( 星 島 日 報 報 道 ) 香 港 一 直 以 擁 有 高 效 率 又 廉 潔 的 公 務 員 隊 伍 而 自 豪 ﹐ 但 近 年 個 別 公 職 人 員 涉 及 濫 權 謀 私 的 情 況 接 連 發 生 。 產 業 署 前 總 產 業 經 理 岑 國 社 就 涉 嫌 把 高 達 近 一 億 五 千 萬 的 政 府 管 理 合 約 批 予 弟 婦 胞 兄 ﹐ 因 而 被 廉 政 公 署 拘 控 。
產 業 署 前 總 產 業 經 理 岑 國 社 ﹐ 涉 嫌 於 九 四 至 九 八 年 間 以 權 謀 私 ﹐ 將 卅 五 份 總 值 高 達 一 億 五 千 萬 元 的 舊 啟 德 機 場 、 軍 事 用 地 及 短 期 的 物 業 管 理 合 約 ﹐ 批 予 由 弟 婦 兩 兄 弟 開 設 的 公 司 承 辦 。 律 政 司 引 用 普 通 法 內 的 公 職 人 員 行 為 失 當 罪 名 作 出 檢 控 。 岑 國 社 昨 天 在 區 域 法 院 否 認 全 部 四 項 罪 名 受 審 ﹐ 今 日 開 始 正 式 傳 召 證 人 出 庭 作 供 。
控 方 指 ﹐ 廉 政 公 署 於 本 年 六 月 卅 日 將 岑 國 社 拘 控 。 岑 經 儆 誡 下 ﹐ 揚 言 早 於 九 四 年 間 並 不 知 道 誠 信 警 衛 管 業 、 南 方 ( 警 衛 及 管 業 ) 以 及 環 亞 物 業 顧 問 有 限 公 司 的 總 裁 許 偉 然 及 股 東 兼 董 事 許 煥 榮 是 他 弟 婦 的 胞 兄 弟 。 直 至 九 七 年 誠 衛 獲 得 十 個 軍 事 用 地 ﹐ 包 括 軍 營 宿 舍 、 英 軍 醫 院 等 軍 用 產 業 管 理 合 約 時 ﹐ 他 才 知 悉 許 氏 兄 弟 是 他 的 姻 親 。 被 告 續 解 釋 他 沒 有 向 部 門 申 報 他 和 許 氏 之 間 的 關 係 ﹐ 是 因 為 許 煥 榮 並 非 誠 信 警 衛 的 主 要 股 東 ﹐ 而 許 偉 然 則 在 該 公 司 沒 有 持 有 任 何 股 份 ﹐ 且 於 九 七 年 間 ﹐ 他 已 被 調 離 產 業 署 。
被 告 在 儆 誡 會 面 中 ﹐ 亦 透 露 他 的 胞 弟 岑 和 社 自 九 四 年 開 始 替 許 煥 榮 打 工 ﹐ 每 月 收 取 薪 酬 ﹐ 但 有 關 薪 金 是 存 入 由 被 告 妻 子 紫 寧 玉 ( 譯 音 ) 和 弟 婦 聯 名 成 立 的 公 司 名 下 戶 口 。 當 他 得 知 彼 此 的 姻 親 關 係 後 ﹐ 他 即 覑 胞 弟 辭 職 。
但 控 方 指 根 據 出 入 境 紀 錄 ﹐ 九 三 年 九 月 廿 日 被 告 曾 和 弟 婦 的 兄 長 許 煥 榮 同 時 離 境 返 內 地 。
五 十 二 歲 岑 國 社 ﹐ 涉 案 期 間 為 產 業 署 總 產 業 經 理 ﹐ 被 捕 時 為 差 餉 物 業 估 價 署 首 席 物 業 估 價 測 量 師 。 被 控 的 四 項 身 為 公 職 人 員 行 為 失 當 罪 名 ﹐ 發 生 於 九 四 年 八 月 至 九 八 年 十 二 月 廿 一 日 期 間 ﹐ 不 但 沒 有 申 報 本 身 與 誠 信 警 衛 管 業 有 限 公 司 的 董 事 及 股 東 的 家 庭 關 係 所 引 致 的 利 益 衝 突 ﹐ 違 反 公 務 員 事 務 科 通 告 ﹐ 及 沒 有 避 嫌 參 與 誠 信 警 衛 的 資 格 預 審 的 決 策 過 程 ﹐ 甚 至 對 誠 信 作 出 偏 袒 ﹐ 縱 使 知 道 誠 信 警 衛 欠 缺 獲 得 參 與 投 標 的 預 先 審 定 資 格 ﹐ 仍 建 議 署 方 批 准 該 公 司 獲 得 有 關 資 格 。
代 表 控 方 的 大 律 師 呂 樂 倫 指 九 五 年 八 月 署 理 產 業 署 署 長 ﹐ 曾 否 決 誠 信 警 衛 的 投 標 預 審 申 請 ﹐ 認 為 該 公 司 沒 有 足 夠 專 業 人 士 ﹐ 承 辦 物 業 管 理 合 約 。 而 當 時 產 業 署 兩 高 層 在 評 估 報 告 中 ﹐ 亦 一 致 認 為 誠 信 警 衛 未 達 到 標 準 ﹐ 處 理 非 住 宅 管 理 合 約 。 但 事 後 被 告 卻 在 報 告 中 ﹐ 讚 賞 誠 信 警 衛 。
被 告 在 處 理 短 期 合 約 投 標 文 件 時 ﹐ 要 求 投 放 於 白 信 封 內 ﹐ 而 非 如 常 般 放 在 附 有 公 司 標 誌 的 密 封 信 封 內 遞 交 。 被 告 又 獨 自 保 管 所 有 投 標 文 件 ﹐ 及 控 制 短 期 合 約 的 報 價 系 統 ﹐ 將 九 成 的 短 期 合 約 全 批 給 該 案 的 三 家 公 司 。
案 件 編 號 ﹕ 區 域 法 院 六 八 七 ─ ─ ○ ○ 。
產業署前高官加刑囚30個月
【大紀元8月16日訊】首宗「以權謀私」被定罪的政府產業署前總產業經理岑國社，因四項身為公職人員行為失當罪名被判監九個月。
據蘋果日報報導, 上訴庭法官指出，原審法官錯誤將岑所干犯的罪行視為「小規模貪汙」，加上岑由始至終也毫無悔意，上訴庭認同九個月監禁明顯過輕，故批准律政司司長之覆核申請，將刑期大幅加至三十個月。
初判監禁九個月
五十四歲的答辯人岑國社，服務政府逾三十年，遭拘控時為差餉物業估價署首席物業估價測量師，為首名被控以同類罪名及定罪的首長級（第一級）官員。他於去年十二月被裁定四項身為公職人員行為失當罪名成立，被判監九個月，相信因定罪會損失近六百萬元長俸。
上訴庭副庭長司徒冕宣讀判詞時指出，原審法官將答辯人岑國社之罪行，相比為「小規模貪汙」，毫無疑問原審法官犯上嚴重錯誤。
副庭長表示，答辯人利用自己的職權，給予家人龐大的利益，失當行為不是單一錯誤，相反，他是多年來以不誠實的手法，將大批物業管理合約批給家人開設的物業管理及保安公司，但是有關公司根本不合乎資格。
副庭長指斥，被告的行為對政府投標合約程式之聲譽造成無法計算的損害。此外，答辯人至今也毫無悔意。
副庭長續表示，上訴庭認同律政司司長代表所講，九個月監禁實明顯地過輕，故批准律政司司長一方之覆核申請，將刑期加至三十個月。
逾億合約給親屬
岑被指控於九四年八月至九八年十二月期間，當時被借調到政府產業署出任總產業經理，但涉嫌以權謀私，將三十五份約值共一億五千六百萬元的政府物業管理投標合約，批予親屬所設、不合競投資格的保安公司，結果遭廉署拘控。
岑經審訊後，被裁定四項身為公職人員行為失當罪成立，該控罪最高刑罰為監禁七年。
案件編號：CAAR1/01
8/16/2001 2:04:00 PM
【本報訊】涉以權謀私的產業署前總產業經理岑國社，因將約值一億五千多萬元政府物業管理合約批予親友的保安公司，被裁定公職人員失當，判監三十個月，他不服判刑今年五月上訴終審法院，昨日被駁回，岑即時收監服刑。 記者：黃美莉
終審法院昨日頒下判詞中，五名法官一致同意撤銷上訴申請。判詞指岑身為公職人員，刻意隱瞞與保安公司的關係，建議將該公司納入競投合約名單之內，意圖徇私，行為失當應負罪責。
此案由香港廉政公署經辦。廉署在辦案過程中注意到，近年香港公職人員以職務謀取私利的案件，尤其是涉及政府合約招標的個案有增加趨勢。所以廉政公署正在諮詢律政司和行政當局，研究可否在《防止賄賂條例》中加入有關“以權謀私”條文的可行性，以便把普通法中“公職人員行為失當”罪行條文化、具體化。不過，特區終院負責審理此案的非常任法官梅師賢在岑案判詞中，澄清“公職人員行為失當罪”的定義是：公職人員在履行職務或與其職務有關的事件上，故意及有意圖地從事應受譴責的失當行為。
岑國社的代表律師在上訴時曾經提出，該罪行的定義中，有關涉事行為必須“意圖損害公眾利益”的意思模糊，令公職人員無法瞭解其意義，容易踩在犯罪邊緣。而梅師賢法官指出，該罪行的定義已有足夠的肯定性，作為一位清楚本身權責的公職人員，對辨別何為“失當行為”應該沒有困難。而且岑國社的失當行為是故意的，因為他事先知悉其行為是不誠實的。
“公職人員行為失當”在香港屬於普通法中的罪名，它可追溯到1704年的英國判例。自岑國社被控以“公職人員行為失當”後，曾引發香港法律界對此罪名定義是否“過於寬泛”的爭議，執法部門也認為需要就某些失當行為訂立特定的罪行定義。而梅師賢法官在岑案判詞中表示，全盤就該罪行立法，反會令現行的罪行判定“失去彈性”，最終讓某些嚴重行為成為“漏網之魚”。
被告岑國社為差餉物業估價署前首席物業估價測量師。事發於九四年八月至九八年十二月期間，岑當時被借調到政府產業署出任總產業經理，他涉嫌以權謀私，將三十五份約值共一億五千六百萬元的政府物業管理投標合約，批予由弟婦兩名兄長任職董事兼股東的保安公司，但該公司並不符合競投資格
FACC No.
