calculated by reference to the 2017 pricing policy,[117] and indicates that it was a wrong benchmark for tests and analyses done between 2004 and 2016. 80. In the end, the prosecution informs the court that the figure has been put forward “for reference” only, emphasising that it has never been the prosecution’s intention to provide the court with an inflated figure.[118] The prosecution approach adopted in respect of this issue is as objectionable as it is unprofessional: objectionable as it lacks focus; unprofessional as it involves placing before the court material that is prejudicial to a fair trial. The bases for this conclusion are these. 81. Apart from evidence, reference materials are, as a reality of trial nowadays, frequently placed before the court; but they are produced in court in a professional manner for purposes that are clearly defined. Reference materials are tendered, invariably by agreement of the parties, when they can provide background information that is in nature neutral, neutral in the sense that it does not make the commission of the crime more or less likely, or when they can assist the court to come quickly to grips with non-controversial matters. Introduction at trial of these materials can save court time. For issues in dispute, however, the law is clear. Only relevant and admissible evidence can be adduced, and the probativeness of the evidence sought to be produced must outweigh its prejudicial value. And this is again basic, in the court’s view. 82. Pricing policy of 2017 is blatantly irrelevant to costs incurred in the 12 years between 2004 and 2016. As a matter of common sense, the 2017 formula must have taken into account the inflationary tendencies of the laboratory costs, labour and material, over the years; so, using the 2017 formula in this case must be wrong because it is plainly prejudicial. 83. Prejudicial effect arising from evidence sought to be adduced cannot be determined solely by reference to the interests of the defence but must be assessed in light of the overall fairness of the trial process. In view of the importance of the issue concerned, the calculation premised upon the 2017 formula is plainly irrelevant and grossly prejudicial, prejudicial not to the defence but to a fair trial. No weight can be attached to the figure of $24,116; and this leaves a lacuna in the prosecution case. 84. The lacuna could have been avoided. Dr Janice Lo’s evidence shows that she has had e-mail correspondence with the investigator when calculating the costs. It is clear from those e-mails, which have been served on the defence as unused material, that the use of the 2017 benchmark was plainly wrong. If the prosecution had considered the unused material or had done so with care, the problem would have been spotted easily, and Dr Janice Lo could have been invited to provide a correct figure for court purposes. The fourth issue: Application of the law to the facts found 85. The defence contests the charge putting all elements of the offence in dispute, in particular, with respect to the following three issues: (i) whether the defendant has wilfully misconducted herself by making the 75 requests, (ii) whether her conduct was without reasonable excuse or justification, and (iii) whether her conduct was “serious, not trivial” as would amount to a criminal offence. (1) Public officer acting in the course of public office 86. Was the defendant a public officer, first of all, for the purposes of the subject offence? To answer this question, “[one] must examine what, if any, powers, discretions or duties have been entrusted to the defendant in his official position for the public benefit, asking how, if at all, the misconduct alleged involves an abuse of those powers in any of the ways identified in Shum Kwok Sher v HKSAR.”[119] The defendant’s official powers, duties, and discretions entrusted to her as the medical officer cum officer-in-charge of the centre must be taken into account, against the Commission’s allegations of misconduct. 87. The evidence shows, and this is not disputed, that the health centre was established to provide medical and health services to the elderly. The defendant, as the only doctor there, represented the only source of professional services to all members of the centre; and her official duties were to provide such services there. True it is that she has merely worked for the centre, but the centre would not have existed but for her work. She was the heart and soul of the centre, in fact, the raison d'être of it, for a health centre without a doctor is not a health centre. 