Hon Yeung JA (giving the Reasons for Judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案理由書：

Introduction
引言

The applicant Wong Kwong Shun was a Landscape Architect of the Housing Department.  His duties included making recommendations to the housing project team about construction materials to be used in Housing Department projects.  Between 25 January 2000 and 2 September 2001, in four Housing Department projects the applicant recommended using EPOX products supplied by Nikka Building Materials Limited (“Nikka Materials”).
申請人黃廣信是房屋署的園林建築師，其職責包括向房屋項目小組推薦房署工程需用的建築物料。2000 年1 月25 日至2001 年9 月2 日期間，申請人在四項房屋署工程中推薦使用由日華建材有限公司（“日華建材”）供應的EPOX產品。

The prosecution alleged that when the applicant made the above recommendations, he did not disclose his close personal friendship with Madam Wong Chui-seung (黃翠嫦), one of the directors of Nikka Materials.  The prosecution case was that the applicant’s act of recommending the EPOX products resulted in Nikka Materials enjoying an unfair advantage over other suppliers and also gave rise to conflict of interest on the part of the applicant.
控方指申請人在作出上述推薦時，沒有透露他和日華建材董事之一，即黃翠嫦女士的好朋友關係。控方指申請人推薦EPOX產品，令日華建材較其他供應商有不公平的優勢，亦和申請人有利益衝突。

As a result of these events, the applicant was charged with one count of misconduct in public office.  He pleaded not guilty and was tried before District Judge Patrick Li.  He was convicted after trial and was sentenced to community service for 100 hours.
事件導致申請人被控一項藉公職作出不檢行為罪。申請人否認控罪，並在區域法院李翰良席前受審。結果申請人被裁定罪名成立及被判100小時社會服務令。

The applicant applied for leave to appeal against conviction.  After hearing, we dismissed his application, for reasons to be set out below.
申請人不服定罪，提出上訴許可申請，要求獲准就定罪上訴。經聆訊後，本庭駁回其申請，以下是本庭的判案理由。

The prosecution case
控方的指控

The prosecution case was straightforward and not in dispute.  Nikka Materials was incorporated on 7 July 1999.  Its shareholders were Nikka Technology and one Smartax Limited (“Smartax”), each holding 50% of the shares.
控方的案情簡單，亦是沒有爭議的。日華建材在1999年7月7日成立，股東包括日華科技和俊迪有限公司（“俊迪”），各佔50% 股權。

Smartax was incorporated on 6 May 1999.  Madam Wong Chui-seung was a director and the controlling shareholder.  Another director was her mother Madam Law Wong Ying (羅煌英).
俊迪在1999年5月6日成立，控股董事為黃翠嫦女士，另一董事為其母親羅煌英女士。

Madam Wong was a good friend of the applicant.  Before the applicant joined the Housing Department, he and his wife Ma Siu Yee (馬紹儀) were already acquainted with Madam Wong and her husband Wong Chun Kuen (黃振權).  The four of them had frequently gatherings and travelled together from time to time.
黃女士是申請人的好友，申請人和妻子馬紹儀在申請人加入房屋署前已認識黃女士和其丈夫黃振權。他們夫婦四人經常聚會，亦曾多次一起出外旅遊。

Originally, the agent for the EPOX products was Nikka Technology, of which Mr. Lo Tik Tsan (勞狄贊) and his wife were the directors and controlling shareholders.  In 1998, on account of the EPOX products, the applicant came to know Mr. Lo Tik Tsan.  Subsequently, Mr. Lo told the applicant that he was having financial difficulties in marketing the EPOX products.
EPOX產品的原代理商是日華科技，其控股董事為勞狄贊夫婦。1998年申請人曾因EPOX產品而認識勞狄贊先生，其後勞先生告知申請人在開發EPOX產品的銷售遇到財政困難。

