DCCC515/2021

DCCC515/2021

A A B B DCCC 515/2021 C [2023] HKDC 1049 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 515 OF 2021 F F G ———————————— G HKSAR H H v I LAU WAI YEE MONITA I ———————————— J J K Before: His Honour Judge Tam in Court K Date: 28 July 2023 L L Present: Ms Lam Hiu Man Human, Senior Public Prosecutor, for M HKSAR M Mr Harris Graham A, Senior Counsel, leading Ms Lai Pui N N Ling Joyce, instructed by Haldanes, for the defendant O (Mr Tsoi YM Benson, absent, but he, together with Ms Lai O Pui Ling Joyce, instructed by Haldanes, acted for the P P defendant throughout the whole trial) Q Offence: Misconduct in Public Office (藉公職作出不當行為) Q R R ———————————————— S S REASONS FOR VERDICT T ———————————————— T U U V V  -2- A A B B 1. Defendant appeared before me charged with one charge of C Misconduct in Public Office, contrary to Common Law and punishable C under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. D D E 2. Particulars are that she, being the holder of a public office, E namely a lay member of The Medical Council of Hong Kong (“Council”), F F between 1 April 2017 and 23 January 2018, both dates inclusive, in Hong G Kong, in the course of or in relation to her public office, without reasonable G excuse or justification, willfully misconducted herself by: H H I (a) Disclosing to Pang Hung Cheong (“Pang”) the personal I particulars of Lee Soo Ghee (“Lee”) and the details of J J a complaint made by Lee with the Council against K Doctor Wong Hon Wai (“Dr Wong”); K (b) Causing Pang to arrange a meeting between Lee, Pang L L and herself on 26 May 2017 during which she solicited M a retainer from Lee to pursue a civil claim against Dr M Wong (“the Claim”); and N N (c) Accepting instructions via her firm of solicitors, O namely Fongs, from Lee to act for him in the Claim. O P P The law Q Q 3. The elements of the offence of Misconduct in Public Office R R as per Sir Anthony Mason NPJ’s reformulation in Sin Kam Wah v HKSAR S [2005] 8 HKCFAR 192 are:- S T T (a) The accused is a public official (Element 1); U U V V  -3- A A B B (b) In the course of or in relation to his public office C (Element 2); C (c) Willfully misconducts himself by act or omission D D (Element 3); E (d) Without reasonable excuse or justification (Element 4); E and F F (e) Where such misconduct is serious, not trivial, having G regard to the responsibilities of the office and the G office-holder, the importance of the public objects H H which they serve and the nature and extent of the I departure from those responsibilities (Element 5). I J J Prosecution case K K 4. The defendant was a Senior Consultant in Fongs, a firm of L L solicitors. She would occasionally act as a volunteer legal professional for M the Society for Community Organization (“SOCO”), an NGO. PW4 Pang, M also known as Tim, was a Community Organizer of SOCO. PW4 Pang’s N N duties included assisting victims of adverse medical incidents to seek O assistance from volunteered legal professionals for provision of O preliminary legal advice with regard to the possibility of filing civil claims P P against the relevant parties liable for adverse medical incidents. Q Q 5. In March 2013 and December 2016, SOCO (PW4 Pang) R R referred two patients of medical cases to the defendant for provision of S preliminary legal advice. The two patients complained to SOCO that Dr S Wong Hon Wai (“Dr Wong”), a specialist in Otorhinolaryngology, failed T T to explain or sufficiently explain to them about the risk of conducting U U V V  -4- A A B B surgery in the removal of nasal septum and conducted the surgery in an C inappropriate manner leading to the two patients’ suffering from Empty C Nose Syndrome (“ENS”). D D E 6. In April 2011, PW3 Lee underwent a surgery conducted by E Dr Wong to correct his deviated septum and to improve his breathing F F problems. After the surgery, PW3 Lee was suffering from high airflow and G nasal and throat dryness, leading to prolonged insomnia. In 2014, PW3 G Lee was diagnosed of ENS which was allegedly caused by the H H inappropriate manner in which Dr Wong performed the surgery. I I 7. On 3 June 2015, Lee filed a complaint with the Medical J J Council against Dr Wong for his professional misconduct. K K 8. The Medical Council later referred the complaint to the L L Preliminary Investigation Committee (“PIC”) for preliminary M investigations. Defendant was appointed by the Medical Council as the M only lay member of the PIC. On 11 April 2017, the complaint was first N N tabled for deliberation at a PIC meeting. About 7 to 10 days before the PIC O meeting, materials relating to the complaint including PW3 Lee’s mobile O phone number and email address, were given to the defendant and other P P PIC members for preparation of the meeting. Q Q 9. At the PIC meeting, the defendant declared she was R R representing another patient in taking civil action against Dr Wong and thus S recused herself. As there was insufficient quorum as a result, consideration S of PW3 Lee’s complaint was deferred to subsequent meetings. T T U U V V  -5- A A B B 10. In April 2017, the defendant called PW4 Pang and disclosed C PW3 Lee’s