88. No direct evidence has been adduced at the trial to detail the defendant’s official powers, duties, and discretions. From the entirety of the evidence, the court draws the only reasonable and irresistible inference as follows: (i) the defendant was well familiar with the criteria of the members’ eligibility for services provided at the centre, (ii) she was the only person who could make clinical decisions and who had the discretion to make or not to make requests for analyses on clinical specimens collected from the members, (iii) she was aware that her clinical decisions would be implemented or carried out by the nurses at the centre, (iv) she had the supervisory role on the nurses’ work and performance in respect of clinical procedures, eg., the taking of bodily samples for testing, and of the medical services, eg., what drugs were to be supplied to the members, all as per her instructions, and (iv) she was well aware that requests for laboratory tests on clinical specimens sent from the centre would be processed by the two laboratories. 89. The Commission’s allegations are simply that the defendant has in her official capacity abused her powers and discretions by making the 75 requests “in the course of her public office”[120] for the benefit, not of any members of the centre, but of her family members. In light of all the evidence, in light of the discussion above, the court finds proved beyond all reasonable doubt that the defendant was a public officer and that the alleged misconduct has taken place in the course of her office. (2) Wilful misconduct (i) The defence argument 90. The defence raises two points here. Firstly, it is argued that the defendant has never made any misrepresentations to the laboratories. There is no evidence to prove that any of the personal particulars – including the age of the family members – entered on the request forms were false. The defence contends that making or causing the staff nurses to process the request forms at the centre amounts to no misconduct as none of the request forms were false and none of the nurses have been forced or coerced into processing them. 91. Secondly, the defence submits that in situation where the prosecution alleges, as it does here, that the misconduct concerned involved a false misrepresentation, the prosecution must prove that the defendant has acted dishonestly in accordance with R v Ghosh.[121] The defence argues that the defendant has never acted dishonestly: none of the request forms contained any false representations. (ii) Misrepresentation 92. A responsible officer of the laboratories[122] gives evidence that the laboratories have no role in verifying the details provided in the request forms, and that they would rely on the good judgments of the requesting doctors and would conduct the tests accordingly. The court finds beyond all reasonable doubt that the defendant must be aware of this long-standing practice of the laboratories. 93. False representations can be made by words, or by conduct, or both. The court finds beyond all reasonable doubt that the defendant has misrepresented to the laboratories that her family members were members of the centre and were entitled to the laboratory services as such, and that she has done so by conduct, namely, by using the request forms belonging to the centre, by causing the staff nurses to process the forms, resulting in the forms and specimens being sent to the laboratories and in the laboratories conducting the tests as per the defendant’s requests. (iii) Dishonesty 94. The court would for the time being leave aside the issue whether dishonesty must be proved as an element of offence as the defence contends. Assuming that it must be, the court finds, on the basis of the entirety of evidence, that the defendant’s acts were clearly dishonest. The reasons are as follows. 95. The staff nurses at the centre were under the defendant’s supervision in terms of clinical procedures and services and must comply with her instructions on those matters: the nurses say as much, though not in so many words in evidence. In the court’s view, if the nurses fail to carry out the defendant’s instructions on clinical procedures and on medical matters, there could be serious consequences to the members. 96. The defendant must have known that the nurses would follow her instructions on clinical and medical matters without demur, even when the clinical specimens had originated not from the members but the defendant’s family members. The court finds that it was a dishonest act on the defendant’s part to cause the nurses to deal with requests for clinical tests for the benefit of the defendant’s family members as if the tests had been requested for the benefit of members of the centre. 