Madam Wong was a housewife who had never dealt in any building materials business before, but after the applicant introduced her to Mr. Lo, she and her mother immediately set up Smartax.  Smartax and Nikka Technology jointly established Nikka Materials, which then became the agent for the EPOX products.  Soon after the establishment of Nikka Materials, the applicant recommended the EPOX products in the four Housing Department projects mentioned above.
黃女士是一名家庭主婦，從來沒有經營過任何建築材料生意，但經申請人介紹她給勞先生認識後，黃女士隨即和母親成立俊迪並以俊迪名義和日華科技成立日華建材，代理EPOX產品。日華建材成立不久，申請人便在上述四項房屋署工程中推薦EPOX產品。

As an architect of the Housing Department, the applicant was bound by the provisions in the Civil Service Branch Circular regarding “conflict of interest”.  The circular expressly provides that where a conflict of interest arises from a personal relationship/friendship between a Housing Department officer and a building materials supplier in a Housing Department project, the officer should declare the conflict and/or refrain from recommending the products of that supplier.  A civil servant should also decline to provide assistance to his relatives and/or friends so that they will not enjoy an unfair advantage, and he must not acquire any interest or participate in any investment which is in conflict with his public office.
作為房屋署的建築師，申請人受制於公務員事務科就“利益衝突”有關通告內的條文。該通告列明如房署人員和房屋署工程建築物料供應商有私交/友好關係引致利益衝突，他應作出申報並/或避免推薦該供應商的產品。公務員亦應拒絕向親朋戚友提供協助，避免他們佔不公平優勢，更不能獲取與公職有利益衝突的利益或參與該等投資。

The applicant did make a declaration about his investment, disclosing that he held 50% of the shares in one Centana Contracting Limited (“Centana”).  At the same time, however, he said that he did not take part in the business operation of Centana.
申請人曾作出投資申報，表示他持有新立工程有限公司（“新立”）的50%股份，但他同時表示自己並沒有參與經營新立的業務。

On 18 December 2000, the applicant declared that Centana was involved in certain environmentally friendly products and the merchants of those products might have some connection with the contractors of the Housing Department.  However, the applicant said that this would not put him in the position of a conflict of interest because, in his official capacity, he could not possibly decide to use those products or approve such use.
2000年12月18日，申請人申報新立涉及一些環保產品而產品的商人可能涉及房署的承建商，但申請人表示事件不會引起他有利益衝突，原因是他不可能在公事上決定或批准使用該些產品。

On 25 February 2000, the applicant applied to the Housing Department for permission to invest in the development of the EPOX products, but the application was refused on the ground that the proposed investment might involve a conflict, or might give rise to a potential conflict, with his public office.
2000年2月25日，申請人向房署要求獲准投資發展EPOX產品，但申請被拒，原因是該投資和其公職可能有或會引致潛在的利益衝突。

Between 25 January 2000 and 2 September 2001 when the applicant on four occasions recommended the EPOX products, he never declared his personal friendship with Madam Wong or the conflict of interest arising from such relationship.  It was only on 3 September 2001 that the applicant, in a memo to the Housing Department declaring interest, stated that he and a “Mrs B Wong – a director of Nikko Building Materials Ltd” were good friends.  The applicant told the ICAC that Mr. Lo was short of money for developing the EPOX products and that the applicant had applied, although in vain, to the Housing Department for investing in the development of those products.  The applicant also admitted that he was a friend of Madam Wong and her husband, that he introduced Madam Wong to Mr. Lo, and that subsequently they set up Nikka Materials.
申請人在2000年1月25日至2001年9月2日期間四次推薦EPOX產品時，都沒有申報他和黃女士的私交友好關係和該關係引致的利益衝突。申請人是在2001年9月3日才在一份向房署申報利益的便箋中表示他與一名“Mrs B Wong – Nikko Building Materials Ltd (‘日華建材’)董事”有好朋友關係。申請人有向廉政公署表示因勞先生欠缺資金發展EPOX產品，而他曾向房署申請投資發展該產品，但申請遭拒。申請人亦承認和黃女士夫婦友好，而更將黃女士介紹給勞先生認識而其後他們才成立日華建材。