complaint to him. She asked PW4 Pang to contact PW3 Lee. C On 27 April 2017, the defendant also sent a WhatsApp message to PW4 D D Pang containing PW3 Lee’s contact details. E E 11. On 22 May 2017, PW4 Pang called PW3 Lee and introduced F F him to the services of SOCO. Through the intermediary of PW4 Pang, a G meeting was arranged for 26 May 2017 during which all three parties G attended at the offices of Fongs. H H I 12. It was the prosecution case that during this meeting, the I defendant solicited a retainer from PW3 Lee to pursue a civil claim against J J Dr Wong by touting (saying two other patients suffering from ENS had K engaged her to take civil action against Dr Wong, and if PW3 Lee did the K same, the chance of making a successful claim would be high). L L M 13. On or around mid-June 2017, PW3 decided to retain Fongs M and the defendant to represent him in an intended civil claim against Dr N N Wong. O O Defence case P P Q 14. Defendant elected to give evidence and called one character Q witness Dr Li Kwok Tung Donald and produced the witness statement of R R Prof Felice Lieh Mak under section 65B also for good character purpose. S S 15. As factual events, defence agreed that Particular (a) and T T Particular (c) did happen but disputed they were culpable misconduct. U U V V  -6- A A B B C 16. The defence case was that the 3-party meeting on 26 May C 2017 did happen but it was instigated by PW4 Pang; and it was not a case D D of the defendant causing PW4 Pang to arrange it. Nor did the defendant E tout for business at all during that meeting by whatever means. E F F Matters not in dispute G G 17. A lot of the prosecution case had been agreed in the form of H H Admitted Facts (P1) and a lot of PW4 Pang’s evidence had not been I challenged. I J J 18. Apart from the facts set out in P1, there was in fact a lot of K common evidence between PW4 Pang and the defendant. For this common K evidence I have no difficulty in accepting it represents the truth. Although L L some of PW1 Chow’s evidence was questioned in a small way for being M hearsay or unreliable because it was not her personal experience, much of M her evidence was repeated by PW2 Tse who was not cross-examined at all. N N In any event, those parts of PW1’s evidence do not form the main issue in O the trial. O P P 19. During the trial, a lot of WhatsApp messages and emails had Q been produced and they speak for themselves. They are not disputed by Q either side and in fact form the basis on which various witnesses of facts R R have been cross-examined. S S 20. Matters not in dispute include: T T U U V V  -7- A A B B (a) Defendant was a public official ie Element 1 of the C offence; C (b) Particular (a) of the Charge as facts without the defence D D conceding that it is culpable misconduct; and E (c) Particular (c) of the Charge as facts without the defence E conceding that it is culpable misconduct. F F G Issues in the case G H H 21. The issues in the case include:- I I (a) Whether Particular (b) of the Charge, as facts, J J happened; and K (b) Whether Particulars (a), (b), and (c) of the Charge, K individually, constitutes culpable misconduct in the L L sense that Elements 2, 3, 4 and 5 have been proved. M M Procedural history N N O 22. Prosecution called a total of 6 witnesses, namely PW1 Chow O Kwan Ying (Deputy Secretary of the Medical Council’s Secretariat P P (“DSMCS”)), PW2 Tse Suk Yee (Ex-DSMCS), PW3 Lee (Complainant), Q PW4 Pang (SOCO Community Organizer), PW5 Prof Lau Wan Yee Q (Chairman of the Medical Council), and PW6 Ms Heidi Chu, (Secretary R R General of the Law Society). S S 23. During the prosecution case, defence applied for exclusion of T T (a) parts of the intended evidence of PW5 Prof Lau and (b) the Solicitors’ U U V V  -8- A A B B Guide to Professional Conduct, on the ground of inadmissibility. After C hearing submissions from both sides, I ruled the application failed. C Reasons are included in Annex 1 to the Reasons for Verdict. D D E 24. After prosecution closed its case, defence made no half-time E submission. I ruled there was a prima-facie case. F F G 25. Defendant elected to give evidence as DW1 and called one G other witness DW2 Dr Li Kwok Tung Daniel mainly as a character witness. H H In addition, defence produced a witness statement of Prof Felice Lieh Mak I under section 65B in her capacity also as a character witness. I will treat I defence evidence in the same objective way that I treat all other evidence J J bearing squarely in mind that the burden of proof lies with the prosecution. K K My consideration L L M Directions to myself M N N 26. I remind myself the burden of proof rests with the prosecution O throughout the standard being one of beyond reasonable doubt. O P P 27. I bear firmly in mind the defendant is a person of clear record. Q What that means is that as compared with a person with a criminal record, Q the defendant is less likely to commit a crime and that what she said in and R R out of court is more likely to be credible. S S 28. I bear also in mind there is in this case unchallenged evidence T T of positive good character in the person of the defendant. Even PW4 Pang