1 of 2002
IN THE
COURT OF FINAL APPEAL OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 1 OF 2002 (CRIMINAL)
(ON
APPEAL FROM CACC NO. 3 OF 2001)
_____________________
Between
:
SHUM KWOK SHER
Appellant
and
HKSAR
Respondent
_____________________
Court : Chief Justice Li, Mr Justice Bokhary PJ,
Mr
Justice Chan PJ, Mr Justice Ribeiro PJ and
Sir Anthony
Mason NPJ
Dates of
Hearing : 7-10 May 2002
Date of
Judgment : 10 July 2002
J U D G
M E N T
Chief
Justice Li :
1. I agree with the judgment of Sir Anthony
Mason NPJ.
Mr
Justice Bokhary PJ :
2. In this important case the Court has had
the benefit of two excellent arguments.
In the course of one, Mr Michael Thomas SC for the prosecution made a
powerful plea for the retention of every defensible means at the law’s disposal
for the maintenance of proper standards in the conduct of public affairs. And in the course of the other, Mr John
Griffiths SC for the defendant made a no less powerful plea for insistence upon
that measure of certainty in the criminal law without which measure of
certainty the rule of law would be replaced by arbitrariness and there could be
no freedom.
3. The prosecution submits that the elements
of the common law offence of misconduct in public office are such that the
offence is committed whenever (i) a public official (ii) in the course of or in
relation to his public office; (iii) wilfully or intentionally (iv) culpably
misconducts himself. If that alone
formed its definition, I would regard this offence as unconstitutional for uncertainty. But I have had the advantage – the great
advantage as always – of reading in draft the judgment prepared by Sir Anthony
Mason NPJ. I have no doubt that the true
definition of this offence is as he states it.
This means, first, that the conduct must be both wilful and intentional rather
than merely wilful or intentional.
Secondly, it means that the conduct must be serious. Accordingly, the offence of misconduct in
public office is committed when (i) a public official (ii) in the course of or
in relation to his public office, (iii) wilfully and intentionally (iv)
culpably misconducts himself and the misconduct is serious. I respectfully agree that, so defined, this
offence is sufficiently certain to be constitutional.
4. As
Sir Anthony Mason NPJ points out, the degree of certainty required will depend
on the context of the law in question.
In agreeing that the offence of misconduct in public office is
sufficiently certain, I am crucially influenced by the fact that it is not the
type of offence which criminalises conduct in such a way as to limit the
exercise of a fundamental freedom eg. free speech. Where any offence of that type is concerned,
I think that an exceptionally high degree of certainty of definition would be
required if, quite apart from any other objection, it is not to be open to
objection as unconstitutional for uncertainty.
For in the absence of such a degree of definitional certainty, the whole
question of what is left of the fundamental freedom concerned would be thrown
into doubt. It is not by countenancing
such a state of affairs that the courts discharge their duty of protecting
fundamental freedoms.
5. For the reasons given by Sir Anthony Mason
NPJ, I too would dismiss this appeal.
Mr
Justice Chan PJ :
6. I agree with the judgment of Sir Anthony
Mason NPJ.
Mr
Justice Ribeiro PJ :
7. I agree with the judgment of Sir Anthony
Mason NPJ.
Sir
Anthony Mason NPJ :
8. This appeal from the Court of Appeal
(Stuart-Moore VP, Mayo VP and Woo JA) comes to the Court by way of the Appeal
Committee certifying that the decision of the Court of Appeal involved a point
of law of great and general importance, namely, whether the common law offence
of misconduct in public office is inconsistent with rights guaranteed by the
Basic Law, and the grant of leave to appeal.
By its decision, the Court of Appeal dismissed an appeal by the
appellant against his conviction of 4 offences of misconduct in public office.
Offences
charged
9. The appellant (the defendant) was tried
before His Honour Judge Line in the District Court on 4 charges of misconduct
in public office, contrary to Common Law.
At all material times, the appellant was alleged to have held the office
of Chief Property Manager of the Government Property Agency (“GPA”) of the Hong
Kong Government.
10. The particulars of Charge (1) were that
between 1 August 1994 and 31 December 1994, without reasonable excuse or
justification, the appellant did a series of acts calculated to injure the
public interest, namely dishonestly causing and permitting Onclever Limited
(“Onclever”) to be wrongfully pre-qualified as a tenderer for government
contracts for management of domestic accommodation by
(i) failing to declare a conflict of interests
arising from the appellant’s family relationship with the directors and
shareholders of Onclever, contrary to the Civil Service Branch Circular No.
19/1992 (“the Circular”);
(ii) failing to abstain from the decision making
process in respect of the pre-qualification of Onclever; and
(iii) acting partially in favour of Onclever in the
said pre-qualification process, namely recommending Onclever to be
pre-qualified despite knowledge of its lack of the necessary qualifications for
pre-qualification.
11. The particulars of Charge (2) were that
between 1 January 1997 and 31 December 1997, without reasonable excuse or
justification, the appellant did a series of acts calculated to injure the
public interest, namely dishonestly causing and permitting the wrongful award
of a management contract with a contract sum of $56,147,076 in favour of
Onclever by
(i) failing to declare a conflict of interests
arising from the appellant’s family relationship with the directors and
shareholders of Onclever, contrary to the Circular;
(ii) failing to abstain from the decision making
process in respect of recommendations to the Central Tender Board (“CTB”) of
successful tenderers for the management contract of the Military Estate; and
(iii) acting partially in favour of Onclever,
namely recommending Onclever to be awarded the said management contract despite
knowledge of its lack of the necessary qualifications for the said management
contract.
12. The particulars of Charge (3) were that
between 1 January 1998 and 21 December 1998, without reasonable excuse or
justification, the appellant did a series of acts calculated to injure the
public interest, namely dishonestly causing and permitting the wrongful award
of a management contract of the former Hong Kong International Airport at Kai
Tak with an estimated contract value of $87,560,000 in favour of Onclever. Similar particulars as those enumerated under
Charge (2) were repeated.