The prosecution took the stance that, by failing to declare his relationship with Madam Wong, the applicant was in breach of the Civil Service Branch Circular on “conflict of interest”.  The prosecution also alleged that the recommendation of the EPOX products by the applicant would give Nikka Materials an unfair advantage over other suppliers.
控方的立場是申請人沒有申報他和黃女士的關係，違反公務員事務科的有關“利益衝突”的通告。控方亦指申請人推薦EPOX產品會令日華建材比其他供應商佔有不公平的優勢。

The Housing Department officers stated clearly in their evidence that the applicant did not declare his friendship with Madam Wong when he recommended the EPOX products, and that, had the applicant made the declaration, someone else would have been assigned to replace him in respect of the relevant projects and his recommendations would have been more closely scrutinized.
房署的職員作供時都明確表示申請人在推薦EPOX產品時，沒有申報他和黃女士的友好關係；而假若申請人有作出申報，申請人會被調離有關公程由其他人替代而申請人的推薦亦會遭更小心的審議。

Applicant’s evidence
申請人的證供

The applicant argued that even though they were two to three times more expensive than other applicable products, the EPOX products should still be recommended because they were of superior quality.
申請人指EPOX產品優越，雖然其價錢較其他適用產品貴2至3倍，仍應受推薦。

The applicant said that Mr. Lo had asked him whether he was interested in investing in his company and the applicant had replied in the negative.  In early 1999 Mr. Lo asked him whether he was willing to invest in the EPOX products.  He indicated that Mr. Lo did not have to wait for his decision, but at the same time he introduced Madam Wong to Mr. Lo.  Subsequently the applicant learnt that Madam Wong’s mother was interested in investing in the EPOX products, and Mr. Lo informed the applicant that the company’s financial problems had been resolved by reason of assistance from Madam Wong.  Mr. Lo had asked the applicant whether he would like to be given some benefits from the patent, but he politely refused to take them.
申請人指勞先生曾向他查詢是否有興趣投資其公司，但申請人表示沒有興趣。1999年初勞先生問他是否願意投資EPOX產品，他向勞先生表示不必等他的決定，但他同時介紹勞先生和黃女士認識。其後他知悉黃女士的母親有興趣投資EPOX產品，勞先生亦曾告知申請人他得到黃女士的協助，已解決了公司財政問題，勞先生曾向申請人查問是否需要給他一些專利得益，但申請人婉拒。

The applicant explained that when he applied for permission to invest in the development of the EPOX products, he did not have a detailed investment plan, because he wanted to obtain permission from the Housing Department first.  He said that he had intended to donate to the Housing Department the benefits from the patent of the EPOX products.  However, he admitted that he hoped he could invest in the development of the EPOX products and at the same time continue to work in the Housing Department.
申請人指自己申請投資發展EPOX產品時，並沒有詳細的投資計劃，原因是他希望先得到房署的批准。申請人更表示打算將EPOX產品專利得益捐給房署。但申請人承認自己曾希望能一方面投資發展EPOX產品，一方面繼續留在房署工作。

The applicant asserted that when he recommended the EPOX products to the Housing Department, he neither sensed that he was giving any advantage to his good friends nor obtained any benefit for himself, and hence he did not feel that any conflict of interest was involved in this matter.
申請人指自己在推薦EPOX產品給房署時，不意會是給好朋友任何利益，而他自己亦沒有得益，故不覺事件上有利益衝突。

The applicant maintained that in recommending the EPOX products to the Housing Department, he did not deliberately give any advantage to Madam Wong. He recommended the EPOX products not because he knew that Madam Wong invested in Nikka Materials, but purely because the products were of a high quality and suitable for the projects.
申請人強調向房署推薦EPOX產品，並非刻意將優勢給予黃女士，亦非因為知道黃女士有投資日華建材。他的立場是因為EPOX產品的質素高，適合有關工程，他才推薦該產品。