U U V V  -9- A A B B spoke highly of her. The prosecution’s submission in this regard is that C this is a case of a single fall from grace. C D D The facts E E 29. As spelt out previously, the defence does not challenge that F F Particulars (a) and (c) as facts took place. Indeed, in the Admitted Facts G (P1), paras 15, 21 and 22 recorded thus:- G H H “15. On 27 April 2017, at 4:02 pm, the Defendant sent Pang the following message via the application WhatsApp I (“WhatsApp”): I “Re Dr Wong Hon Wai: J J Lee Soo Ghee 李守義先生 Email [email protected] K Mobile 6779 6623” K “21. On or around mid-June 2017, Lee decided to retain Fongs L L and the Defendant to represent him in an intended civil claim against Dr Wong. A copy of the engagement letter dated 19 June M 2017 issued to Lee by Fongs and signed by Lee is now produced M and marked as Exhibit P8. N “22. On 26 June 2017, after Lee had paid $45,000 to Fongs as N costs on account (“the Payment”), the Defendant represented O Lee to file a civil claim against Dr Wong for compensation (“the O Claim”). A copy of the deposit slip confirming the Payment is now produced and marked as Exhibit P9 and the certified P translation of Exhibit P9 is now produced and marked as Exhibit P P9A.” Q Q 30. The common evidence of PW4 Pang and the defendant was R R that during the first phone call on such topic made by the defendant to PW4 S Pang on (or close to but before) 27 April 2017, the defendant disclosed the S details of a complaint made by someone (ie PW3 Lee) with the Medical T T Council against Dr Wong (ie Dr Wong Hon Wai). U U V V  - 10 - A A B B C 31. Hence, as facts, there is no dispute that Particulars (a) and (c) C of the Charge took place. D D E 32. As regards the facts within Particular (b) of the Charge, this is E a hotly contested issue in the trial. I have had regard to the submissions F F from both sides. There are two sub-issues here: although there was no G dispute there was a 3-party meeting which took place on 26 May 2017 at G the offices of Fongs, the defence disputed (i) that it was the defendant who H H caused PW4 Pang to arrange the meeting and (ii) that during the meeting I she solicited a retainer from PW3 Lee to pursue a civil claim against Dr I Wong. J J K 33. In regard to sub-issue (i), while it could fairly be said that but K for the defendant’s disclosure to PW4 Pang about PW3 Lee’s complaint to L L the Medical Council, the subsequent events including the convening of the M said meeting would not have taken place, one has to examine the evidence M very carefully to see if it could be said that the defendant caused PW4 Pang N N to arrange the said meeting. O O 34. PW4’s evidence on the topic as extracted from the P P prosecution’s written closing submissions is as follows:- Q Q “29. …… R R (o) On 27 April 2017 or on a day within a week before 27 S April 2017, PW4 received a call from the Defendant S when he was not in office; T (p) The Defendant told PW4 that, when handling a T complaint in a meeting of PIC, she noticed a complainant who was the third patient suffering from ENS after U U V V  - 11 - A A B having a surgery conducted by Dr WONG. She told PW4 B that the complainant felt very depressed, and the situation C described by the Defendant was as if ENS “ruined his C life”. The Defendant also noticed that the complainant’s case might have passed the 3-year limitation period. She D told PW4 she really wanted to assist the complainant’s D case and give legal assistance. In addition, she also wanted to see if SOCO could help the complainant. E E However, she thought that it was not convenient or appropriate for her to contact the complainant. As she did F not want to contact the complainant directly, she asked F PW4 if she could pass the contact method to PW4 for PW4 to contact the complainant; G G (q) Having been informed of the above, PW4 raised two H questions to the Defendant: H (i) Firstly, PW4 asked the Defendant if the I complainant found that it was not alright and I asked him about the details, how could he J explain? The Defendant replied to PW4 that J ‘perhaps someone found its way to contact PW4 or someone they didn’t know pass the contact K method to PW4’, and she would see whether she K would ask a colleague to pass the contact method to PW4 (‘PW4’s First Question’); L L (ii) Secondly, PW4 asked the Defendant that she M handled complainant in the Medical Council and M also represented the complainant in filing the claim, was there any conflict of interest in her N role? The Defendant replied to PW4 that if she is N a lawyer representing the patient (the O complainant), she could recuse herself from the O meeting and there was the same situation in previous file; P P (r) PW4 agreed to contact the complainant (PW3) because Q the case was the third case in which the same surgery was Q done by Dr WONG with the same kind of negligence, ie failure in reminding the patient about the risk of the R surgery, and the surgery might possibly be involved R technical problem. The existence of the third case made PW4 felt that there was a stronger need and consideration S S of public interest to arouse public awareness of