漁護署司機黃連基脫行為失當罪

2010年12月30日 (四) oriental Daily

法庭：停牌職工揸車漁署懵然

漁農自然護理署一名男司機因酒後駕駛罪成被罰款及停牌半年，但署方竟懵然不知，如常安排身繫停牌令的他駕車接載同事，直至他另涉一宗刑事案始被揭發，即署方在他停牌了五個月後才得悉事件。他其後因此被裁定公職人員行為失當及停牌期間駕駛等罪成立，判監十五個月及停牌兩年。他昨日向高院上訴，法官指上訴人雖然停牌期間駕駛，但只是執行日常職務，有關行為是否有濫用職權及構成公職人員行為失當，要進一步探討，將案押後一月五日再審。上訴人黃連基（五十歲），於去年三月因酒後駕駛罪成，被判罰款五千元及停牌半年，但他沒有將其停牌令通知漁護署並繼續返工；而一直被蒙在鼓裏的署方，如常安排他駕車接載同事往返北潭涌郊野公園。

上訴人其後再涉及另一宗刑事案件，被法庭裁定外出時備有偷竊工具罪名成立。署方於去年六月收到偷竊工具案的文件，到八月才揭發他原來因酒後駕駛罪成被停牌，立即禁止他再駕駛。

而署方發現事件時，上訴人尚欠一個月便停牌期滿，署方於是報警。上訴人否認曾在停牌期間駕駛接載同事，但他在觀塘法院經審訊後，原審裁判官在今年七月裁定他一項公職人員行為失當及六項停牌期間駕駛罪成立，判他入獄十五個月及停牌兩年。

法官昨日審理此宗上訴時，表示本案有別於其他公職人員行為失當的案件，並舉例指前高級警司冼錦華免費召妓或其他公職人員偷拍裙底春光照，都是有濫用職權的犯罪要素；但上訴人在案中只是執行漁護署交給他的日常職務，他是否觸犯公職人員行為失當，仍有待探討。

另外，上訴人涉及的備有偷竊工具之定罪，在去年上訴後獲判得直而撤罪。

高等法院當時判決指出，上訴人於二○○八年在西貢寓所附近踏單車時，被指身上懷有兩支「士巴拿」，涉嫌偷取路牌被捕，但是，上訴人當時沒有用梯和其他輔助工具，而且他身高「唔超過普通人」，根本接觸不到有關的路牌，基於案中疑點重重，判他上訴得直。

案件編號：HCMA 633/2010

(明報) 2010年12月30日

【明報專訊】漁農自然護理署前司機因醉酒駕駛被停牌期間繼續上班執勤，駕貨車接載署方職員到北潭涌郊野公園一帶工作，今年7月被裁定6項停牌期間駕駛及1項公職人員行為失當罪，被判監15個月。司機昨提上訴，指控方無法證明工作日誌上的駕車紀錄是否真確。

公務員犯案須自行上報

50歲上訴人黃連基，1996年加入漁護署。漁護署發言人指出，黃連基於署內任職司機，現已停職。發言人指根據公務員事務局的指引，若公務員有犯罪紀錄須自行上報，署方現正內部調查黃的個案，擬定處理方式。由於案件正處於司法程序，署方不予評論。

案情指出，去年3月9日黃連基承認醉駕，判罰款5000元及停牌半年。但同年3至8月停牌期間，黃繼續上班駕車，未有通知漁護署被停牌。至6月黃因於西貢西沙路備有偷竊工具罪名而被定罪，漁護署向律政司索取相關文件時，才驚悉「日日揸車」的黃原來正值被停牌，署方即時停止其職務，警方再起訴他本案7項罪名。

涉藏偷竊工具被查 揭發違規

去年10月黃連基上訴時獲推翻出外時備有偷竊工具罪名；法官指以黃的身高，單靠一雙「士巴拿」根本難以如控方所言，偷取路牌變賣。但至今年7月，他因停牌期間駕駛及公職人員行為失當罪名，被裁判官沈小民判囚15個月。

上訴指控方舉證未達標

已服刑5個月的黃昨提出上訴，指控方舉證未達標準，如控方無法說明工作日誌內資料的準確度，且他亦不算蓄意隱瞞漁護署停牌事實，因他在審理偷竊工具案時，亦坦白交代被罰停牌。