The applicant said that subsequently he had misgivings over the above matter, following a talk on corruption issues given by ICAC officers who visited the Housing Department. As a result, in September 2001 he declared his relationship with Madam Wong.
申請人表示事後因廉政公署曾到過房署講解貪污問題，令他對事件有疑慮，他才在2001年9月申報他和黃女士的關係。

The applicant emphasized that he neither participated in the establishment of Nikka Materials nor invested in the EPOX products. He said he had no knowledge of Madam Wong’s investment in Nikka Materials or her directorship in that company. He said he was under the impression that Madam Wong and her mother had lent money to Mr. Lo. He also said that during the ICAC interview, he was misled by ICAC officers into saying that Madam Wong and her mother invested in Nikka Materials.
申請人強調自己沒有參與成立日華建材，亦沒有投資EPOX產品。申請人更稱不知黃女士有投資日華建材，亦不知她是董事，他表示以為是黃女士母女借錢給勞先生，而自己是受廉署人員誤導才在會面時說黃女士母女投資日華建材。

The applicant called witnesses to prove the good quality of the EPOX products. There were also witnesses who testified that the applicant was efficient at work and that his designs were of a very high standard.
申請人有傳召證人以證明EPOX產品質素佳，亦有證人指申請人工作效率高而其設計亦極有水準。

The trial judge’s findings
原審法官的裁定

Following the cases of Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 and Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192, the trial judge set out the five elements of the offence, namely: (a) a public officer, (b) in the course of or in relation to his public office, (c) wilfully misconducts himself or wrongfully and wilfully fails to perform his duty, (d) without reasonable excuse or justification, and (e) such misconduct is serious.
原審法官根據Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 和Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192等案列明有關控罪的五項要素，包括（a）公職人員，（b）在擔任公職或與公職有關的情況下，（c）故意作出不檢行為或不當地故意不履行職責，（d）沒有合理辯解或理由，及（e）有關的不檢行為是嚴重的。

The trial judge pointed out that there was no dispute as to elements (a) and (b). The judge also found that the applicant wilfully failed to declare his friendly ties with Madam Wong, even though he must have known he was under a duty to declare his relationship with a supplier for the Housing Department.
原審法官指出(a) 及 (b) 兩項要素沒有爭議，原審法官亦裁定申請人是故意不申報他和黃女士的友好關係，雖然他必然知道自己有責任申報他與房署供應商的關係。

The judge found that in 1999 the applicant learnt that Madam Wong invested in Nikka Materials, but when he recommended the EPOX products he wilfully failed to declare his relationship with Madam Wong. The judge found that such conduct constituted misconduct for which the applicant was unable to put forward any reasonable excuse or justification.
原審法官裁定申請人在1999年知悉黃女士投資日華建材，但在推薦EPOX產品時卻故意不申報和黃女士的關係。原審法官裁定上述行為構成不檢行為而申請人未能提出任何合理辯解或理由令其不檢行為合理化。

The judge rejected the applicant’s evidence, saying that he merely wanted to use such evidence to strengthen his case. The judge found that the applicant had dishonestly misconducted himself and that such misconduct was serious, and convicted the applicant accordingly.
原審法官否定申請人的證供並指他只是希望以其證供加強其辯解。原審法官裁定申請人不誠實作出不檢行為，而其不檢行為亦是嚴重的。因此原審法官裁定申請人罪名成立。

Ground of appeal
上訴理由

The only ground of appeal put forward by Mr. Wong SC, Counsel for the applicant, is that although the trial judge found that the applicant had misconducted himself, he neither made it clear that such misconduct was serious nor explained the evidential basis for that conclusion.
代表申請人王正宇資深大律師只提出一點上訴理由，王資深大律師指原審法官判定申請人犯有不檢行為，但卻沒有說明該不檢行為是嚴重的，亦沒有說明他基於什麼證據而得出該結論。