13. The particulars of Charge (4), as amended,
were that between 1 February 1996 and 1 November 1999, without reasonable
excuse and justification, the appellant did a series of acts calculated to
injure the public interest, namely dishonestly acting partially in favour of
Onclever, Southern Services Limited (“Southern Services”) and their related
company, AA Property Services Limited (“AA Property”), thereby causing and
permitting the said companies to be awarded in excess of 90% of all short term
contracts with a total contract sum in excess of $13,720,410.91 by
(i) failing to declare a conflict of interests
arising from the appellant’s family relationship with the directors and
shareholders of Onclever and Southern Services, contrary to the Circular;
(ii) keeping all the quotation letters in his
exclusive custody;
(iii) failing to abstain from the exercise of
control of the quotation system in respect of the award of short-term contracts
despite the conflict of interests aforesaid;
(iv) recommending the said companies to bid for
the short term contracts, i.e. (a) Onclever on all such contracts from 1 April
1996 until the end of December 1998; (b) AA Property Services for all such
contracts from 26 December 1996 until the end of August 1998; (c) Southern
Services for all such contracts from 13 April 1998 and the end of September
1998.
The
facts
14. The summary of the undisputed material, which
follows, is taken from the judgment of Woo JA in the Court of Appeal. His Lordship’s recital of the undisputed
facts is based on two statements of admitted facts pursuant to s.65C of the
Criminal Procedure Ordinance, Cap. 221.
15. Between 1 August 1994 and 21 December 1998,
the appellant was posted to the GPA as the Chief Property Manager, and as such,
he became responsible to the Government Property Administrator.
16. The Circular on conflict of interests was
issued on 4 December 1992, which contains, inter alia, the following
provisions:
“ This
circular sets out the common areas in which a conflict of interest may arise
between an officer’s official duties and his private interests. …
2. The situations described in this circular
are by no means exhaustive; … In case of
doubt, officers should seek the advice of their superior officers or departmental
secretaries.
3. All officers are strongly reminded that
they should at all times make a conscious effort to avoid or declare, as
appropriate, any conflict that may arise or has arisen. Failure to do so may render them liable to
disciplinary action which may result in removal from the service.
4. A conflict of interest is likely to arise
when an officer’s loyalty to the Government conflicts with his loyalty to:-
(a) his family and other relations;
…
5. … all civil servants should be honest and
impartial in their dealings with members of the public and with their
staff. A civil servant must not use his
position in the Civil Service, nor any information made available to him in his
capacity as a civil servant, to benefit himself or his family, financially or
otherwise, or to favour his relations or friends or any other group of people
with whom he has personal or social ties.
He should also avoid putting himself in a position where he might arouse
any suspicion of dishonesty, or of using his official position to benefit
himself or favour his family and friends.
6. An officer should therefore:-
…
(d)
report to his superior officer any private interest that might influence, or
appear to influence, his judgment in the performance of his duties.
…
16. …, the officer should declare his private
interest to his superior officer, who will then advise him how to proceed.”
17. The Discovery Bay Estate comprised around
6,000 residential units. Discovery Bay
Services Management Limited (“DBSM”) was responsible for management at the
estate. DBSM had contracted out security
services and cleaning services to other companies. Since 1989, up to 1999 and continuing,
Onclever had been awarded the security services contract. Cleaning work had been contracted out to
another company. There were about 90 security
guards at the Discovery Bay Estate.
18. There are 3 methods by which government
contracts are awarded to the private sector, namely,
(i) pre-qualify tendering, a method by which
the government identifies, or shortlists, a number of suitable tenderers, with
suitable qualifications to bid for particular types of government contracts. When the government intends to award a
contract of the type in question, the pre-qualified tenderers will be invited
to put in their tender documents and make a bid for the contract.
(ii) Open tendering, which is used where no
initial screening of the qualifications and experience of bidders is necessary.
(iii) Quotation contracts, which are usually short
term contracts of a much lesser contract sum than those awarded under the two
methods referred to above.
19. On 29 July 1994, by a memorandum dated that
date, the Government Property Administrator sought approval from the Chairman
of the CTB, who was the Secretary for the Treasury, for a pre-qualification
exercise to shortlist a number of suitable tenderers with proven experience in
residential property management. It was
intended that a total of eight 3-year term management contracts would be
awarded following the pre-qualification exercise. Such approval was given by the Chairman of
the CTB on 11 August 1994.
20. At the assessment panel meeting on 19 October
1994, Onclever was not recommended to be pre-qualified for management contracts
for non-domestic accommodation in accordance with the “Analysis of Documents”
prepared by Winnie Chiu (PW1). It was
recommended to be pre-qualified for management contracts for domestic
accommodation.
21. LUN Kai-yeung (PW2) prepared a Revised
Analysis of Documents to the effect that Onclever Limited had met all the
pre-qualification requirements for domestic accommodation. The Revised Analysis of Documents was sent to
the Assessment Panel members on 15 November 1994 for the record. On 25 November 1994, by a memo of that date,
the CTB accepted the recommendation of the Government Property Administrator
and approved the pre-qualification of Onclever and 7 other companies.
22. On 13 March 1997, by a memorandum signed by
the appellant dated that date, approval was sought from the Secretary for the
Treasury in respect of a Draft Tender Notice for the management of 10 military
sites. The contract would be awarded
through open tender. Paragraph 2 of the
Draft Tender Notice read:
“2. Tenders are invited from tenderers with the following qualifications
and experience only –
‘Property managing agents in sound
financial status with a minimum of five years of experience in estate
management field and currently managing residential estates of not less than
1,000 units, one of which must comprise 300 or more units.’
Documentary
proof of the above qualification and experience must be submitted with the
tender. …”
23. On 1 May 1997, by a memorandum signed by the
appellant and dated that date, approval was sought from the Secretary for the
Treasury on a revised Draft Tender Notice in which para. 2 referred to above
was deleted. It was stated in that
memorandum:
“In view of the nature of the
properties managed i.e., they are all awaiting redevelopment or sale in the
future and not intended for extensive use in their present condition, it is not
expected that a first class management service is required. I am content that a tenderer who can meet the
minimum tender specifications and offer the lowest cost will be competent to
take on the job … Against this
background, the ‘Tender Notice’ and ‘Information on Tenderer’s Qualification
and Experience’ have been revised and a copy of each is attached herewith for
your reference please.”
24. In a memorandum signed by the appellant to
the Secretary of the CTB dated 7 July 1997, it was stated:
“The tender submitted by Onclever
Ltd is the lowest. … Onclever Ltd was
established in 1989 and has more than seven years in estate management
field. It has more than 10,000
residential units under its management (with one estate at Discovery Bay with
6,064 units) and currently in sound financial status … . Onclever Ltd has previously been engaged in
some minor service orders with this Agency and its performance has been
good. I also confirm that Onclever Ltd
is suitable to perform the contract. I
therefore recommend that this contract with an estimated contract value at
HK$56,147,076 be awarded to Onclever Ltd.”
25. The CTB approved the award of the contract to
Onclever at a total estimated cost of $56,147,076 for the 3-year management
contract. The appellant executed the
management agreement on behalf of the GPA.
Patrick W Y Hui (“Patrick Hui”) executed the agreement on behalf of
Onclever in the presence of Paul W W Hui (“Paul Hui”).
26. From April 1998, GPA intended to launch a
tendering exercise to select a contractor for managing the Kai Tak site after
decommissioning of the airport. The
Tender Notice which was published in furtherance of this exercise specified
that:
“Tenders are invited from
tenderers with the following qualifications and experience only –
‘Property managing agents in sound
financial status with a minimum of five years experience in estate management
field and currently managing residential estates of not less than 2,000 units
with one of which must comprise 1,000 or more units and non-domestic estates of
substantial magnitude of not less than 100,000 square metre.’”