97. By falsely misrepresenting by conduct that her family members were entitled to the laboratory services, the defendant has, for her family members’ benefit, obtained professional analyses on their clinical specimens. The court finds beyond all reasonable doubt that the defendant’s wrongful exercises of her powers and discretions in the manner stipulated in paragraphs 92 to 96 above were dishonest according to ordinary standards of a reasonable and honest person (the first limb in Ghosh’s test). But did the defendant herself realise that her acts were dishonest by those standards (the second limb in Ghosh’s test)? 98. Here the defence seeks to rely on the defendant’s response to the Questionnaire in which she said it had never occurred to her that it was improper for her to do as she did. 99. The defendant is a well-educated professional in public service since the mid-1990s. Her work experience in the civil service in this period must have brought home to her that there are rules and regulations concerning conflict of interests and abuse of official position, that there are practices and procedures to deal with cases involving family and friends. On the issue of dishonesty in situations of misfeasance in public office, the High Court of Australia said in Northern Territory of Australia v Mengel,[123] a case that was cited with approval in AG’s Reference (No 3 of 2003) ,[124] said: “It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office … Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office …” 100. As a result, despite her clear record and positive good character, in light of all the evidence and of the factors considered in paragraph 99 above, the court is not prepared to attach any weight at all on the exculpation part of the defendant’s answer to the Questionnaire, and finds beyond all reasonable doubt that the defendant herself must have known that her acts were dishonest by the ordinary standards of a reasonable and honest person (the second limb in Ghosh’s test). (iv) Dishonesty as a separate element of offence? 101. But is it necessary to prove dishonesty on top of the intention to commit the impugned acts? R v W(M)[125]suggests that it is. Sir Anthony Mason in Shum Kwok Sher[126] has provided examples showing that in cases of malfeasance, an additional element of improper motive is generally, if not always, required (see paragraph 31 above), saying: “[A] corrupt, dishonest or malicious motive will be required where an officer acts in excess of power … absent the relevant improper motive, … the exercise of the power or discretion would not, or might not, amount to culpable misconduct.” (emphasis supplied) 102. By using the phrases “generally, if not always” and “would not, or might not,” Sir Anthony Mason has left open the issue whether an additional element of improper motive is required in malfeasance cases. In the court’s view, a corrupt or dishonest motive in malfeasance cases must be determined against the exercise or purported exercise of the public powers or discretions concerned (see Northern Territory of Australia v Mengel[127]). 103. The general proposition remains that not only must the prosecution prove that the defendant has committed an intentional act, which includes an act recklessly done,[128] but the prosecution must also prove that the defendant has acted knowing that his act was unlawful or that he has acted being reckless as to its lawfulness.[129] In the view of this court, lawfulness of the acts concerned can involve a consideration whether the very acts themselves are or are not of a corrupt or dishonest nature. On this issue, given the long history of the offence, some old wisdom perhaps can help. 104. In R v Wooler,[130] an 1817 case, Lord Ellenborough CJ said: “[I]f he acted partially … it would be corrupt exercise of his functions.” In Kennedy v Bent,[131] an 1830 decision, Pedder CJ exclaimed: “I cannot conceive how it is possible for a public officer to shew partially in the exercise of his office, without being corrupt.” And in R v Jeyes,[132] an 1835 judgment, another Chief Justice Lord Denman CJ declared: “[P]artiality would be a corrupt motive.” (emphasis supplied) In the view of this court, the word “corrupt” when used to castigate certain misconduct can mean dishonest. Although these cases dealt with situations of partiality, there is no reason why other forms of malfeasance should be treated differently. (iv) Primary and secondary improper motives 105. To put the matter beyond doubt, the court is of the view that in a malfeasance case, if the prosecution is able to prove a secondary motive, eg., of corrupt or dishonest gains, the requirement of dishonesty is necessarily satisfied. But where the prosecution is unable to prove such a secondary motive, it does not necessarily mean that the dishonest requirement is not fulfilled. It depends, firstly, on the nature of the public powers in question, and secondly, on the manner of their abuse. 