Mr. Wong SC stresses that EPOX products were undoubtedly suitable for the relevant purposes, and one of the witnesses had indicated that even if he were aware of the relationship between the applicant and Madam Wong, he would still have approved the use of the EPOX products because the project in question was only a small-scale pilot project.
王資深大律師強調EPOX產品毫無疑問是適合有關用途的物料，而亦有證人表示，即使知悉申請人和黃女士的關係，基於有關項目只是一個小型的測試，他亦會同意使用EPOX產品。

Mr. Wong SC asserts that, in recommending the EPOX products, the applicant did not depart from his job duties; on the contrary, had the applicant not recommended the EPOX products, he would have departed from his job duties because the Housing Department would have been deprived of the opportunity to use the most suitable materials.
王資深大律師力陳申請人在推薦EPOX產品時，並沒有偏離他職位上的責任，反之，如申請人不推薦EPOX產品，他才是偏離了職位上的責任，令房署工程未能採用最適用的物料。

Mr. Wong SC maintains that when the applicant recommended the EPOX products, he was properly discharging his responsibilities and was not doing anything which went against “the importance of the public objects”, and therefore his conduct did not constitute “misconduct”.
王資深大律師力稱當申請人推薦EPOX產品時，他是適當地履行其職責，不構成任何違反“公共目標的重要性”，故不屬“不檢行為”。

Mr. Wong SC points out that even if what the applicant did was “misconduct”, such “misconduct” did not bring about any serious consequences and, not being serious in nature, could not form the basis of the offence of “misconduct in public office”.
王資深大律師指即使申請人的行為屬“不檢行為”，他的“不檢行為”沒有帶出任何的嚴重後果，故該“不檢行為”性質並不嚴重，亦不足以支持“藉公職作出不檢行為罪”。

Mr. Wong SC cites one of the sentences in point (1) of the summary of holdings in AG’s Reference (No. 3 of 2003) [2004] 2 Cr App R 366 to support his argument.  The sentence reads as follows:
王資深大律師援引AG’s Reference (No.3 of 2003)[2004]2 Cr App R 366案裁決要點（一）內的一句句子支持其立場。該句子原文如下：

The misconduct complained of had to be serious misconduct, the seriousness of which might depend on the seriousness of the consequences that followed the act or omission.
“受指責的不檢行為性質必需嚴重，其嚴重之處有可能取決於有關行為或不作為的後果之嚴重性。”（非官方翻譯本）

Mr. Wong SC emphasizes that as EPOX products were new products, it was not easy to obtain similar materials as substitutes, and that Nikka Materials was the sole supplier of the EPOX products.  That being the case, the recommendation of the EPOX products by the applicant would not, it is submitted, give any unfair advantage to Nikka Materials.  For this reason, it is submitted that even if the applicant’s “conduct” was misconduct, it was not sufficiently serious to constitute the offence of misconduct in public office.
王資深大律師強調EPOX屬新產品，所以不易找到相若的替代物料，而除了日華建材外，更沒有其他供應商供應EPOX產品，因此申請人推薦EPOX產品，不會令日華建材享有任何不公平的優勢，故申請人的“行為”，即使不檢，亦不屬嚴重，故不構成藉公職作出不檢行為罪。

Discussion
討論

In Shum Kwok Sher, the Court of Final Appeal held that one of the elements of the offence of misconduct in public office is that the defendant culpably misconducts himself.  The Court of Final Appeal further explained that the misconduct must be wilful and intentional and must also be serious in nature.  The Court of Final Appeal made it clear that whether the misconduct is serious is to be determined by having regard to, apart from the seriousness of the consequences of the conduct complained of, 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 (see paragraph 86 of the judgment).
終審法院在Shum Kwok Sher案指明公職人員行為不檢罪的要素之一是被告人作出應受懲罰的不檢行為。終審法院進一步解釋不檢行為必須是故意及蓄意地作出而不檢行為的性質須屬嚴重的。終審法院表明不檢行為的性質是否嚴重除了取決於該等行為的後果之嚴重性外，亦會取決於有關職位和職位持有人的責任，他們所促進的公共目標的重要性，以及偏離該等職責的行為的性質和程度（見判案書第86段）。