27. In a memorandum signed by the appellant to
the Chairman of the CTB dated 17 July 1998, it was stated:
“Apart from quoting the most
competitive price, Onclever is also a reputable estate management company with
good reference and track record in the business. It was incorporated in 1989 and has some
eight years’ experience in estate management. … The largest estate in the
private sector under its management is Discovery Bay comprising 6,064 residential
units and 2,310,000 square metre of non-domestic area. The Discovery Bay Services Management Ltd
rated Onclever’s performance as good and they had no hesitation in recommending
Onclever’s service. … Onclever is also GPA’s property management and leasing
agent of all ten ex-military sites since 1 August 1997. The contract sum is HK$56 million. Its performance with GPA is of good
standard.”
28. The CTB approved the award of the contract to
Onclever at a maximum amount of $87.56 million.
As a result, Onclever was awarded this contract. The Chairperson of the CTB and the CTB would
not have approved the award of this Kai Tak management contract to Onclever had
she and it known that the representations as to Onclever’s experience in the
property management field set out in the appellant’s memo dated 17 July 1998
were untrue.
29. On 20 September 1993, the appellant, Paul Hui
and one NG Kit-ling passed through Hunghom Immigration Control Point at the
same immigration terminal at 1431 hours, and departed from Hong Kong. On 21 September 1993, the appellant returned
to Hong Kong at 2135 hours, Paul Hui at 2031 hours and NG Kit-ling at 2135
hours.
30. The appellant had never declared any conflict
of interest to his employers.
The
prosecution case at trial
31. The case for the prosecution was that at all
relevant times, the appellant, as the Chief Property Manager of the GPA, had
misconducted himself in that public office in respect of his official dealing
with Onclever and its associated companies.
32. The appellant had a younger brother, Eric
Shum. Eric Shum married Stella Hui in
December 1980. Stella Hui had two
brothers, Paul Hui and Patrick Hui. Paul
Hui was the managing director and majority shareholder of Onclever and a
director of Southern Services. Patrick
Hui was the president of Onclever and a director and shareholder of Southern
Services.
33. In 1992, the appellant’s wife and Stella Hui
purchased a flat in Cheung Chau Island.
The appellant gave Stella Hui money each month for the mortgage on the
property. The appellant’s wife and
Stella Hui set up a computer company which worked for, and received income
from, Onclever.
34. Before 1994, Eric Shum was employed by Paul
Hui to fix Onclever’s computers and maintain its computerised accounting
system. When Onclever was pre-qualified
for Government contracts in 1994 the appellant told Eric Shum to stop working
for Paul Hui.
35. Onclever was a security company, providing
security services to buildings. It did
not have 5 years’ experience in property management: this was one of the
conditions of eligibility for pre-qualification to tender for large government
contracts. Despite knowing this lack of
experience on the part of Onclever, in 1994 the appellant pushed Onclever’s
cause and wrongly caused it to be qualified.
Onclever and its associated companies were treated preferentially by the
appellant by always being selected for government contracts.
36. In 1995, Mr Tanner (PW9) very soon after
taking over from the appellant (who had moved to another post in the GPA) had
doubts as to whether Onclever should have been pre-qualified due to their lack
of experience. He successfully
recommended to the CTB that they be removed for this reason. This was a unique event and it was common
knowledge in the GPA where Mr Tanner’s building management division and the
military estates division, where the appellant then worked, had offices on the
same floor.
37. In 1997, the appellant wrongfully caused
Onclever to be awarded the $56 million management contract for government
military sites despite its lack of the required qualification for having had 5
years’ experience in property management.
In 1998, the appellant did the same in relation to the $87 million Kai
Tak contract.
38. The appellant could authorize short-term
contracts. He favoured Onclever,
Southern Services and AA Property in respect of such contracts by instructing a
subordinate, Chan Ping-kwong (PW12), that they were always to be invited to
tender for such contracts. These
instructions were referred to at the trial as “the Chan instructions”. The companies were awarded over 90% of these
short-term contracts between April 1996 and December 1998 to a value in excess
of $13 million. The appellant knew the
family connection between himself and the Hui brothers (“the relationship”) but
never declared the relationship or any conflict of interest and never abstained
from the decision making process in relation to these matters.
The
judgment of the trial judge
39. The trial judge concluded that the defence
case was not credible and rejected it.
Material aspects of the appellant’s case are dealt with below. He accepted the evidence given by the
prosecution witnesses and rejected that of the appellant and his
witnesses. The trial judge convicted the
appellant on the 4 charges and sentenced him to concurrent terms of 9 months
imprisonment (which sentence was increased to concurrent terms of 30 months
imprisonment by the Court of Appeal upon an application for review by the
Secretary for Justice).
40. The judge made the following findings. At latest since his visit to the Mainland
with Paul Hui in September 1993, the appellant had known that Paul and Patrick
Hui were brothers of Stella Hui, the wife of the appellant’s younger brother,
Eric Shum. Realising that the
relationship posed a conflict of interests, the appellant failed to disclose the
relationship to anyone in the GPA.
Instead, he pushed Onclever to qualify in the pre-qualification exercise
for Government tenderers though he knew perfectly well that Onclever did not
have the required experience of 5 years in property management. He gave the Chan instructions in awarding
contracts of less than $500,000, over which process he had control, and that
resulted in over 90%, totalling in excess of $13 million, of such contracts in
the relevant period being awarded to Onclever and its associated companies,
Southern Services and AA Property. He
also recommended Onclever to be awarded the management contract for the 10
military sites worth $56 million and that for the Kai Tak site worth $87
million, misrepresenting that it had the required experience. The Judge found that the reasons for the
appellant’s non-disclosure was “his desire to help and favour Onclever” and
that in each case he was partial.
41. The judge said:
“In relation to the assessment
panel I was sure that his moving of it to recommend Onclever for
pre-qualification was due in significant part to his hidden connection to
Onclever and not just due to a desire for new blood and greater
competition.”
42. The judge went on to find that the appellant
acted dishonestly, applying the test in R v. Ghosh [1982] QB 1053, by
deliberately not disclosing a connection that itself prompted a public officer
to favour a company in a significant way.
The Judge further found that the appellant “must have … realised” that
what he did was dishonest.
43. He also found that the appellant’s voice was
the only voice raised in favour of the proposition that Onclever had met the
criteria for pre-qualification, that he knew that Onclever did not meet the
criteria, that he came to the meeting of the assessment panel knowing that
Onclever did not do so but with the intention of having them pre-qualified if
he could and that he successfully persuaded the panel to do so.
44. The judge found, in relation to the first
three charges that Onclever was wrongfully pre-qualified and awarded the two
contracts, that it was the appellant who caused the wrongful qualification and
that, in relation to the fourth charge, that the appellant gave the Chan
instructions.
45. The judge further found that the appellant’s
acts were calculated to injure the public interest in that the appellant, in
each case, tilted in favour of Onclever what should have been a level
playing-field.
The
decision of the Court of Appeal
46. The Court of Appeal unanimously dismissed the
appellant’s appeal on the eleven grounds argued. Of these grounds, only the ground that the
offence of public misconduct is so vague, uncertain and ill-defined that it is
inconsistent with arts 9, 14.2, 14.3 and 26 of the International Covenant on
Civil and Political Rights (“ICCPR”) is material to the appeal to this
Court. The Court of Appeal considered
that the offence was not so vague, uncertain or ill-defined as to be
inconsistent with the ICCPR.
Appellant’s
case in this Court
47. The appellant accepts that misconduct in
public office was an offence at common law but contends that it is too vague,
uncertain and ill-defined to comply with arts 8, 28 and 39 of the Basic Law and
arts 9, 14.2, 15.1 and 26 of the ICCPR.
48. Central to the appellant’s case are the
remarks made by Lord Widgery CJ in R v. Dytham [1979] QB 722, which were quoted
and applied in the courts below in this case.
In that case, his Lordship said (at 727-728) with reference to the charge
of misconduct in public office in that case:
“This involves an element of
culpability which is not restricted to corruption or dishonesty but which must
be of such a degree that the misconduct impugned is calculated to injure the
public interest so as to call for condemnation and punishment.”
49. The appellant identifies various elements in
this statement which are said to be uncertain.
They relate both to the elements of the offence and its scope. Thus, the appellant argues that the elements
of “culpability”, “calculated to injure
the public interest” and of conduct that calls for “condemnation and
punishment” are uncertain, as is the requisite mens rea or culpable state of
mind as well as the question whether it is one or more than one offence. The appellant also argues that, to the extent
that dishonesty is an element in the offence, the Reg v. Ghosh test, applied by
the trial judge, is uncertain and arbitrary.