至於公職人員行為失當罪，法官指他雖然停牌期間駕車，但其工作表現上沒有失職，沒有犯下過錯，決定押後案件，指示辯方再查閱案例陳辭，其間被告還押。案件押後至下月5日再訊。

【案件編號：HCMA633/10】

2012年4月3日 (二) Oriental Daily

法庭：漁護署司機脫行為失當罪【本報訊】終審法院昨日澄清公職人員行為失當罪之定義，並使之成為案例。漁農自然護理署一名司機，因醉駕被法庭判令停牌，他卻沒有向部門申報，繼續駕車五個月，因此被控公職人員行為失當並被判罪成。涉事司機去年上訴高院，指他不算罪名中的「公職人員」，獲高院判上訴得直撤銷定罪。律政司不服判決再向終院上訴，結果終院五名法官一致認為高院判決正確，維持該名司機脫罪判決。

本案被告黃連基（五十一歲），原被控停牌期間駕駛及公職人員行為失當罪，高院維持其停牌期間駕駛的罪名，但撤銷公職人員行為失當定罪，刑期由十五個月減至六個月。律政司上月就此判決上訴至終院，終院昨日以書面駁回。

不涉公眾利益及濫權

終院今次的判詞主要由常任法官李義撰寫，其餘四名法官一致同意。他指出在日常用語中，所有政府僱員都可被稱為「公職人員」；但在行為失當罪的定義下，只有職權涉及公眾利益的政府僱員、而且行為牽涉濫權瀆職，才能定之以行為失當罪。本案被告只負責駕車，並非行使公權。他向政府隱瞞被停牌，亦非濫權影響公眾利益。法官更舉例指，一個私人機構的司機如同樣向僱主隱瞞停牌，也不會招致行為失當罪，因此本案被告亦不應被定罪。法官因此裁定律政司的上訴失敗，更命令律政司支付被告的訟費。

案件編號：FACC 3/2011

【本報訊】終審法院昨日澄清公職人員行為失當罪之定義，並使之成為案例。漁農自然護理署一名司機，因醉駕被法庭判令停牌，他卻沒有向部門申報，繼續駕車五個月，因此被控公職人員行為失當並被判罪成。涉事司機去年上訴高院，指他不算罪名中的「公職人員」，獲高院判上訴得直撤銷定罪。律政司不服判決再向終院上訴，結果終院五名法官一致認為高院判決正確，維持該名司機脫罪判決

定義公職人員 律政司上訴終院

【明報專訊】終審法院昨按律政司申請，釐清「公職人員行為失當」控罪中的「公職人員」是否涵蓋所有公務員。案件緣於漁護署司機酒後駕駛被判停牌，卻隱瞞署方繼續開工，原審法官指其職責性質不屬公職人員，撤銷其定罪，但律政司不服，遂上訴至終院。

漁署司機隱瞞停牌 撤失當罪

資深大律師麥高義昨代表律政司，指出高院法官麥明康將「公職人員」定義為要承擔公眾信任和利益，考慮到被告黃連基（50歲）當時只是漁護署司機，職責不涉行政決定及決策權，亦沒職權指派其他同事，以影響公眾利益，故不符合公職人員定義。惟麥高義指出，這樣是變相將高職級與低職級的公務員劃分，只界定前者為公職人員，但後者並非公職人員，做法不公且造成混亂。

律政司：應涵蓋所有公務員

麥高義又指公務員對政府有「受託關係」，故罪行中公職人員一詞，應涵蓋所有公務員。他舉例指，若根據麥明康法官所指，在政府工作、負責送文件的速遞員，若將財政預算案內容外泄，便不能控告他公職人員行為失當。首席法官馬道立反駁指，若有人泄露預算案的資料，即泄露了國家機密，亦違反了作為市民的法定責任。

辯方：應以工作性質判斷

代表黃連基的資深大律師李定國反指，麥明康裁決正確，指被告作為漁護署的司機，其職責對公眾利益的影響極微，故不屬控罪中公職人員的定義；又指一個人是否屬公職人員，其工作性質才是焦點，並不在其職位高低。李指出，被告停牌期間駕駛已獲得應有刑罰。終院押後裁決。