As the trial judge was well aware and pointed out in his judgment, it was never the prosecution’s case that the applicant had been influenced by self interests into recommending substandard or unsuitable products to be used in the Housing Department projects.
由始至終，控方都沒有指申請人是在受到利益衝突的影響下而推薦一些不合格或不合適的產品以供房署工程使用，這點原審法官是知悉的亦在其判案書中反映。

The EPOX products were certainly suitable products which were up to par, but it did not follow that they were unique and irreplaceable.  There was evidence that the EPOX products were not only expensive but could also be replaced by other products.  Some witnesses had pointed out that had they been aware of the friendly ties between the applicant and the directors of Nikka Materials, they might have used other materials or would have transferred the applicant away from the projects in question before deciding whether the EPOX products were to be used, so as to avoid a conflict of interest.
當然，EPOX產品是合格及合適的產品，並不表示EPOX產品是獨一無二，不能替代的產品。有證據顯示EPOX產品不但價錢高，更有其他物料可替代。有證人向法庭指出假若他們知悉申請人和日華建材的董事友好，他們可能會改用其他材料，或會將申請人調離有關工程項目，才決定是否採用EPOX產品，避免利益衝突的情況出現。

In any event, the public objects referred to by the Court of Final Appeal are not confined to the question of whether a certain product recommended by a public officer in the course of his public office is up to standard and suitable.  The public objects referred to by the Court of Final Appeal are more extensive and profound.  The culpable misconduct referred to by the Court of Final Appeal includes “wilfully and intentionally” neglecting or failing to perform a duty to which a public officer is subject by virtue of his office or employment; or with an improper motive, intentionally misusing a power or discretion which a public officer has by virtue of his office or employment.  Misconduct is not restricted to a wilful violation of the rules by a public officer in the performance of his public duties, but includes any other misconduct committed in any matter relating to his public office.  In paragraph 47 of his judgment in Sin Kam Wah, Sir Anthony Mason NPJ remarked as follows:
無論如何，終審法院所指的公共目標，並非局限於個別公職人員在公職上推薦的某種產品是否合格及適用，終審法院所指的公共目標，幅度更廣，層次更深。終審法院所指的應受懲罰的不檢行為包括“故意及蓄意”地漠視或沒有履行其職位或僱用所施加的工作責任，或懷有不當動機及蓄意濫用其職位或僱主所賦予的權力或酌情權。不檢行為不局限在公職人員履行其公職時故意違規，而包括在和公職上有關的事項作出任何其他不檢行為。在上述Sin Kam Wah案的判案書第47段，終審法院非常任法官Sir Anthony Mason有以下評論：

As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters.  To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough.  Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute,
“在下級法庭提出的論點是有關行為並非是第一上訴人在履行公職時干犯的，亦和其公職無關，因此既非‘不檢’亦非嚴重。本庭認為有需要就該些事項作出解釋。構成‘藉公職作出不檢行為’罪，只要不檢行為是故意作出的及是和被告人的公職有關，便已足夠。因此，不檢行為雖然並非是在被告人履行公職時干犯，但仍然和其公職有關，原因是該些不檢行為會令該職位蒙受恥辱。”（非官方翻譯本）。

In order that Hong Kong can continue to be a corruption-free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute.  Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed.  In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage.  Any conduct of a public officer which contravenes the above principles is serious misconduct.
香港要繼續成為一個廉潔、公平、公正的社會，任何公職人員履行公務時，不但必需大公無私，屏棄任何和個人利益有衝突的行為，更要確保其行為不會導致任何合理的非議，令人生疑，導致其職位受辱。否則社會大眾對公務行政會失去信心，影響社會的穩定、和諧。公職人員履行公職時，絕對不能懷有私心，故意令自己或親朋戚友獲得任何利益，包括不向他們提供任何協助，令他們佔任何不公平的優勢。公職人員的行為，如和上述原則有抵觸都是嚴重的不檢行為。