the risk of the surgery by consideration of taking some public T action, for example, by holding press conference; T U U V V  - 12 - A A B (s) PW4 also considered that the Defendant’s relevant legal B experience and medical knowledge in the field of ENS C would be beneficial to the complainant’s legal claim C against Dr WONG; D (t) The duration of the phone call was about 10 minutes. D During the telephone conversation, the Defendant did not mention that the complainant was PW3;” (emphasis by E E underlining added) F F 35. The defendant’s evidence as extracted from the prosecution’s G written closing submissions is as follows:- G H H “41. …… I (nn) The Defendant called PW4 on 27 April 2017 and the I duration of the call was only around 2 minutes; J J (oo) The Defendant told PW4 that she came to know one more ENS case from the Medical Council. She thought this K patient was in a really bad situation and having serious K depression. The Defendant asked PW4 to see how he could help the patient. The Defendant further told PW4 L L that she would give him the patient’s information so that PW4 could contact PW3. PW4 replied ‘OK’ without M asking her any question or having any reservation about M contacting PW3 in such manner; N (pp) The Defendant recalled that she might have said to PW4 N it was not appropriate for her to contact PW3. If she did O say so, her mind was that PW4 was more suitable than O her to contact PW3 given PW4’s background and the resources of SOCO; P P (qq) The Defendant claimed that the sole purpose of her call Q was to ask PW4 help PW3 and during the call she had Q never mentioned to PW4 about the issue of limitation period; R R (rr) Not longer than 15 minutes after the phone call, the Defendant sent the WhatsApp message mentioned in S S paragraph 15 of the Admitted Facts (Exhibit P1) to PW4 on 27 April 2017 (see also Exhibit D16/133). The T message contained the name, email address and T telephone number of PW4 which the Defendant said she got from the documents she got for the PIC Meeting; U U V V  - 13 - A A B B (ss) In examination-in-chief, the Defendant said she knew C what she did (ie disclosing PW3’s information to PW4) C might contravene the Data Protection Principle and was not right that she ‘definitely would not do it again’; D D (tt) In cross-examination, the Defendant agreed that, by disclosing PW3’s information to PW4, she breached her E E duty to preserve confidentiality of the information. The Defendant also agreed that her disclose of PW3’s F information to PW4 without any consent or F authorization;” G G 36. A crucial difference on this topic between PW4 Pang’s H H evidence and the defendant’s evidence is the identity of the entity/ies who I was/were to help PW3 Lee. In PW4 Pang’s evidence, the helpers were I both SOCO/PW4 Pang and the defendant. In the defendant’s evidence, the J J helper was only SOCO/PW4 Pang. K K 37. If PW4 Pang’s evidence is correct, then I believe it could be L L said that, given the practice and understanding between PW4 Pang and the M defendant as regards distribution of work, the defendant did cause PW4 M Pang to arrange the said meeting. N N O 38. On the other hand, if the defendant’s evidence is or might be O correct, then it could not be said the defendant caused PW4 Pang to arrange P P the said meeting. Q Q 39. On this score, I have a doubt as to whether the defendant did R R say to PW4 Pang “she really wanted to assist the complainant’s case and S give legal assistance”. The reasons are as follows. S T T U U V V  - 14 - A A B B 40. In the written record of this first call by the defendant to PW4 C Pang, as recorded in para 6 of PW4 Pang’s witness statement dated 13 C November 2020 (read out in court and reproduced below), there is no D D mention at all of the defendant saying she wanted to assist the complainant E PW3 Lee by giving legal advice. The relevant part of the statement is E extracted from the defence’s written closing submissions thus:- F F G “58. …… G (2) The relevant parts of Mr Pang’s statement regarding the H 1st Phone Call is extracted hereinbelow for the Court’s H easy reference:- I I “6. One day in April 2017, I received a call from Ms Lau. She said that as a lay member of MCHK’s Preliminary J Investigation Committee (hereinafter called “PIC”), she J knew a complaint was filed with MCHK by Mr LEE Soo- ghee (English name: Francis) against Dr Wong for his K professional misconduct, which had caused LEE Soo- K ghee to suffer from Empty Nose Syndrome. Her role as a L lay member enabled her to obtain Lee Soo-ghee’s L personal particulars. At that time, Ms LAU expressed her empathy with LEE Soo-ghee, and thought that his case M was very similar to the situation of the two help-seekers M in Paragraphs 4 and 5 here in the above. However, in N view of her role as an MCHK lay member, Ms LAU N thought that it would be inappropriate for her to directly contact LEE Soo-ghee. Therefore, she wished that I O could contact and help LEE Soo-ghee as a SoCO O Community Organiser. I realised that LEE Soo-ghee was the third patient who I knew was suspected to be P P having Empty Nose Symptom after undergoing a nasal septum