106. On the basis of the evidence, the court finds beyond all reasonable doubt that the defendant has had a secondary improper motive, namely, to dishonestly obtain laboratory reports of diagnostic significance for the benefit of her family members. (3) Has the defendant any reasonable excuse or justification 107. Without reasonable excuse or justification is an element of the offence of misconduct in public office.[133] The burden is upon the prosecution to prove it beyond all reasonable doubt (see HKSAR v Lam Yuk Fai[134]). 108. In most cases, reasonable excuse or justification falls within the exclusive knowledge of the defendant. As a reality of trial, if the prosecution can prove a secondary motive of corrupt or dishonest gains, there will not be any scope for argument of reasonable excuse or justification. Where the evidence produced, be it from the prosecution or the defence, tends to suggest that a reasonable excuse or justification might exist, the burden would be on the prosecution to negative it beyond all reasonable doubt. 109. The defence here repeats its submission on dishonesty and improper motive and argues that the prosecution has failed to discharge its onus of proof to establish the element of lack of reasonable excuse or justification. The court repeats its rulings under “Wilful misconduct”, in particular, the findings in paragraph 106 above, and rejects the defence submission on reasonable excuse or justification. In addition, the court finds that there is no room for arguments of “mistake” or “error of judgment”; there is no evidential basis for them. (4) “Serious, not trivial” (i) Defence submission 110. The Court of Final Appeal has, in Sin Kam Wah’s case,[135] provided the legal test for the required degree of seriousness for the purposes of this offence (see paragraph 47 above). While the law is clear, its application is not. On this issue, the defence submits – rightly – that “context” is everything. The defence relies, in particular, on the following cases: (i) Boulanger’s case,[136] (ii) Wong Lin Kay’s case,[137] and (iii) HKSAR v Ho Hung Kwan Michael.[138] (ii) The court’s consideration 111. In Boulanger’s case,[139] the defendant was Director of Public Security of the locality in question whose daughter was involved in a car accident. His subordinate prepared a report on the accident, but the defendant sought (as he was entitled to) a second, more detailed report, which absolved his daughter from blame, resulting in his saving CAN$250 insurance deductible. The Supreme Court of Canada held that neither the actus reus nor the mens rea for the offence was established: ‘50. … [I]t cannot be that every breach of the appropriate standard of conduct, no matter how minor, will engender a breach of the public’s trust. … 52. … [P]erfection has never been the standard for criminal culpability… To establish the criminal offence of breach of trust by a public officer, more is required. … 54. … [T]he public official’s conduct must represent a “marked” departure from the standards expected of an individual in the accused’s position of public trust. … 57. As with any offence, the mens rea is inferred from the circumstances. … [T]hat a public officer obtains a benefit is not conclusive of a culpable mens rea. … Conversely, the offence may be made out where no personal benefit is involved. 62. … [T]his may be enough to bring Mr. Boulanger within the ambit of disciplinary action …, the criminal offence of breach of trust by a public officer requires more. 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 positon.’ 112. In the court’s view, Boulanger’s case[140] is clearly distinguishable. The official duties of Director of Public Security were not detailed in the judgment. Instructing a subordinate to provide a traffic accident report did not appear to go anywhere near the Director’s core public powers, duties, and discretions apposite to public security. But the core duty of the defendant here was to provide medical and health services to the elderly. She abused her powers and discretions for personal purpose, which was clearly contrary to the public object pursued by the Department of Health. 113. It is unnecessary to discuss at length Wong Lin Kay’s case[141] and Ho Hung Kwan Michael[142], as they too are distinguishable on the same basis. But in the present case, has the defendant’s culpability met the requirement for the offence? On this issue, the court’s view is as follows. (iii) Misappropriation of valuable public resources as a species of misconduct in public office 114. The defendant’s misconduct has caused little or no demonstrable loss to the government. The fact that the defendant’s family members were entitled to alternative public medical services at out-patient and family clinics is just another way of saying that there has been no demonstrable loss to the government. But as is pointed out in Boulanger’s case,[143] the fact the government has suffered no loss does not necessarily mean that the offence is not made out. The defendant here exercised her professional judgment and decided for the benefit of her family members that their clinical specimens should be tested. But she has gone further and used the resources at the centre and the laboratories to conduct the tests. 