已離職的黃連基，案發時負責駕駛貨車接載同事來往沙田至北潭涌郊野公園，2009年3月他醉駕被停牌半年，卻繼續上班，至翌年6月才被揭發，在裁判法院被裁定停牌駕駛及公職人員行為失當罪，被判囚15個月及停牌2年。黃不服向高院上訴，獲麥明康法官撤銷行為失當控罪。

【案件編號︰FACC3/11】

FACC No. 3 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 633 OF 2010)

_____________________

Between :

HONG KONG SPECIAL ADMINISTRATIVE REGION

        Appellant

- and -

       

WONG LIN KAY

        Respondent

____________________

Before :   Chief Justice Ma, Mr Justice Chan PJ,

Mr Justice Ribeiro PJ, Mr Justice Mortimer NPJ and Lord Millett NPJ

Date of Hearing:

        15 March 2012

Date of Judgment : 2 April 2012

       

       

J U D G M E N T

       

Chief Justice Ma:

1.     I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Chan PJ:

2.     I agree with the Judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

3.     This appeal concerns the scope of the common law offence of misconduct in public office.

4.     The respondent was employed as a government driver in the Agriculture, Fisheries and Conservation Department in Shatin.  His duties were to drive other employees of the Department to various places of work in the Pak Tam Chung Country Park, usually in a small truck.

5.     On 9 March 2009, he was convicted of driving a motor vehicle whilst he had a concentration of alcohol in his blood above the prescribed limit and was disqualified from driving for six months.  The offence was not committed in the course of his employment, but he did not disclose the conviction to his employer and thereafter continued with his driving duties.

A.     The proceedings below

6.     His conviction was later discovered by the Department and this led to the respondent being convicted before Mr Sham Siu-man at the Kwun Tong Magistrates’ Court  on six charges of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance  and on a single charge of misconduct in public office contrary to common law. 

7.     The misconduct offence was particularised as follows:

“WONG Lin-Kay, you are charged that between 11th day of March, 2009 and 14th day of August, 2009, in Hong Kong being a public officer namely motor driver of the Agriculture, Fisheries and Conservation Department of the Hong Kong Special Administrative Region Government, in the course of or in relation to your public office wilfully and intentionally culpably misconducted yourself by :

(a)    failing to inform the Agriculture, Fisheries and Conservation Department that you [were] disqualified from driving on 9th March 2009 for a period of 6 months,

(b)    acted in your capacity of motor driver in performing your driving duties in driving on roads motor vehicles of the Hong Kong Special Administrative Region Government.”

8.     The respondent was sentenced to 6 months’ imprisonment and disqualified from driving for two years for driving whilst disqualified.  He was sentenced concurrently to 15 months’ imprisonment for misconduct in public office. 

9.     On appeal, McMahon J  dismissed his appeal against conviction and sentence on the driving offences, but allowed his appeal against conviction on the misconduct charge.

10.   His Lordship held that on the authorities:

“...the ‘public officer’ must be a person who holds a position of trust, or of some responsibility, which requires him to, and vests him with the authority or power to, perform duties which in their performance can affect the public interest. ... [There] must be inherent in the position held some ability, by the performance of duties attached to that position, to affect the public interest.”

11.   Applying that approach to the position of the respondent, his Lordship concluded:

“...there was, in my view, insufficient evidence to establish that the appellant was, in the work he was employed to do, able to affect the public interest.  There was no suggestion on the evidence that he, in his capacity, was able to make any administrative decision or any other sort of decision which had any bearing on the public interest, or to exercise any authority to direct any other person, or to utilise his position, to influence the manner in which the Department’s work was performed, as one would expect if he were to act as a public official.  I do not think therefore that the appellant was a public official.  He was a truck driver.”

B.     The issue in this appeal

12.   On the prosecution’s application, McMahon J certified as a question of great and general importance the following:

“What is the definition of ‘public official’ for the purposes of the common law offence of misconduct in public office?”

Leave to appeal was granted by the Appeal Committee.