removal surgery performed by Dr WONG. As the Q number of such cases was on the rise, and Empty Nose Q Symptom could have detrimental effect on the patient’s daily life or even mental health I was eager to help them R protect their interests. I also wished that through media R reports about these cases, the public would know about S the suspected medical negligence of Dr WONG, and S people who were considering similar surgeries would know the revenant risks. Given Ms LAU’s experience in T handling cases related to Empty Nose Symptom, I T believed that having her meet LEE Soo-ghee and give him voluntary legal advice could help in gathering the U U V V  - 15 - A A B available information. This would facilitate her analysis B of the case and provision of assistance, which would in C turn benefit help-seekers suffering from Empty Nose C Symptom with regard to their compensation claims against Dr WONG. Therefore, I agreed to call LEE Soo- D ghee to see if he was willing to accept SoCO’s assistance D and seek voluntary legal advice.” (Emphasis and underline added). This was read to him in Court.” E E F 41. Seen in this light, it is possible that 6 years after the event, F PW4 Pang may have converted “his belief that the defendant could help” G G into “an assertion by the defendant that she wanted to help”. It is therefore H possible that it was PW4 Pang’s own idea to arrange the said meeting and H he sought the consent of both PW3 Lee and later the defendant in having I I the meeting set up. J J 42. An interim conclusion therefore is that I am not satisfied to K K the requite standard that it was the defendant that caused PW4 Pang to L arrange the said meeting. L M M 43. But more important in this context is sub-issue (ii), namely, N whether during the meeting the defendant solicited a retainer from PW3 N Lee to pursue a civil claim against Dr Wong. The only clear evidence of O O this came from PW3 Lee. I am using a summary of the relevant part of the P evidence contained in the prosecution’s written closing submissions:- P Q Q “12. …… R R (t) On 26 May 2017, PW3, PW4 and the Defendant met in the small conference room of FONGS’ office in Central; S S (u) PW3 brought a file of the relevant documents relating to his case (Exhibit P16); T T U U V V  - 16 - A A B (v) The Defendant told PW3 that apart from being a lawyer B of FONGS, she was also a panel member of the Medical C Council. Hence, the Defendant knew that PW3 was C lodging a complaint against Dr WONG with the Medical Council and obtained PW3’s information from the D Medical Council; D (w) The Defendant told PW3 that as she was a Council E E Member, she thought it was not convenient for her to contact PW3 directly and, as a result, she passed PW3’s F contact details to PW4; F (x) The Defendant also told PW3 that there were 3 other G G patients suffering from ENS and 2 of them were patients of Dr WONG. The said two patients had obtained legal H aid to engage the Defendant as their legal representative H in their civil lawsuit against Dr WONG; I (y) PW3 told the Defendant and PW4 about the details of his I case, including that (i) Dr WONG suggested PW3 to J undergo the Surgery upon examination by endoscopic J images and when there was no improvement after prescribing PW3 with medicine for one week; (ii) Dr K WONG only appeared moment before the operation; and K (iii) Dr WONG failed to inform PW3 about the risk of having ENS before the Surgery; L L (z) After that, the Defendant told PW3 that his chance of M winning a claim against Dr WONG was high as Dr M WONG only took a week to assess PW3’s conditions before recommending the Surgery; N N (aa) The Defendant also explained to PW3 about the 3-year O limitation period. The Defendant said that according to O the date of the operation, which was conducted in 2011, it should be out of the 3-year limitation period. However, P according to Dr HUNG who confirmed the diagnosis that P PW3 suffered from ENS in around July 2014, it should Q be within the time limit for PW3 to initiate a litigation Q against Dr WONG; R (bb) After calculating a ‘3-year timetable’, the Defendant told R PW3, if he was to file a claim against Dr WONG, he had to be aware of the time and she would give him a S S quotation (which PW3 understood to mean the quotation relating the Defendant’s legal services for which fee T would be charged). PW3 replied that he would wait for T the quotation; U U V V  - 17 - A A B (cc) The Defendant told PW3 that he was not required to B apply for legal aid after he had mentioned to the C Defendant his financial background; C (dd) PW3 told the Defendant about his religious belief which D could help him to cope with ENS and his ‘forgive and D forget’ attitude towards Dr WONG; E E (ee) PW3 did not hear the Defendant telling him that, based on her knowledge, most of the ENS sufferers also F suffered from depression and that, if PW3 needed to, he F might seek treatment for depression; G G (ff) Although the Defendant never directly said she would represent the Defendant in the claim against Dr WONG, H what the Defendant did and said in the meeting amounted H to indirectly persuading PW3 to