115. When the defendant used the request forms belonging to the centre, misrepresenting that her family members were members of the centre, she had engaged herself in a dishonest exercise of her powers and discretions. Her actions resulted in the nurses having to do her private bidding in processing the requests at the centre. Worse, the two laboratories – which must have been staffed by professional chemists, analysts, and trained technicians – were caused to do the defendant’s private bidding in performing the tests and in compiling the 75 reports. 116. The court is of the view that this is a case of dishonest appropriation by a public officer of valuable human and technological resources belonging to the public and the government, public resources that are of obvious importance, because the laboratories reports contained technical information of diagnostic significance. 117. Misappropriation of valuable public human and technological resources, as a species of misconduct in public office, does not appear to have been considered in previous cases. As observed in paragraph 24 above, there are no limits to the ways in which public powers can be corruptly abused. In the court’s view, there is, in principle, no reason why misappropriation of valuable resources belonging to the public cannot support a charge of misconduct in public office. (iv) Prosecution’s concession misconceived 118. In closing submission, the prosecution makes a high-sounding concession: “If the defendant has engaged herself in the alleged misconduct only once, we would not be here.” When asked to make clear the basis of the concession, the prosecution becomes lost and incoherent. 119. The prosecution is unable to make clear whether it is accepted that the defendant’s misconduct is not so serious that unless it is repeated on multiple occasions, it would not have supported a conviction of this charge, or her misconduct is serious enough to ground a prosecution even if it is committed once, but the prosecution would not have authorised the prosecution on the basis of insufficiency of public interests to pursue the defendant to court. 120. In response, the defence replies sharply that if one instance of the defendant’s misconduct amounts to mere suspicion of a crime, she should never have been prosecuted at all because suspicion upon suspicion always remains suspicion. 121. The high-sounding concession of the prosecution is unsound. In the court’s view, in cases of dishonest appropriation of valuable public resources, one transgression is one too many. Provided that all elements of offence are present, a singular incident of misconduct of such misappropriation, subject to the consideration of reasonable excuse or justification, is capable of supporting a conviction of misconduct in public office. 122. Whether in any given case the prosecution would – on consideration of public interests – exercise its prosecutorial prerogative not to send the case to court is a matter for the prosecution. The court will place no weight on the prosecution’s concession. Conclusion 123. In light of the evidence, the parties’ submission, and the court’s consideration and findings above, the court finds all elements of the offence proved beyond all reasonable doubt, and that the defendant is guilty as charged. Representation: Mr. Derek Lai, Ag. SADPP, and Mr. Andrew Cheng, SPP, for the Prosecution Mr. Cheng Huan SC, leading Mr. Paul C. L. Leung, Mr. Quinson Leung and Mr. Dixon Tse, instructed by Yiu & Associates, for the Defendant [1] An offence preferred against the defendant in common law, punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap. 221. [2] Amended Charge Sheet dated 25 July 2018 [3] Para. 9 of Civil Service Bureau Circular No.2/2004 (Exh. P99) [4] Dr Lee Siu-yin (PW1) confirmed under cross-examination that there had only been 67 occasions on which the defendant’s requests were made, in some of which more clinical tests than one to be done, making a total of 75 tests. The fees that the defendant’s family members would have had to pay if they had sought out-patient treatments were therefore $45 x 67, amounting to $3,015. In argument, the prosecution concedes that the defendant’s daughter would have been entitled to free medical services at a families clinic. The total amount of fees the