According to the argument, the process of reaching a conviction is
therefore “arbitrary”, contrary to art. 9 of the ICCPR. The appellant also argues that, in so far as
it is necessary to embark upon research into constitutional and jurisprudential
history in order to throw light on the elements of the offence, the law is
insufficiently accessible and contravenes art. 39 of the Basic Law. Further, the appellant contends that the
extension of the offence beyond its limits as described in the old authorities
violates the principle against retrospective imposition of criminal liability
contrary to art. 15 of the ICCPR.
Respondent’s
case in this Court
50. The respondent’s case is that the
characteristics of the common law offence of misconduct in public office are
sufficiently certain to satisfy the standard of legal certainty. According to the respondent, the essential
characteristics of the offence are:
(1) A public official;
(2) who in the course of or in relation to his
public office;
(3) wilfully or intentionally;
(4) culpably misconducts himself in public
office.
Articles
28 and 39 of the Basic Law and arts 9, 14, 15 and 26 of the ICCPR
51. Article 28 of the Basic Law provides:
“The freedom of the person of Hong
Kong residents shall be inviolable.
No Hong
Kong resident shall be subjected to arbitrary or unlawful arrest, detention or
imprisonment …”
52. Article 39 of the Basic Law stipulates that
the provisions of the ICCPR as applied in Hong Kong shall remain in force and
shall be implemented through the laws of the HKSAR. The second paragraph of the article goes on
to provide:
“The rights and freedoms enjoyed
by Hong Kong residents shall not be restricted unless as prescribed by
law. Such restrictions shall not
contravene the provisions of the preceding paragraph of this Article.”
The Hong
Kong Bill of Rights Ordinance (Cap. 383)
53. The Hong Kong Bill of Rights Ordinance
provides for the incorporation into the laws of Hong Kong of the provisions of
the ICCPR as applied to Hong Kong. The
incorporated provisions are contained in the Hong Kong Bill of Rights (“the
Bill”) which is set out in Part II of the Ordinance. Articles 5(1), 11(1), 12 and 22 of the Bill
incorporate the provisions of arts 9.1, 14.2, 15.1 and 26 of the ICCPR in the
same terms. Accordingly, the provisions
of the Bill are the embodiment of the ICCPR as applied to Hong Kong (HKSAR v.
Ng Kung Siu (1999) 2 HKCFAR 442 at 455 BE, per Li CJ; 463 J, per Bokhary
PJ).
54. Article 5(1) of the Bill provides:
“Everyone has the right to liberty
and security of person. No one shall be
subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”
55. Article 11(1) of the Bill provides:
“Everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty
according to law.”
56. Article 12(1) of the Bill provides:
“No one shall be held guilty of
any criminal offence on account of any act or omission which did not constitute
a criminal offence, under Hong Kong or international law, at the time when it
was committed …”
57. Article 22 of the Bill provides:
“All persons are equal before the
law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.”
Mr
Griffiths SC for the appellant did not advance oral argument in support of the
case based on art. 22. Accordingly, I
shall say no more about it.
The
interpretation of the Basic Law and the Bill
58. It is established that art. 39, being part of
Ch. III of the Basic Law which provides for the fundamental rights and duties
of the residents of the HKSAR, is to be given both a purposive and generous
interpretation (Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at
28D-29A, per Li CJ). The same approach
is to be adopted to the provisions of the Bill as the object of those
provisions is to guarantee the fundamental rights and freedoms of the residents
of the HKSAR.
59. In interpreting the provisions of Ch. III of the
Basic Law and the provisions of the Bill, the Court may consider it appropriate
to take account of the established principles of international jurisprudence as
well as the decisions of international and national courts and tribunals on
like or substantially similar provisions in the ICCPR, other international
instruments and national constitutions.
(See, for example, Ahnee v. DPP [1999] 2 AC 294 at 306, where the Privy
Council, in construing s.10(4) of the Constitution of Mauritius which was in
terms virtually identical with art. 12(1) of the Bill, applied to art. 10(4)
the interpretation given by the European Court of Human Rights in Sunday Times
v. United Kingdom (1979) 2 EHRR 245 to the expression “prescribed by law” in
art. 10(2) of the European Convention on Human Rights.)
The
principle of legal certainty and the requirement of accessibility
60. International human rights jurisprudence has
developed to the point that it is now widely recognised that the expression
“prescribed by law”, when used in a context such as art. 39 of the Basic Law,
mandates the principle of legal certainty.
This principle is likewise incorporated in the expression “according to
law” in art. 11(1) of the Bill.
61. As to art. 5(1), the expression “established
by law” is used. However, there is a
question as to the scope of art. 5(1), whether it is only concerned with laws
relating to arrest or detention before trial or whether it extends to the
substantive law for breach of which the person is charged. That question was not fully argued in this
case. Since the appellant’s case, based
on art. 5(1) with the wider scope, does not add to his case based on art. 39 of
the Basic Law or art. 11(1) of the Bill, it is unnecessary to consider the
question of the scope of art. 5(1) in this case. Accordingly, I shall say nothing more on art.
5(1).
62. The decisions of the European Court of Human
Rights authoritatively establish that the expression “prescribed by law” in
art. 10(2) of the European Convention on Human Rights and Fundamental Freedoms
(“the European Convention”) incorporate the requirements that the relevant law be
certain and that it be adequately accessible (Sunday Times v. United Kingdom
(1979) 2 EHRR 245 (the thalidomide case); SW v. United Kingdom (1995) 21 EHRR
363 at 398; Hashman and Harrup v. United Kingdom (1999) 30 EHRR 241). The Supreme Court of Canada has expressed the
principle of legal certainty in like terms in the context of fundamental rights
and freedoms guaranteed by the Canadian Charter of Rights and Freedoms (R v.
Nova Scotia Pharmaceutical Society (1992) 74 CCC (3d) 289; R v. Morales (1992)
77 CCC (3d) 91), as indeed has the Privy Council in interpreting and applying
the Constitution of Antigua (De Freitas v. Ministry of Agriculture [1999] 1 AC
69 at 78-79, per Lord Clyde).
63. In Sunday Times v. United Kingdom, the Court
rejected an argument that the English law of contempt of court was so vague and
uncertain and that the principles of contempt of court enunciated by the House
of Lords in Attorney-General v. Times Newspapers Ltd [1974] AC 273 so novel
that the restraint imposed upon freedom of expression by the law of contempt
could not be considered as “prescribed by law” within the meaning of art. 10 of
the Convention. The majority, with
reference to that expression, said (at 271, para. 49):
“First, the law must be adequately
accessible: the citizen must be able to have an indication that is adequate in
the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a
‘law’ unless it is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able – if need be with appropriate advice –
to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable.
Again, whilst certainty is highly desirable, it may bring in its train
excessive rigidity and the law must be able to keep pace with changing
circumstances. Accordingly, many laws
are inevitably couched in terms which, to a greater or lesser extent, are vague
and whose interpretation and application are questions of practice.”
64. In Hashman and Harrup v. United Kingdom
(1999) 30 EHRR 241, where conduct contra bonos mores was held to be too vague
and imprecise to justify a restriction on the applicants’ liberty of action in
the form of an order binding them to keep the peace and be of good behaviour,
the European Court of Human Rights pointed to the tension between requiring a
law to be formulated with sufficient precision and the desirability of avoiding
rigidity in the law. The Court said (at
para. 31):
“The Court recalls that one of the
requirements flowing from the expression ‘prescribed by law’ is
foreseeability. A norm cannot be
regarded as a ‘law’ unless it is formulated with sufficient precision to enable
the citizen to regulate his conduct. At
the same time, whilst certainty in the law is highly desirable, it may bring in
its train excessive rigidity and the law must be able to keep pace with changing
circumstances. The level of precision
required of domestic legislation – which cannot in any case provide for every
eventuality – depends to a considerable degree on the content of the instrument
in question, the field it is designed to cover and the number and status of
those to whom it is addressed.”