engage the Defendant; I (gg) PW4 and the Defendant gave him their business name I cards (Exhibit P11) before conclusion of the meeting; J J (hh) PW3 left the file that he brought along to the meeting with the Defendant after the meeting; K K (ii) PW3 deemed PW4 as a facilitator for fixing the First Meeting. He did not think that the discussion in the First L L Meeting was a SOCO matter; M (jj) PW3 did not think that he would have to pay for the First M Meeting since there was no mentioning of any charge or fee for it; N N (kk) PW3’s mind had been changed from ‘forgive and forget’ O to that he should ‘stand up and seek justice’ after the O Defendant told him that there were 2 other victims who were suffering from ENS because of Dr WONG;” P (emphasis by underlining added) P Q Q 44. PW4 Pang’s evidence on this topic undermined PW3 Lee’s R evidence somewhat. A summary of PW4 Pang’s evidence taken from the R prosecution’s written closing submissions is reproduced below:- S S T “29. …… T U U V V  - 18 - A A B (dd) On 26 May 2017, PW3, PW4 and the Defendant met in a B small conference room of the office of FONGS; C C (ee) At the outset, the Defendant and PW3 exchanged their respectively business name cards; D D (ff) Afterwards, PW4 introduced to PW3 that the Defendant was a lay member of the Medical Council. When the E E Defendant handling complaints in the Medical Council, she noticed PW3’s case and she thought that it was F worthy to assist PW3. Hence, the Defendant had F provided PW3’s contact particulars for PW4 to contact PW3. PW4 told PW3 not to mind that they contacted G G PW3 in such manner; H (gg) The Defendant said if someone knew that such means of H contact was used to contact PW3 would make her in trouble. She said, if civil claim can be proceeded with her I assistance, PW3 could treat it as if it was PW3 who I contacted PW4 first, and it was PW4 who then referred J PW3 to the Defendant, and it was under such J circumstances that the First Meeting was arranged (‘Defendant’s Request 1’). PW4 recalled that PW3 did K not disagree to the Defendant’s Request 1; K (hh) During the meeting, the case of PW3 was discussed and L L the 3-year limitation period issued had been raised. The Defendant mentioned that there is a possibility that 3- M year limitation period of the case could be expired, and M decision has to be made whether PW3 would file the civil claim; N N (ii) There was discussion of filing a civil case. But PW4 had O forgotten whether it was he or the Defendant who told O PW3 that if PW3 decided to take civil action and if he could not apply legal aid, PW3 could consider engaging P the Defendant to handle. At the time, PW3 still had not P made up his mind to engage the Defendant as his lawyer Q to handle his case; Q (jj) During the meeting, PW4 had informed PW3 of his right R to apply for legal aid. But given the business name card R of PW3 showing that PW3 was holding a senior post in a large-scaled beauty salon company, PW4 told PW3 that S S in view of PW3’s financial resources, there would be no chance for PW3 to apply for legal aid; T T U U V V  - 19 - A A B (kk) During the meeting, PW3 b[r]ought the documents B relating to his ENS case and the Defendant should have C read those documents (佢應該都係有睇過); C (ll) PW4 recalled that the Defendant might have analyzed the D case. However, he was not sure whether the Defendant D did in fact advise on the merit of PW3’s case or PW3’s E chance of success; E (mm) During the cross examination, PW4 stated it is possible F (meaning he has some recollection about it but not sure) F that: G G (i) At the beginning of the meeting, the Defendant might have told PW3 that she came across PW3’s H case in the Medical Council and passed the H information of PW3 to PW4 for contact, and then asked PW3 whether PW3 thought there is a I I problem. At that time, it is possible that PW3 replied “no problem”; J J (ii) It is possible that the Defendant had told PW3 if PW3 thought that there is problem, they would K stop the meeting; K L (iii) It is possible that the Defendant had said to PW3 L that he could have a treatment, if needed, in respect of the depression; and M M (iv) It is possible that PW3 held on to the documents he brought to the meeting rather than flipping N N through the documents as he orally told his story to PW4 and the Defendant; O O (nn) PW4 recalled that the Defendant might have analyzed the case. However, he was not sure whether the Defendant P did in fact advise on the merit of PW3’s case or PW3’s P chance of success; Q Q (oo) At the conclusion of the meeting, PW3 handed over the documents, which was taken by him to the meeting and R related to his case, to the Defendant. Afterwards, PW4 R had kept a copy of those documents (Exhibit P16) as records; S S (pp) During the meeting, both PW4 and the Defendant had T taken notes. PW4 confirmed that Exhibit P15 was the T notes taken by him in the meeting; U U V V  - 20 - A A B (qq) By reference to his notes, PW4 stated that the issue B regarding timing of holding press conference had been C mentioned. Moreover, PW3 did mention to them about C the reason of conducting the surgery (ie ‘cannot