defendant’s family members would have had to pay is adjusted to $2,970. See also para. 2 of Mr Leung Lai-ping’s statement dated 16 July 2018 (Exh. P111). [5] Para. 2 of Mr Chan King-hong’s statement dated 1 August 2018 (Exh. P110) [6] Para. 2 of Mr Chan King-hong’s statement dated 1 August 2018 (Exh. P110) [7] Para. 2 of Mr Leung Lai-ping’s statement dated 16 July 2018 (Exh. P111), and in argument, the prosecution concedes that the defendant’s daughter would have been entitled to free medical services at a families clinic. [8] Para. 88b of the Defendant’s Closing Submissions dated 24 September 2018 [9] Case 4 under Use of Official Position on page 5 of Department of Health Standing Circular No.12/2005 (Civil Servants’ Guide to Good Practices) (Exh. P100) [10] Case 5 under Use of Official Position on page 5 of Department of Health Standing Circular No.12/2005 (Civil Servants’ Guide to Good Practices) (Exh. P100) [11] Para. 1 of the Admitted Facts (Exh. P105) [12] Paras. 2 and 3 of the Admitted Facts (Exh. P105) [13] Paras. 6 and 7 of the Admitted Facts (Exh. P105) [14] Para. 7 of the Admitted Facts (Exh. P105) [15] Para. 7 of the Admitted Facts (Exh. P105) [16] Para. 3 and 9 of the Admitted Facts (Exh. P105) [17] Para. 28 of the Civil Service Bureau Circular no. 2/2004 (Exh. P99) [18] Para. 22 of the Admitted Facts (Exh. P105), and Exhs. P99 – P103 [19] Para. 3.6 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [20] Para. 3 of Department of Health Standing Circular No. 12/2005 (Exh. P100), para. 1.1 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [21] Para. 3 of the Civil Service Bureau Circular no. 2/2004 (Exh. P99), para. 2(a) of Department of Health Standing Circular No. 12/2005 (Exh. P100), para. 5.2 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [22] Para. 9 of the Civil Service Bureau Circular no. 2/2004 (Exh. P99), para. 2(b) of Department of Health Standing Circular No. 12/2005 (Exh. P100), para. 5.5 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [23] Para. 9 of the Civil Service Bureau Circular no. 2/2004 (Exh. P99), para. 2(b) of Department of Health Standing Circular No. 12/2005 (Exh. P100), para. 5.5 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [24] Paras. 3 and 4 of the Civil Service Bureau Circular no. 2/2004 (Exh. P99), para. 2(a) of Department of Health Standing Circular No. 12/2005 (Exh. P100), para. 5.3 of Guide on Conduct and Discipline (Department of Health/April 2014) (Exh. P103) [25] Paras. 11 to 14 of the Admitted Facts (Exh. P105) [26] Dr Lee Siu-yin (PW1) confirmed under cross-examination that there had only been 67 requests, in some of which more clinical tests than one were asked for, making a total of 75 tests. [27] Namely, blood, urine, nail, and vaginal swaps [28] Para. 17 of the Admitted Facts, and Annex entitled “Summary of details of Test No.1 to 75” (Exh. P105) [29] Paras. 17 to 19 of the Admitted Facts (Exh. P105), Exhs. P1 – P75, and Exhs. P84 and P85 [30] Dr Lee Siu-yin (PW1)’s evidence under cross-examination [31] Para. 23 of the Admitted Facts (Exh. P105) [32] Exh. P108 and P108A [33] Para. 23 of the Admitted Facts (Exh. P105) [34] Dr Lee Siu-yin (PW1)’s evidence in re-examination [35] Para. 23 of the Admitted Facts (Exh. P105) [36] Exhs. D1 and D2 [37] Admitted Facts (Part III) dated 19 September 2018 (Exh. D11) [38] R v Rebecca King [2014] 1 Cr App R (S) 73 [39] R v Dytham [1979] 1 QB 722 and AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [40] R v Chapman [2015] 2 Cr App R 10, at para. 17 [41] R v Bembridge (1783) 3 Dougl 327; 99 ER 679 [42] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381, at 410C [43] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [44] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [45] See, for example, the South Australian case of R v Quach (2010) 210 A Crim R 522 [46] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [47] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381, at 404I-J [48] R v Boulanger [2006] 2 RCS 49 [49] HKSAR v Tsang Yam-kuen, Donald [2018] HKCA 425, at paras. 58 and 129 - 131 [50] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [51] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [52] R v W(M) [2010] 1 Cr App R 28 [53] R v Chapman and ors [2015] 2 Cr App R 10 [54] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [55] R v W(M) [2010] 1 Cr App R 28 [56] J R Spencer, “Police behaving badly – the abuse of misconduct in office” (2010) 69(3) Cambridge Law Journal 423; Cronin A, “Misconduct in public office: dishonesty is an element if the misconduct amounts to theft or fraud” (2010) 74 Journal of Criminal Law 290; and Davids and McMahon, “Police misconduct as a breach of public trust: the offence of misconduct in public office” 19 (vol.1) Deakin Law Review 89 [57] R