65. In conformity with this statement, in SW v.
United Kingdom (1995) 21 EHRR 363, the Court rejected an argument that the
offence of marital rape violated art. 7 of the European Convention (which is
identical with art. 12(1) of the Bill) relating to retrospectivity. The argument was based on the recognition by
the House of Lords that the old principle that a husband could not rape his
wife no longer formed part of the law.
The Court, accepting that art. 7 applied to a common law offence, stated
(at para. 36 ):
“There will always be a need for
elucidation of doubtful points and for adaptation to changing
circumstances. Indeed, in the United
Kingdom, as in the other Convention States, the progressive development of the
criminal law through judicial law-making is a well entrenched and necessary
part of legal tradition. Article 7 of
the Convention cannot be read as outlawing the gradual clarification of the rules
of criminal liability through judicial interpretation from case to case,
provided that the resultant development is consistent with the essence of the
offence and could reasonably be foreseen.”
See also
Reg v. Cotter [2002] EWCA Crim 1033 at paras 35-36.
The
offence of misconduct in public office
66. The offence of misconduct in public office
has a long history, going back at least to 1704. In that year, in the case of Anonymous (1704)
6 Mod 96 (Case 136), the Court said:
“If a man be made an officer by
Act of Parliament, and misbehave himself in his office, he is indictable for it
at common law, and any public officer is indictable for misbehaviour in his
office.”
A year
later, in R v. Wyat (1705) 1 Salk 380 the offence was expressed again in very
broad terms when the Court said:
“Where an officer neglects a duty
incumbent on him, either by common law or statute, he is for his default
indictable.”
67. Since then there have been many cases in
which public officers have been convicted of the offence. It must be acknowledged, however, that over
time the elements of the offence have been described in a variety of different
ways. Thus, Stephen’s Digest 9th Edn
(1950), art. 142 stated
“Every public officer commits a
misdemeanour who, in the exercise or under colour of exercising the duties of
his office, does any illegal act, or abuses any discretionary power with which
he is invested by law from an improper motive …
But an illegal exercise of authority, caused by a mistake as to the law,
made in good faith, is not a misdemeanour …”
In R v.
Borron (1820) 3 B & Ald 432, a case concerning the conduct of a magistrate,
Abbott CJ stated (at 434) that the question was “from what motive had [the act]
proceeded; whether from a dishonest, oppressive, or corrupt motive.” And, in R v. Marshall (1855) 4 EL & BL
475, Lord Campbell CJ said that “a judge who maliciously obstructs the course
of justice is guilty of a misdemeanour”.
Similar statements have been made in other cases. (See, for example, R v. Young and Pitts
(1758) 1 Burr 556; Commonwealth v. Steinberg (1976) 362 A 2d 379). On the other hand, there are other
authorities which state that a breach of duty on the part of a public official
committed with wilful intent is all that is required to make out the
offence. (See, for example, Bacon’s
Abridgement 1740 ed at 744; R v. Halford (Case 223) (1734) 7 Mod 193; Question
of Law Reserved (No. 2 of 1996) 88 A Crim R 417 at 418, per Doyle CJ).
68. It is not surprising, therefore, that the
comment has been made from time to time that the offence is not easy to
define. It has been said that it is “not
easy to lay down with precision the exact limits of the kind of misconduct or
misbehaviour” (R v. Llewellyn-Jones (1967) 51 Cr App R 4 at 6); that “the
offence is not easily capable of exhaustive definition” and “there is some
uncertainty as to the precise content of the offence and even its correct
title” (Question of Law Reserved (No. 2 of 1996) at 420, 438); that “the very
notion of misfeasance in public office … imports more nebulous issues [than
murder] that are less easy to define” (Ex parte Telegraph Group [2001] 1 WLR
1983 at 1993); and that it is “obscure and often ill-defined” (PD Finn,
“Official Misconduct” [1978] 2 Crim LJ 307 at 318). Nonetheless, it is clearly established that
it is an offence at common law (R v. Llewellyn-Jones).
69. The difficulty which has been experienced in
defining with precision the elements of the offence stem not so much from the
various ways in which they have been expressed as from the range of misconduct
by officials which may fall within the reach of the offence. This is because, to quote the words of PD
Finn, “Public Officers: Some Personal Liabilities” (1977) 51 Australian Law
Journal 313 at 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.
70. Lord Mansfield appears to have recognised
this problem as early as 1783. In R v.
Bembridge (1783) 22 ST 1, his Lordship spoke (at 155-156) of two principles,
one governing the officeholder who accepts an office of trust and confidence
concerning the public and acts “contrary to the duty of his office”, the other
governing “a breach of trust, a fraud, or an imposition in a subject concerning
the public”. Both principles were held
to apply to Bembridge, an accountant in the office of the paymaster-general of
the forces. It was his duty to see that
amounts owing to the Crown were properly included in the account. Not only did he fail to perform his duty in
this respect, he “corruptly” concealed from the auditors the existence of
amounts owing.
71. It is not entirely clear whether Lord
Mansfield’s reference to two principles was intended to relate to the one
offence or two different offences. Be
this as it may, in the later cases, the offence has been regarded as a single
offence.
72. It was only natural that, in the course of
time, the description of the offence tended to focus on the nature of the
misconduct charged, more particularly in those cases where the misconduct
complained of was not a simple breach of a positive duty to which the officer
was subject, but consisted of a failure to exercise, or amounted to a wrongful
exercise of, a discretion or power, as, for example when an officer exercised a
discretion or power attaching to his office for personal gain or advantage. There were other cases where the officer
acted outside the scope of the powers of his office.
73. Most of the reported cases in the 18th and
19th centuries involved dishonest, corrupt or partial conduct on the part of
officeholders who, in performing their functions or exercising their powers,
did so for personal gain or personal advantage.
In describing the relevant conduct, the courts referred to the
defendant’s motive as “dishonest”, “corrupt”, “partial” or used some other adjective
to describe an improper motive. These
descriptions appeared to reflect a view that, in some cases at least, a motive
so described must be established before the defendant could be convicted of
misconduct in public office.
R v.
Dytham
74. It was in the light of the law as it had then
developed that R v. Dytham was decided.
In that case, the appellant, who was a uniformed constable, was present
at and a witness to the criminal offence of violent assault on a man by others
resulting in the man’s death. The
appellant failed to carry out his duty as a police constable by omitting to
take any steps to preserve the Queen’s peace or to protect the person of the
man or to arrest or bring to justice his assailants. The appellant was convicted. The English Court of Appeal dismissed an
appeal from the conviction.
75. Lord Widgery CJ, who delivered the judgment
of the Court, in referring to the earlier cases, said (at 726C):
“Indeed in some cases the conduct
impugned cannot be shown to have been misconduct unless it was done with a
corrupt or oblique motive. This was the
position for example in Rex v. Bembridge (1783) 3 Doug KB 327; and also in the
modern case of Reg v. Llewellyn-Jones [1968] 1 QB 429. There the registrar of a county court was
charged in a count which alleged that he had made an order in relation to funds
under his control ‘in the expectation that he would gain a personal advantage
from the making of such an order.’”
His
Lordship went on to discuss the amended count in the indictment in the case
before the Court. Speaking of neglect of
duty, his Lordship observed (at 727G-728A):
“The neglect must be wilful and
not merely inadvertent; and it must be culpable in the sense that it is without
reasonable excuse or justification.
… it was not suggested that the
appellant could not have summoned or sought assistance to help the victim or to
arrest his assailants … The allegation made was not of mere non-feasance but of
deliberate failure and wilful neglect.
This
involves an element of culpability which is not restricted to corruption or
dishonesty but which must be of such a degree that the misconduct impugned is
calculated to injure the public interest so as to call for condemnation and
punishment. Whether such a situation is
revealed by the evidence is a matter that a jury has to decide.”
76. Two points need to be made about R v.
Dytham. The first is that when Lord
Widgery’s remarks in the last paragraph just quoted are read in context, they
are not to be understood as a definition of the offence of misconduct in public
office or as a definition of the elements of the offence. The terms used by his Lordship “calculated to
injure the public interest so as to call for condemnation and punishment” are
not the language of definition. Read in
context, the words suggest that his Lordship was endeavouring to convey the
idea that the conduct complained must be injurious to the public interest and
of a sufficiently serious nature to warrant conviction and punishment. The linkage his Lordship makes with the idea
of culpability reinforces this view of his Lordship’s purpose. In this respect, it is to be noted that Lord
Widgery employs the concept of culpability to embrace two different matters,
namely, first, the absence of reasonable excuse or justification and, secondly,
that the conduct complained of may not involve corruption or dishonesty but
must be of a sufficiently serious nature.