breathe smoothy’), the impacts of him (ie ‘lost of concentration D and memory’) and his suffering from depression; D (rr) PW3 told the Defendant and PW4 that he had strong E E religious belief, which could help him to deal with depression; F F (ss) The duration of the meeting was about 1.5 hours; G G (tt) PW3 was not required to pay any fee for the meeting;” (emphasis by underlining added) H H 45. It is PW4 Pang’s evidence that it was he who did the initial I I introduction. It is also his evidence that it was he that advised PW3 Lee J that the latter would have little chance of securing legal aid given his J financial background. Overall, it would appear that much of what PW3 K K Lee attributed to the defendant during that meeting was, according to PW4 L Pang, actually done by the latter. L M M 46. However, the most important aspects of PW4 Pang’s evidence N are (a) there was no mentioning of any quotation that was forthcoming N from the defendant to PW3 Lee; and (b) PW4 Pang was not sure whether O O the defendant did in fact advise on the merit of PW3 Lee’s case or his P chance of success. P Q Q 47. No doubt, the defendant in the witness box denied saying R R anything about quotation or chance of success during this meeting on 26 S May 2017. S T T U U V V  - 21 - A A B B 48. Should I accept PW3 Lee’s evidence about the defendant’s C promise to give a quotation and the defendant’s saying he had a high C chance of success in the claim against Dr Wong? These pieces of evidence, D D if accepted, are, so says the prosecution, indicia of the defendant’s E solicitation of a retainer from PW3 Lee to pursue a civil claim against Dr E Wong. Should I accept these pieces of evidence despite the undermining F F of the same by PW4 Pang’s evidence in one way or the other, and in light G of the following episodes of events which happened shortly after the G meeting on 26 May 2017, a Friday? H H I 49. The events started with a WhatsApp message sent by PW3 I Lee to the defendant one week after the meeting (from D7A): J J K K L L M M N N O 50. On the face of it, by PW3 Lee asking “when”, and not O “whether”, it points to the direction that the subject of quotation was indeed P P raised in the meeting of 26 May 2017. However, for some reason, the Q defendant never responded to this WhatsApp message. Q R R 51. With no response from the defendant, PW3 Lee turned to S PW4 Pang with the following WhatsApp message sent on the same day S and he got a reply too (from D6A): T T U U V V  - 22 - A A B B C C D D Translation: E E F “Hi Tim, since the lawyer, Ms Lau, didn’t reply, (I) wonder if F she would follow up on my case? G I will get back to you later after asking Ms Lau” G H 52. Later the same day, PW3 Lee sent another WhatsApp H message to the defendant (from D7A): I I J J K K L L M M N 53. The defendant replied to PW3 Lee on the next day, following N which there was a return-reply (from D7A): O O P P Q Q R R S S T T U U V V  - 23 - A A B B C 54. This series of 3 WhatsApp messages between PW3 Lee and C the defendant could either mean there was a misunderstanding of D D communications between the two of them during the meeting of 26 May E 2017 or there was an attempt by the defendant to avoid a written record of E her intention to tout as per the prosecution case. Either is possible. F F G 55. However, what is clear from the WhatsApp messages is that G the 3-year limitation period had indeed been discussed at the meeting on H H 26 May 2017 and that it could expire in 2 months’ time, assuming I everything else such as matters of proof would be in order. A second thing I which was also clear is that it was PW3 Lee who was under pressure of J J time, and not the defendant. K K 56. There is also the strange and unexplained factor that PW3 Lee L L could not remember anything about a second 3-party meeting of 15 June M 2017 at the offices of Fongs during which, according to PW4 Pang’s and M the defendant’s testimonies, PW3 Lee decided to engage the defendant as N N a paid lawyer. O O 57. Everything considered, I consider that as regards sub-issue P P (ii), namely, whether during the meeting of 26 May 2017 the defendant Q solicited a retainer from PW3 Lee to pursue a civil claim against Dr Wong, Q I cannot safely rely on PW3 Lee’s evidence. R R S 58. What that effectively means is, I do not find that Particular (b) S of the Charge has been proved. T T U U V V  - 24 - A A B B 59. But that is of course not the end of the story. This is because C Particulars (a) and (c), as facts in themselves, are undisputed and have been C proved to the required standard. It is also clear but for the taking place of D D the facts of Particular (a), the facts of Particular (c) would not have E happened. One could without embarrassment say that the facts of E Particular (a) led to the facts of Particular (c), albeit through a circuitous F F route1; and they were close in time to one another, within no more than 8 G weeks. There was a clear causal relationship between the two. G H H 60. The next topic I will need to examine carefully is whether the I defendant’s evidence of why she disclosed to PW4 Pang was or might be I true. J