C.     The appellant’s case

13.   Mr Gerard McCoy SC, appearing with Mr William Tam for the appellant, submits that the Judge erred by conflating the issue of whether someone is a “public officer” for the purposes of the offence with the question of what conduct amounts to relevant “misconduct”.

14.   He argues that the question who is a “public officer” is an independent question, standing apart from the other elements of the offence.  The answer, he submits is that a “public officer” for the purposes of the offence includes, but is not restricted to, every government employee.  The concept also covers employees of analogous public bodies.

15.   This is so, not merely as a matter of language but also because of the rationale of the offence.  It is, Mr McCoy submits, an “integrity offence” and its rationale is to criminalise breaches by government employees of their duty of loyalty to their employer, the HKSAR government.  Any serious breach of such duty – which he also describes as a fiduciary duty – is (so the argument runs) a breach of the public trust placed in civil servants that they will properly discharge their duties.

16.   In the instant case, it is argued that the respondent was guilty of a serious breach of his duty of loyalty by unlawfully driving whilst disqualified and concealing the disqualification from his employer.  This was said to involve a breach of fiduciary duty in that he preferred his own interests (of continuing to be employed and paid as a government driver) over his duty of loyalty to the HKSAR government not to act unlawfully and not to act in defiance of a disqualification order.  That, Mr McCoy submits, puts the respondent squarely within the misconduct offence.

D.     The proper approach

17.   I am unable to accept that argument.  The authorities do not support the proposition that liability for misconduct in public office is established merely by proving breach of the duty of loyalty owed by a government servant qua employee to his employer.  The offence does not arise merely on the basis of some wrongdoing occurring within the confines of the employer/employee relationship even where the employer is a government or public body.  It requires misconduct by a public officer in relation to powers and duties exercisable by him for the public benefit.

18.   The proper approach is to be found in the judgment of Sir Anthony Mason NPJ in Shum Kwok Sher v HKSAR.   Although his Lordship acknowledged that no issue was raised in that case as to the meaning and scope of the expression “public office” and remarked that “Just how far it extends may perhaps be a question for the future;” the analysis of the offence in that judgment is illuminating.

19.   The essential feature of the offence is an abuse by the defendant of the powers, discretions or duties exercisable by virtue of his official position, conferred on him for the public benefit.  Thus, expressing approval of an article by Professor P D Finn, Sir Anthony Mason NPJ stated:

“... to quote the words of PD Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p 315: ‘The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.’  It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.”

20.   His Lordship stressed that such abuse could take many forms, including dereliction of duty, misuse of powers and misconduct related to the public office:

“Abuse of such powers and duties may take various forms, ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, to oppression. In all these instances the conduct complained of by the public officer takes place in or in relation to, or under colour of exercising, the office.”

21.   In laying down the requirement that the misconduct must be serious, Sir Anthony Mason NPJ noted that this requirement “is consistent with the concept of abuse of office”.  

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.  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.

23.   The centrality of abuse of the public office in the sense discussed above is reflected in Sir Anthony Mason NPJ’s encapsulation of the elements of the offence:

“In my view, the elements of the offence of misconduct in public office are:  (1) A public official;  (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4)  culpably misconducts himself.  A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification.” 

24.   In Sin Kam Wah v HKSAR, Sir Anthony Mason NPJ reformulated the offence principally to take into account comments on the mental element made in Attorney General’s Reference (No 3 of 2003).  The reformulation runs 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 wilfully 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.

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.”

25.   As is apparent from the words I have italicised, the re statement does not diminish the pivotal importance of there being an abuse of office in the sense discussed above. 

26.   To regard the essence of the offence in this way is consistent with the earlier authorities.  A few illustrations will suffice.  Thus, in R v Bembridge,  a case often cited,  Lord Mansfield described the offence as one involving a man who had accepted “an office of trust concerning the public” and who was answerable “for misbehaviour in his office”, thus focusing on the accused’s violation of the trust placed in him for the benefit of the public by abusing it or misbehaving in some way in relation to his office. 