Being an architect of the Housing Department, the applicant occupied an important post.  As he worked very efficiently and produced high quality designs, the Housing Department reposed great trust in him.  He was entitled to recommend building materials to the housing project team, and his recommendations were accepted on many occasions.  It was against this background that the applicant, without disclosing his relationship with Nikka Materials, recommended to the housing project team the EPOX products supplied by Nikka Materials to be used in four Housing Department projects.
申請人位居要職，是房屋署的建築師，加上他工作效率高，設計亦有水平，故獲房屋署的高度信任。他有權向房屋項目小組推薦建築物料，其推薦亦因此多次獲得採納。申請人是在上述背景下，隱瞞他和日華建材的關係，向房屋項目小組推薦在四項房屋署工程中使用日華建材供應的EPOX產品。

The applicant obviously had a close relationship with the EPOX products.  He was acquainted with their agent Mr. Lo and, on his invitation, he had considered investing in the development of the EPOX products.  When the applicant made such an investment, he introduced Madam Wong, who was a good friend of his family, to Mr. Lo.
申請人明顯是和EPOX產品有密切關係，他認識其代理商勞先生，更曾應其邀請，考慮過投資發展EPOX產品。當申請人投資發展EPOX產品時，他將自己家庭好友黃女士介紹給勞先生認識。

Notwithstanding that Madam Wong was merely a housewife who had never run a business in building materials or products, she and her mother set up Smartax and speedily partnered with Mr. Lo to establish Nikka Materials which, in place of Nikka Technology, became the agent, and indeed the sole agent, for the EPOX products.  But for the close friendship between Madam Wong and the applicant, Mr. Lo would not have come to know her, let alone partnered with her in the operation of Nikka Materials.
雖然黃女士只是一名家庭主婦，亦從來沒有經營過任何建築材料產品，但她卻和母親成立俊迪，並火速和勞先生合伙，成立日華建材，替代日華科技，代理EPOX產品，成為該產品的獨家代理。假若黃女士不是申請人的好友，勞先生不會認識她，更不可能和她合伙經營日華建材。

The undisputed facts showed that the applicant had very close ties with the EPOX products and their agent but, without making any application or disclosure, he recommended those products to the Housing Department in the course of his public office.  As found by the trial judge, it was evident that the applicant was intentionally hiding some dishonest conduct in the course of his public office.  Had he not been dishonest, he would certainly have disclosed his close relationship with the agent for the EPOX products, namely Nikka Materials, when he recommended those products.
不爭議的事實顯示申請人和EPOX產品及其代理商有相當密切的關係，但申請人卻在沒有作出任何申請或披露的情況下，在公務上向房署推薦EPOX產品。誠如原審法官裁定申請人明顯是在公務上蓄意隱瞞一些不誠實的行為。假若申請人不是不誠實行事，他必會在推薦EPOX產品時，同時透露他和EPOX產品的代理商即日華建材的緊密關係。

As a high-ranking civil servant, the important public objects which the applicant had to serve were not confined to utilizing his professional knowledge to recommend certain products.  It was the applicant’s duty to uphold the integrity of a civil service in which the public had confidence.  The decisions he made in the course of his public office should not have been influenced by his own interests or the interests of his relatives and friends.
作為高級公務員，申請人要促進的重要公共目標，並非只限在以其專業知識，推薦某種產品。申請人有責任維護一個廉潔及獲市民大眾信服的公共事務系統，其工事上的決定不應受其個人及親朋戚友的利益所影響。