v Chapman and ors [2015] 2 Cr App R 10 [58] R v Chapman and ors [2015] 2 Cr App R 10, at para. 31 [59] R v Chapman and ors [2015] 2 Cr App R 10, at para. 31 [60] R v Chapman and ors [2015] 2 Cr App R 10, at para. 32 [61] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [62] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [63] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [64] HKSAR v Chan Tak Ming (2010) 13 HKCFAR 745 [65] R v Landy [1981] 1 WLR 355, approved in R v Chan Kang To [1997] HKLRD 412, 416A-B [66] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [67] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [68] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [69] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [70] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [71] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23, point (3) of para. 61 [72] R v Sheppard (James Martin) [1981] AC 394 [73] R v G [2004] 1 Cr App R 237 [74] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [75] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [76] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [77] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [78] R v G [2004] 1 Cr App R 237 [79] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [80] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [81] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [82] HKSAR v Chan Tak Ming (2010) 13 HKCFAR 745, at para. 5 [83] HKSAR v Tsang Yam-kuen, Donald [2018] HKCA 425, at para.14 [84] HKSAR v Hui Rafael Junior (2017) 20 HKCFAR 264, at para.20 [85] HKSAR v So Ping Chi CACC186/2016 (Judgment of McWalters JA, dated 21/11/2016, at para. 5, unreported) [86] HKSAR v Lee Wing-tai ESCC1017/2010 [87] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [88] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [89] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [90] Exhs. P108 and P108A [91] Dr Lee Siu-yin (PW1)’s evidence given on 5 September 2018 [92] Para. 23 of the Admitted Facts (Exh. P105) [93] Para. 3.11 of the Statement of Prosecution Policy and Practice [94] Prosecution’s oral submission made on 24 September 2018 [95] HKSAR v Lee Ming-tee (No. 2)(2003) 6 HKCFAR 336 [96] Para. 4-125 of Archbold Hong Kong (2018) [97] Para. 4-126 of Archbold Hong Kong (2018) [98] PW1 [99] PW4 [100] PW5 [101] Exh. D4, and the evidence of Mdm Ku Siu-hing (PW4) [102] Exh. D5, and the evidence of Mdm Ku Siu-hing (PW4) [103] Evidence of Mdm Ku Siu-hing (PW4) and of Mdm Chan Lai-kuen (PW5) [104] Eg., Exhs P76 – P83, and the evidence of Mdm Ku Siu-hing (PW4) [105] Eg., Exhs P86 – P98, and the evidence of Mdm Ku Siu-hing (PW4) and of Mdm Chan Lai-kuen (PW5) [106] Evidence of Mdm Ku Siu-hing (PW4) and of Mdm Chan Lai-kuen (PW5) [107] Evidence of Mdm Chan Lai-kuen (PW5) [108] Prosecution’s oral submission made on 24 September 2018 [109] Prosecution’s oral submission made on 24 September 2018 [110] Dr Lee Siu-yin (PW1)’s evidence in cross-examination [111] Prosecution’s oral submission made on 24 September 2018 [112] Para. 19 of the Prosecution’s closing submission dated 21 September 2018 [113] Dr Janice Lo is the third prosecution witness (PW3) who gave evidence on 6 and 7 September 2018. [114] Evidence of Dr Janice Lo given on 6 and 7 September 2018 [115] Para. 19 of the Prosecution’s closing submission dated 21 September 2018 [116] Prosecution’s oral submission made on 24 September 2018 [117] Evidence of Dr Janice Lo given on 6 and 7 September 2018 [118] Prosecution’s oral submission made on 24 September 2018 [119] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [120] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [121] R v Ghosh [1982] QB 1053 [122] PW3 [123] Northern Territory of Australia v Mengel (1995) 69 ALJR 527, at p. 547 [124] AG’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 [125] R v W(M) [2010] 1 Cr App R 28 [126] HKSAR v Shum Kwok Sher (2002) 5 HKCFAR 381 [127] Northern Territory of Australia v Mengel (1995) 69 ALJR 527, at p. 547 [128] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [129] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [130] R v Wooler [1817] 106 ER 71 [131] Kennedy v Bent [1830] TASupC 9 [132] R v Jeyes [1835] 111 ER 471 [133] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [134] cf. HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281 [135] HKSAR v Sin Kam Wah and Anor (2005) 8 HKCFAR 192 [136] R v Boulanger [2006] 2 RCS 49 [137] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [138] HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525 [139] R v Boulanger [2006] 2 RCS 49 [140] R v Boulanger [2006] 2 RCS 49 [141] HKSAR v Wong Lin Kay (2012) 15 HKCFAR 185 [142] HKSAR v Ho Hung Kwan Michael (2013) 16 HKCFAR 525 [143] R v Boulanger [2006] 2 RCS 49