27.   In R v Dytham,  a police constable was convicted of misconduct in public office where, in dereliction of his duty, he had deliberately refrained from intervening when a man was being kicked to death 30 yards away.  Lord Widgery CJ characterised the defendant’s inaction as involving seriously culpable misconduct “calculated to injure the public interest”, highlighting the impact of his dereliction of duty on the public interest and not merely on the employer/employee relationship.

28.   Similarly, in R v Whitaker,  a case involving a conspiracy to bribe a public officer,  Lawrence J rejected the argument that the person bribed was not a public officer stating: “A public officer is an officer who discharges any duty in the discharge of which the public are interested...”  The importance that the public, and not merely the employer of the accused, should have an interest in the way his duties are discharged is apparent. 

29.   In Attorney General’s Reference (No 3 of 2003),  Pill LJ giving the judgment of the Court, emphasised the dimension of abusing the public’s trust, summarising the elements of the offence as follows:

“The elements of the offence of misconduct in a public office are: (1) a public officer acting as such ...; (2) wilfully neglects to perform his duty and/or wilfully misconducts himself...; (3) to such a degree as to amount to an abuse of the public's trust in the office holder ...; (4) without reasonable excuse or justification....”

30.   His Lordship had earlier cited Russell on Crime,  in which the following was stated:

“...a person holding an office of important trust and of consequence to the public, under letters patent or derivatively from such authority, is liable to indictment for not faithfully discharging the office.” (Emphasis supplied)

31.   There is also authority for the proposition that abuse of office lies at the core of the closely related tort of misfeasance in public office.  Thus, as Lord Millett stated in Three Rivers District Council v Governor and Company of the Bank of England (No 3):

“... the core concept is abuse of power.  This in turn involves other concepts, such as dishonesty, bad faith and improper purpose.”

32.   That was consistent with what Best CJ stated in the earlier case of Henly v Lyme Corporation:

“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act or omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer.”

33.   And in Northern Territory of Australia v Mengel,  Brennan J put it this way:

“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 whereby loss is caused to a plaintiff.  Malice, knowledge and reckless indifference are the states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office.  If the impugned conduct then causes injury, the cause of action is complete.”

34.   Of course, in ordinary speech, every employee in the public sector might be termed a “public officer”.  However, for the purposes of determining who is potentially liable for misconduct in public office, the authorities examined above show that not every public employee is susceptible to such liability.  His job may not vest him with any relevant powers or discretions to be exercised for the benefit of the public.  The misconduct he is accused of may not involve any abuse of, or have any relevant relationship with, the official position which he occupies.

35.   Mr McCoy’s focus on the employee’s duty of loyalty and his rejection of any requirement that the misconduct should comprise an abuse of the powers bestowed on the accused in his official position for the public benefit, results in his formulation of an offence which discriminates against public employees.  Its consequence is that two men employed as drivers who both breach their duties of loyalty as employees by driving whilst disqualified and concealing the disqualification from their employers in order to remain in gainful employment receive completely different treatment in law merely because one is employed in the public, and the other in the private, sector.  On Mr McCoy’s approach, the law would criminalise only the conduct of the government employee notwithstanding that both drivers behaved in an identical manner.  That is unjustifiable.

36.   The right to equal treatment under the law therefore highlights the importance of the public dimension of the offence.  A public officer who is held liable for misconduct in public office because he has abused the powers, discretions or duties vested in him for the benefit of the public, is not in the same position as a person who, not having been endowed with such powers, is exposed to no such liability.  A public officer’s potential liability for the offence so constituted involves no discrimination.

E.     Applying the proper approach to the present case

37.   In my view, the respondent falls into the excluded category of government employees.  He did not occupy a public office entrusting him with powers and discretions to be exercised for the public benefit; nor, it follows, did his misconduct consist of any abuse of such non-existent powers.  He was, as the Judge pointed out, simply a truck driver. 

38.   In my view, the Judge’s approach was in substance correct.  He held that the offence was only applicable where the accused could exercise powers which “affect the public interest”.  While I would prefer to describe them as powers etc, exercisable by the accused for the benefit of the public, I do not think his Lordship’s approach is materially different.  He was right to examine the nature of the respondent’s position in the Department, asking whether he held a position of trust vesting him with relevant authority or powers and considering the relationship of the alleged misconduct to such authority or powers.  He quashed the conviction on the basis that the respondent did not occupy the kind of position which attracts liability for the offence and because his misconduct did not constitute an abuse of any relevant public office.