It is clear that the applicant recommended the EPOX products in the hope that those products would be used by the Housing Department, so that their usage and competitive edge would be enhanced and the applicant’s friends would directly benefit therefrom.  But for the applicant’s recommendation, the Housing Department might not even have known about the EPOX products and, instead of agreeing to use those products, might have used other products.  It is plain as a pikestaff that the applicant’s conduct was capable of conferring an unfair advantage on Nikka Materials, which was run by his friends.
申請人推薦EPOX產品，明顯是希望該產品獲房署採用，並因此提高該產品在行內的使用率及優勢，直接導致其友好得益。假若沒有申請人的推薦，房署可能不知悉EPOX產品，更可能不會同意採用EPOX產品，而用其他物料替代。申請人的行為能導致其友好經營的日華建材獲得不公平的優勢是顯而易見的。

What the applicant did was not only misconduct in the form of a serious breach of his duties, but it also deviated from the public objects which he was required to serve.  By wilfully recommending the products which his good friends dealt in without making the requisite disclosure, the applicant had failed to perform the duties imposed on him by his office and had misused the discretion conferred upon him by his office.  With an improper motive, he had wilfully exercised the said discretion in such a way as to benefit his friends.  The applicant’s misconduct was extremely serious whether or not it would cause the Housing Department to use unsuitable products and suffer serious consequences as a result.
申請人的行為，不但不檢，遠遠違反其責任，更抵觸了他須促進的公共目標。申請人沒有履行其職位所施加的工作責任，濫用其職位所賦予的酌情權，故意在沒有作出申報下，推薦由其好友經營的產品。申請人是懷有不當動機，故意行使其職位所賦予的酌情權，以便其友好獲益的。不論申請人的不檢行為會否導致房署因採用不適當的產品而引發嚴重後果，申請人的不檢行為亦是極為嚴重的。

Mr. Wong SC submits that the trial judge neither made it clear that the applicant’s misconduct was serious nor explained the reasoning behind his conclusion.  With respect, we do not agree.
王資深大律師指原審法官沒有說明申請人犯的不檢行為是嚴重的，亦沒有解釋是基於甚麼論據得出上述的結論。本庭不同意王資深大律師的立場。

What the applicant did was misconduct, and such misconduct was serious in nature.  These were so plain and obvious that it was simply unnecessary for the trial judge to elaborate on them.  As Mr. Lee, SADPP for the respondent, has correctly pointed out, the abovementioned case of AG’s Reference (No. 3 of 2003) 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.
申請人所犯的行為屬不檢是顯而易見的，該些不檢行為的嚴重性亦是有目共睹的，原審法官根本無需再作詳細解釋。誠如代表答辯人的李運騰高級助理刑事檢控專員正確指出上述AG’s Reference (No.3 of 2003)案只是指出不檢行為的嚴重性可能和該行為的後果有關，但不檢行為的後果，只是量度該行為是否嚴重的指標之一，而非唯一的指標。

In any event, in his judgment, having set out and canvassed the background of the case and particularly the applicant’s misconduct, the trial judge came to the following conclusion (at paragraph 49):
無論如何，在其判詞，原審法官不但就案件的背景，特別是申請人的不檢行為有大篇幅的複述，更在第49段作出以下結論：-

As a Landscape Architect, the defendant had a lot of contacts with suppliers, and he was under an important duty to act fairly in dealing with matters such as selecting materials.  The defendant’s conduct, which impaired the trust reposed by the public in the relevant mechanism of the Housing Department, constituted serious misconduct.
“被告人是園境師，與供應商有很多接觸、公平處理選擇物品等事宜是重要的職務，被告人的行為，影響房屋署有關機制的公信力，是嚴重的不當行為。”

The judge’s findings are justified and correct.  We see nothing improper in the applicant’s conviction, and the application for leave to appeal against conviction is dismissed accordingly.
原審法官的裁決是有根據，亦是正確的。對申請人被裁定罪名成立，本庭不覺有任何不妥之處，因此本庭拒絕批准他就定罪上訴。

Mr. Wong Ching Y., SC and Mr. Michael Leung, instructed by Herman H.M. Hui & Co., for the Applicant.
申請人：由許享明律師事務所轉聘王正宇資深大律師及梁鴻谷大律師代表。

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員李運騰代表。