Background 1. An ex-government doctor was charged with the common law offence of misconduct in public office. The charge arose from the following circumstances. 2. In 1994, the defendant began working for the Department of Health as a medical officer and, in 1999, was posted to a health centre at San Po Kong; the purpose of the centre was to provide medical and health services for the aged. She was officer-in-charge and the only doctor there, the only person therefore with the power to make requests of two government laboratories for clinical tests to be conducted on bodily samples collected from members of the centre. 3. The defendant had to comply with guidelines and circulars issued by the Department with respect to the standards of behaviour expected of her in her work at the centre. In gist, she was to serve the public with integrity, honesty, and impartiality: she must avoid conflict between her official duties and her private interests, must not coerce or induce her subordinates to act to her benefit or that of her family members, and must not abuse the powers, duties, and discretions exercisable by virtue of her official position. 4. As holders of Hong Kong Identity Cards, the defendant’s daughter was entitled to free medical services at a families clinic and, on payment of a small consultation fee, the defendant’s brothers and sister could obtain medical services at an out-patient clinic. However, for the 12 years between 2004 and 2016, the defendant had, on 67 occasions, under cover of the centre’s request forms issued by her, delivered for testing by the laboratories clinical samples belonging to her family members, namely, two elder brothers, an elder sister, and her daughter, none of whom were aged. As per the defendant’s requests, the laboratories carried out the tests and sent to the centre a total of 75 reports in the period covered by the charge. Upon receipt, staff members of the centre had the reports handed over to the defendant herself. 5. In 2016, a complaint was received from a member of the centre, alleging that the defendant had provided medical services at the centre to her family members. In accordance with proper procedures, the Department issued to the defendant a Questionnaire with respect to the complaint. In reply, she apologised and admitted to the allegations but explained that she did so out of concern for the health of her family members and that she did not know it was improper to do so. 6. The Independent Commission Against Corruption took over the investigation, at the conclusion of which the Commission charged the defendant with the offence of misconduct in public officer, alleging that she had, in 12 years, (i) made or caused members of her staff at the centre to process the 75 requests, (ii) falsely represented to the laboratories that the 75 clinical specimens sent to them for analysis were collected from members of the centre, and (iii) required and caused the two laboratories to carry out the tests as per the defendant’s requests and to issue the reports to the defendant. Issues and the court’s rulings on them 7. The major issues at trial were whether the defendant acts were “wilful misconduct” in common law, whether her conduct was without reasonable excuse or justification, and whether her conduct was serious enough as would amount to a criminal offence. 8. The court finds that the defendant was the most important person at the centre. Her official duties were to provide professional services which, in a functional sense, made the centre a health centre. Her duties included the powers and discretions to decide whether clinical tests on bodily samples should be carried out for diagnostic purposes and to cause the tests to be carried out at the two government laboratories. The court finds proved beyond all reasonable doubt that the defendant was at the material time a public officer and that the misconduct had taken place in the course of her public office. Wilful misconduct 9. While none of the personal particulars entered by the defendant on the centre’s request forms were false, the court rules that the defendant had made a false representation by conduct: by the very use of the centre’s request forms, the defendant had misrepresented to the laboratories that her family members were members of the centre and were, as such, entitled to the professional services provided by the laboratories. The court attaches no weight to the defendant’s explanations in her response to the Questionnaire, and finds (i) the defendant’s acts dishonest, and (ii) that, as a well-educated professional and having worked as a civil servant for decades, she herself must have realised that her misconduct was both unlawful and dishonest. Reasonable excuse or justification 10. In light of the totality of evidence, the court finds that the defence has failed to raise, on the evidence, the issue of reasonable excuse or justification, and that the defendant’s acts were without reasonable excuse or justification. There is no room for an argument for “mistake” or “error of judgment.” Seriousness of the misconduct 11. In the court’s view, there is a special feature in the present prosecution, a feature that does not appear to have been subject to previous judicial decision: namely, misappropriation of public resources. 12. Similar to cases like HKSAR v Hui Rafael Junior and Ors (2017) 20 HKCFAR 264, HKSAR v Tsang Yam-Kuen, Donald [2018] HKCA 425, and R v Rebecca King [2014] 1 Cr App R (S) 73, the prosecution here was unable to prove that the defendant’s misconduct had resulted in any significant loss to the government. However, the defendant was entrusted with public powers and discretions the valid and proper exercise of which would lead to the employment of valuable human and technological resources, resources that belonged to the public, for the benefit of the public, but the dishonest and unlawful exercise of which amounted to misappropriation of them. 13. The human and technological resources in question were (i) processing the requests by the defendant’s staff at the centre and by the staff members at the two laboratories, (ii) conducting the clinical tests by the laboratories as per the defendant’s requests, and (iii) compiling the laboratory reports, which contained information of diagnostic significance. The resources were valuable as they yielded diagnostic material. 14. The fact that the defendant’s family members could have obtained alternative public medical services is irrelevant, as it is merely another way of saying that the government has suffered no loss. Conclusion 15. The law on misconduct of public office does not insist on perfect human behaviour, as perfection is not the standard for criminal culpability (see R v Boulanger [2006] 2 RCS 49). However, the defendant here knew what she had done was dishonest and unlawful, and her conduct had fallen so far below the standard of behaviour expected of a person in her position that criminal condemnation and punishment are called for. In light of the evidence before the court, all the elements of offence have been made out. The court finds the defendant guilty as charge.