39.   I would accordingly dismiss the appeal and make an order nisi that the respondent should have the costs.  Any submissions as to costs should be made in writing, served and lodged within 14 days of the date of this judgment, in default of which the costs order should stand as an order absolute without further direction.

Mr Justice Mortimer NPJ:

40.   I agree with the judgment of Mr Justice Ribeiro PJ.

Lord Millett NPJ:

41.   I am in full agreement with the judgment of Ribeiro PJ and for the reasons he gives I too would dismiss this appeal.

42.   Misconduct in public office is a serious criminal offence, but it is easier to describe than to define. It covers a very wide range of disparate wrongdoing, and any attempt to produce a single all-embracing definition is likely to fail to include some particular instance.

43.   It is accepted before us that the offence is concerned with serious breaches of duty. But it does not simply mean misconduct in the performance of his duties by a government employee or civil servant. Contrary to the arguments presented to us, it has nothing to do with the breach of a contract of employment or with the obligation to avoid any conflict of duty and interest which every employee owes to his or her employer. It is concerned with the breach of duties owed directly to the general public, and duties owed to the government as employer must not be confused with those owed to the public at large.

44.   The offence can be committed only by a public official. It cannot be committed by an ordinary member of the general public. But it does not discriminate against government employees. The reason it does not do so is that the core concept is abuse of official power. It can therefore be committed only by persons who are invested with powers, duties, responsibilities or discretions which they are obliged to exercise or discharge for the benefit of the general public. Such persons may or may not be employed by the government; they may or may not be paid. They may be high officers of state or lowly employees; the offence may be committed as well by a police or customs officer as by a government minister. The common element is that the accused must have abused some power, duty or responsibility entrusted to or invested in him or her and exercisable in the public interest.

45.   Every such power, duty, discretion or responsibility is granted for the benefit of the public and for a public purpose. For the person having such a power, duty or responsibility to exercise it or refrain from exercising it for his or her own private purposes, whether out of malice, revenge, friendship or hostility, or for pecuniary advantage is an abuse of power and amounts to the offence of misconduct in public office.

46.   The expression “misconduct in public office” is a compound one. It is a mistake to treat it as involving two distinct questions: (i) was the accused the holder of a public office and (ii) did the conduct of which he or she stands accused consist of misconduct in the performance of that office? There is in reality only one question: did the conduct with which the accused is charged consist of an abuse of a power, duty or responsibility entrusted to him or her and exercisable for the public good? Splitting the question into two gives rise to two dangers; (i) that the question whether the accused was the holder of a public office may be directed to the status of the accused when it should be directed to his or her functions; and (ii) that it may overlook the fact that the misconduct with which the accused is charged must consist of an abuse of the powers, duties and responsibilities involved in the performance of those functions.

47.   In the present case the Respondent was guilty of serious and deliberate misconduct in the course of his employment by the government. He not only continued to drive while disqualified but concealed his disqualification from his employer. But any employee, whether in the private or public sector, may be (and I suppose many employees are) guilty of such conduct. Moreover, it does not constitute misconduct in public office even when committed by a public official who is entrusted with powers and duties exercisable in the public interest because it does not amount to an abuse of those powers and duties.

48.   In my opinion the Respondent was not capable of abusing any power, discretion or responsibility exercisable for the public good because he was not entrusted or invested with any. In the words of the Judge, which are incapable of improvement, he was just a truck driver.

Chief Justice Ma:

49.           For the above reasons, the appeal is unanimously dismissed.  The Court also makes an order nisi as to costs in terms of para 39 above.

(Geoffrey Ma)

Chief Justice    (Patrick Chan)

Permanent Judge    (RAV Ribeiro)

Permanent Judge

       

       

(Barry Mortimer)

Non-Permanent Judge    (Lord Millett)

Non-Permanent Judge

       

Mr Gerard McCoy SC, instructed by the Department of Justice and Mr William Tam DDPP (Ag.) of that Department, for the appellant

Mr John Reading SC, instructed by David Hui and Co and assigned by the Legal Aid Department, for the respondent