77. The second point is that there was no clear
previous authority for the proposition that, in any category of case of
misconduct in public office, the prosecution must prove to the satisfaction of
a jury, as elements of the offence, that the conduct of the defendant was
calculated to injure the public interest so as to call for condemnation and
punishment.
78. For these reasons I do not accept the
appellant’s principal submission that the offence as defined in R v. Dytham is
insufficiently precise to constitute “law” within the meaning of art. 11(1) of
the Bill or to satisfy the requirements “prescribed by law” in art. 39 of the
Basic Law and “established by law” in art. 5(1) of the Bill. This conclusion, however, by no means
disposes of the appellant’s case.
Question
of Law Reserved (No. 2 of 1996)
79. It is necessary to identify the constituent
elements of the offence. With that end
in view I turn to Question of Law Reserved (No. 2 of 1996) 88 A Crim R
417. In that case, police officers and a
private citizen were charged in a number of counts with “Abuse of Public Office
(Common Law)”. The prosecution case was
that the three police officers gained access to confidential information in
their official capacities and passed that information to the private
citizen. The trial judge reserved questions
of law for the consideration of the Court of Criminal Appeal. The Court held that there existed a generic
indictable common law offence of misconduct in public office which covered
misfeasance or nonfeasance in public office by a public officer.
80. Doyle CJ considered (at 418) that the object
of the offence was correctly stated by PD Finn (as he then was) in his article
“Official Misconduct” (1978) 2 Crim LJ 307 when he said (at 308):
“Official misconduct is not
concerned primarily with the abuse of official position for pecuniary gain,
with corruption in the popular sense.
Its object is simply to ensure that an official does not, by any wilful
act or omission, act contrary to the duties of his office, does not abuse
intentionally the trust reposed in him.”
With
Doyle CJ, I agree that this statement accurately states the object of the
offence.
Identifying
the elements of the offence, including its mental element
81. As I have already noted, in an earlier
article, “Public Officers: Some Personal Liabilities” (1977) 51 Australian Law
Journal 313, Dr Finn had correctly pointed out (at 315) that the essence of the
offence is that an officer who has been entrusted with powers and duties for
the public benefit has abused them or his official position. 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.
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. So much is established by the authorities,
notably the more recent cases including R v. Dytham and Question of Law
Reserved (No. 2 of 1996) at 418, per Doyle CJ.
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 as culpable misconduct. A dishonest or corrupt motive will be
necessary as in situations where the officer is exercising a power or discretion
with a view to conferring a benefit or advantage on himself, a relative or
friend. 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.
84. 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.
Subject to two qualifications, this statement of the elements of the
offence accords with the respondent’s submission.
85. The first qualification is that, although the
respondent submits that the misconduct must be either “wilful” or
“intentional”, I consider that the misconduct must be “wilful” as well as
“intentional”. In R v. Sheppard [1981]
AC 394, the House of Lords considered a statutory provision which made it an
offence “wilfully” to neglect a child in a manner likely to cause him
unnecessary suffering or injury to health.
By majority it was held that a person “wilfully” fails to provide
medical attention for a child if he (i) deliberately does so, knowing that the
child’s health may suffer unless he receives attention; or (ii) does so because
he does not care whether the child may need medical attention or not. In other words, “wilfully” signifies
knowledge or advertence to the consequences, 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 misfeasance and other forms of
misconduct in public office. For this
reason “wilfully and “intentionally” are not employed disjunctively in the
statement of the elements of the offence in the preceding paragraph.
86. The second qualification which I attach to
the elements of the offence stated in the previous paragraph is that the
misconduct complained of must be serious misconduct. Whether it is serious misconduct in this
context is to be determined having regard to the responsibilities of the office
and the officeholder, the importance of the public objects which they serve and
the nature and extent of the departure from those responsibilities.
87.
Although this qualification is not made in the earlier cases, it
underlies the concluding observations of Lord Widgery CJ in R v. Dytham. The qualification is consistent with the
concept of abuse of office and it is appropriate that the offence should be so
qualified in the light of the creation of a range of disciplinary offences that
now apply in the case of public sector employees. The qualification is not to be taken as a
dividing line between the offence of misconduct in public office and
disciplinary offences. There is no doubt
a borderland in which the common law offence and disciplinary offences
overlap.
The
offence is not imprecise or vague or arbitrary
88. The common law offence as so explained is not
so imprecise as to offend the requirement of Basic Law art. 39 or of arts 5(1)
and 11(1) of the Bill. Nor is it
arbitrary within the meaning of art. 28 of the Basic Law. The offence is unusual in that it applies to
various forms of misconduct by a public officer with the result that what the
prosecution needs to establish varies with the form of culpable misconduct
alleged. That variation does not,
however, lead to the existence at common law of more than one offence. Despite its variations, it has always been
recognised as the one offence.
89. In expressing the view that there is no
relevant imprecision, I bear in mind the passages in Sunday Times v. United
Kingdom, Sabapathee v. The State [1999] 1 WLR 1836 and R v. Nova Scotia
Pharmaceutical Society (1992) 74 CCC (3d) 289 to the effect that a law must be
adequately accessible in the sense that it gives a person an adequate indication
of the law relevant to his situation so that (if need be with advice) he can
regulate his conduct. On the other hand,
it is well settled that the degree of precision required will vary according to
the context of the law. In Sabapathee v.
The State, Lord Hope of Craighead, speaking for the Privy Council, said (at
1843):
“But the precision which is needed
to avoid [striking down as unconstitutional] will necessarily vary according to
the subject matter. The fact that a law
is expressed in broad terms does not mean that it must be held to have failed
to reach the required standard. In an
ideal world it ought to be possible to define a crime in terms which identified
the precise dividing line between conduct which was, and that which was not, criminal. But some conduct which the law may quite
properly wish to prescribe as criminal may best be described by reference to
the nature of the activity rather than to particular methods of committing it. It may be impossible to predict all these
methods with absolute certainty, or there may be good grounds for thinking that
attempts to do so would lead to undesirable rigidity. In such situations a description of the
nature of the activity which is to be penalised will provide sufficient notice
to the individual that any conduct falling within that description is to be
regarded as criminal. The application of
that description to the various situations as they arise will then be a matter
for the courts to decide in the light of experience.”
90. To similar effect are the remarks of Gonthier
J in R v. Nova Scotia Pharmaceutical Society in delivering the judgment of the
Supreme Court of Canada. He noted (at
306c) that the threshold for a holding of vagueness is relatively high. He went on to say (at 310b-c):
“an unintelligible provision gives
insufficient guidance for legal debate and is therefore unconstitutionally
vague.”
He
continued (at 311c-d):
“… it is inherent [in] our legal
system that some conduct will fall along the boundaries of the area of risk; no
definite prediction can then be made.
Guidance, not direction, of conduct is a more realistic objective. The ECHR has repeatedly warned against a
quest for certainty and adopted this ‘area of risk’ approach …”
Gonthier
J concluded his discussion of the point with comments which are particularly
apposite to the case in hand. He said
(at 312h-313c):
“… laws that are framed in general
terms may be better suited to the achievement of their objectives, in as much
as in fields governed by public policy circumstances may vary widely in time
and from one case to the other. A very
detailed enactment would not provide the required flexibility, and it might …
obscure its purposes behind a veil of detailed provisions. … One must be wary
of using the doctrine of vagueness to prevent or impede state action in
furtherance of valid social objectives, by requiring the law to achieve a
degree of precision to which the subject-matter does not lend itself.”
91. The common law offence of misconduct in
public office is necessarily cast in general terms because it is designed to
cover many forms of misconduct on the part of public officers. An alternative way of dealing with misconduct
by public officers would be to enact a statute formulating specific offences
for particular categories of misconduct in public office. The adoption of that course would involve a
loss of flexibility and run the risk that the net would fail to catch some
forms of serious misconduct. To suggest
that the offence requires further definition would be to pursue a degree of
definition which is unattainable, having regard to the wide range of acts and
omissions which are capable of amounting to misconduct by a public officer in
or relating to his office. The offence
serves an important purpose in providing a criminal sanction against misconduct
by public officers.
92. The broad terms in which the offence is cast
are sufficient to enable the public officer to regulate his conduct. The elements of the offence, quite apart from
its title or description, alert the public officer to the risk that he runs by
engaging in misconduct and that is all that art. 39 of the Basic Law and art.
11(1) of the Bill require. The offence
targets misconduct as the relevant act or omission to be avoided, thereby
providing the necessary “guidance”, to use the term used by Gonthier J in the
Nova Scotia case. A public officer,
familiar with his powers and duties, should have no difficulty in appreciating
that neglecting to perform his duty with wilful intent and dishonestly,
corruptly and maliciously exercising his powers and discretions constitute
misconduct which is criminally culpable as already explained.
93. Mr Griffiths SC mounted a separate attack on
the Reg v. Ghosh test, invoking the criticism made of that test by the English
Law Commission. In Reg v. Ghosh [1982]
QB 1053, the question was whether the trial judge’s direction correctly
instructed the jury as to the word “dishonestly” in s.1 of the Theft Act,
1968. The Court of Appeal held that the
word described the state of mind and not the conduct of the accused and,
therefore, the test of dishonesty was subjective but the standard of honesty to
be applied was the “ordinary standards of reasonable and honest people” (at
1064). In the result, the jury should
have first considered whether the appellant had acted dishonestly by the
standards of ordinary and honest people.
94. It was that test that the trial judge applied
in the present case and it was the subject of the Law Commission’s criticism in
its Consultation Paper No. 155 “Legislating the Criminal Code – Fraud and
Deception”. In paras 5.11-5.18 of the
Paper, the Commission criticised the Ghosh test on the ground that it required
fact-finders to set a moral standard of honesty by making a semantic and moral
inquiry in circumstances where there is no single community norm or standard of
dishonesty. The standard in Reg v. Ghosh
is an objective standard. A similar
standard has been applied in other areas of the law without attracting adverse
comment (see, for example, Twinsectra Ltd v. Yardley [2002] 2 WLR 802). Granted the difficulty of ascertaining what
are the ordinary standards of reasonable and honest people, it is nonetheless a
task which is not so imprecise or vague as to violate the relevant requirements
of art. 39 of the Basic Law or of art. 11(1) in the Bill. Nor can it be characterized as an arbitrary
standard. A further point to be made in
relation to the Law Commission’s criticism is that, in framing standards to be
applied by tribunals of fact, the search for definition can be carried too
far. A higher degree of definition of
some standards – “reasonable” is in its various applications in both the civil
and the criminal law an example – is often unattainable.
95. If, contrary to the conclusion I have
reached, the offence were to be regarded as having been defined by Lord Widgery
CJ in the terms which have been the target of Mr Griffiths’ challenge, then the
case of imprecision would have been stronger.
Culpability of such a degree “that the misconduct impugned is calculated
to injure the public interest so as to call for condemnation and punishment”
might not provide an adequate “basis for legal debate and coherent judicial
interpretation” and where judicial interpretation is not possible the law is
constitutionally vague (R v. Canadian Pacific Ltd (1995) 99 CCC (3d) 97 at 140,
per Gonthier J). That, however, is not
the case on the conclusion I have reached.
96. This case is distinguishable from Reg v.
Withers [1975] AC 842 where it was held that the law knew no such generalised
offence as effecting a public mischief.
There the House of Lords concluded, despite the existence of a
considerable body of authority, that the so-called offence left too much to a
jury because it lacked sufficient and judicial cogency and precision and
because it was contrary to the spirit of the common law (see at 870 FG, per
Lord Simon of Glaisdale). Their
Lordships considered that, if they were to develop the law by creating a
general offence of public mischief they would be creating a new offence, this
being an undertaking that was impermissible (860 EF, per Viscount Dilhorne; 867
EF and 868 AB, per Lord Simon of Glaisdale; 877 GH, per Lord Kilbrandon, where
their Lordships followed the authority of Reg v. Knuller [1973] AC 435).
97. Hashman and Harrup v. United Kingdom (1999)
30 EHRR 241 is to be distinguished from the present case for somewhat similar
reasons. Conduct contra bonos mores
lacked any sufficient precision to enable it to serve as a standard or guide by
which people could regulate their conduct.
It was, to use an expression employed by Lamer CJC in R v. Morales
(1992) 77 CCC (3d) 91 at 101, no more than a “standardless sweep”.
98. Mr Griffiths SC made the valid point that, in
conformity with Reg v. Withers and Reg v. Knuller, it was not for this Court to
create a new offence as an answer to a perceived problem of imprecise definition
or accessibility. That said, it is well
established that, by employing accepted and traditional judicial techniques, a
court is entitled, indeed bound, to clarify the existing law where
clarification is needed so long as, in doing so, the court does not extend the
boundaries of criminal liability. To do
so would create retrospective criminal liability and offend the provision of
art. 12(1) of the Bill. The offence of
misconduct in public office, as I have explained it, is consistent with the
existing authorities. The explanation
amounts at most to a clarification which, even if it does not narrow the
offence, does not expand it.
99. In this case, no issue was raised as to the
meaning and scope of the expression “public office”. The appellant clearly fell within the
expression. Just how far it extends may
perhaps be a question for the future. On
the later authorities, the expression has been understood as having a wide application. See Henly v. Lyme Corp (1828) 5 Bing 91, 130
ER 995; R v. Whitaker [1914] 3 KB 1283; R v. Bowden [1995] 4 All ER 505.
Conclusion
100. The particulars given of the four charges and
the facts found by the trial judge bring this case within the offence as it has
been explained. The appellant was a
public officer. The acts and omissions
complained of took place in the course of that public office. His relevant duties and responsibilities,
especially in relation to conflicts of interest and the obligation not to
confer benefits on or favour relatives and friends were set out in the
Circular. His departures from his duties
and responsibilities were clearly established.
In relation to these departures, the trial judge found that the
appellant acted dishonestly, must have realised that what he was doing was
dishonest and concluded that the reason for his non-disclosure of his
connection with Onclever was “his desire to help and favour Onclever”. Indeed, the trial judge found that his
recommendation of Onclever for pre-qualification was “due to his hidden
connection to Onclever”. Accordingly,
his conduct was wilful in that he was aware of his responsibilities, and
realised that what he was doing was dishonest.
And his conduct was culpable, being without reasonable excuse or
justification and dishonest because his motive was to benefit and favour
Onclever.
101. In the result the appeal should be
dismissed.
Chief
Justice Li:
102. The Court unanimously dismisses the appeal.
(Andrew
Li)
(Kemal
Bokhary)
(Patrick
Chan)
Chief
Justice Permanent Judge Permanent Judge
(R A V
Ribeiro) (Sir Anthony Mason)
Permanent
Judge Non-Permanent Judge
Mr John
Griffiths, SC and Mr Andrew Bullett (instructed by Messrs P C Woo & Co.)
for the appellant
Mr
Michael Thomas, SC (instructed by the Department of Justice), Mr Michael
Blanchflower, SC, Mr Ian McWalters and Mr Gavin Shiu (of that Department) for
the respondent
如有以下情況，即屬干犯公職人員行為失當罪：
(1) 犯案者為公職人員；
(2) 在擔任公職或與擔任公職有關的情況期間；
(3) 藉作為或不作為，故意作出失當行為；例如故意疏忽職守或沒有履行職責；
(4) 沒有合理辯解或理由；及
(5) 考慮到有關公職和任職者的責任、他們所尋求達致的公共目標的重要性及偏離責任的性質和程度，而釐定有關的失當行為屬於嚴重而非微不足道。請參閱香港特別行政區 訴 岑國社 [2001] 3 HKLRD 399一案；香港特別行政區 訴 冼錦華 （2005） 8 HKCFAR
192一案。另請參閱香港特別行政區 訴 黃連基 [2012] 2
HKLRD 898一案，根據該案，公職人員的行為失當必須是與他為公眾利益而可行使的權力和職責有關。
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