J K 61. In this respect, I will reproduce the relevant part of her K evidence as summarized in the prosecution’s written closing submissions L L below:- M M “41. …… N N The PIC Meeting on 11 April 2017 O O (x) The Defendant did not read Exhibit P5 received by her on 5 April 2017 before attending the PIC Meeting; P P (y) In the meeting, when the Defendant knew of LEE’s Complaint against Dr WONG (Case No. 20), the Q Defendant declared that she was representing another Q patient against Dr WONG and thus recused herself from R deliberation of LEE’s Complaint; R (z) In her examination in chief, the Defendant said when the S chairman of the PIC said ‘the next case is Dr WONG’s S case’ (下一單係黃醫生), the Defendant saw the full T T 1 This is proved not least by undisputed WhatsApp messages and the common evidence of PW4 Pang and the defendant. U U V V  - 25 - A A B name of Dr WONG and could confirm it was the Dr B WONG she was dealing with in another case, she made C the declaration and recused herself; C (aa) During her cross-examination, the Defendant changed D her evidence and said she would check further if Dr D WONG was an ENT doctor before making declaration and recusing herself. When the Judge asked the E E Defendant how did she know Dr WONG was the Dr WONG she was dealing with in two other cases, the F Defendant said she recognised Dr WONG’s address from F the letter to Dr WONG from the Medical Council (see Exhibit P5/8); G G (bb) Not only that, when the Defendant was cross-examined H on why she continued to read Exhibit P5 (her evidence H was that she had read pages 1-6 of Exhibit P5 (see Exhibit P5/8-13) in the PIC Meeting) knowing she should have I nothing to do with LEE’s Complaint anymore upon her I recusal, the Defendant changed her evidence yet again J and said she had to read those pages to confirm whether J Dr WONG was the Dr WONG she was dealing with in two other cases; K K (cc) When it was put to the Defendant that, at the time of the PIC Meeting, after the Defendant’s recusal, the L L Defendant had nothing to do with LEE’s Complaint and should no longer be involved in it anymore, the M Defendant was evasive and finally confirmed she should M not be involved in LEE’s Complaint anymore as a lay Council Member. When asked whether she had any role N other than a lay Council Member at the time, the N Defendant gave an even more illogical and evasive O answer which she retracted immediately upon realising it O would harm her case (that she never thought of representing PW3 as a lawyer in his claim against Dr P WONG): ‘I did not have any other role, the only P possibility is that I was a lawyer…sorry, no’ (我冇其他 Q 角色，唯一可能就係，我係一個律師…sorry，我個 Q 答案係冇); R R (dd) The Defendant insisted that, despite having gone through the first 6 pages of Exhibit P5, she did not pay attention S and was not aware of the date of the Surgery; S (ee) The Defendant agreed that Exhibit P5 had nothing to do T with her after her recusal and its sole purpose was for the T U U V V  - 26 - A A B Defendant to consider LEE’s Complaint as a lay Council B Member of the PIC; C C (ff) After the PIC Meeting, the Defendant took Exhibit P5 home along and did not return it to the Medical Council D and she said it was a ‘normal practice’ for her to do so; D The Defendant’s ‘reason’ for reading Exhibit P5 at home E E (gg) A few days after the PIC Meeting, the Defendant F received the psychiatrist’s consultation notes about F Patient WONG which said that Patient WONG was having suicidal thought. The Defendant said she recalled G G seeing something similar ( 類 似 呢 方 面 嘅 講 法 ) in Exhibit P5 and therefore she took Exhibit P5 out to have H a look; H (hh) The Defendant was cross-examined about Exhibit P5 did I I not contain anything that would make her feel that PW3 had suicidal thought and that her excuse for taking out J Exhibit P5 and read it was a lie. In this connection, when J she was asked which part of Exhibit P5 would make her feel that PW3 was also having suicidal thought, the K Defendant said page 46 of Exhibit P5 (ie Exhibit P5/53), K in particular where PW3 said ‘I have heard people dying L from lingering illness bought on by ENS and I felt really L scared although I tried to be positive in life!’ and page 5 of Exhibit P5 (ie Exhibit P5/13) which showed to the M Defendant that the symptoms suffered by PW3 was M similar to those suffered by Patient WONG; N N The Defendant reading of Exhibit P5 at home O (ii) The Defendant claimed, from reading the O correspondence (ie PW3’s complaint letter and the email correspondence from PW3 to the Medical Council) in P Exhibit P5 at home, she felt that PW3 was probably P suffering from very serious depression and had suicidal Q thought; Q (jj) From reading page 6 of Exhibit P5 (ie Exhibit P5/13), the R Defendant came to know that ‘an ENS patient killed a R doctor’ and ‘an ENS patient took his own life’ which made her very worried; S S (kk) The Defendant did not read the medical records in T Exhibit P5 in details as it was not her concern but she T conducted online research by using ‘ENS’ and ‘suicide’ as the search words and saw online materials (Exhibit U U V V  - 27 - A A B D19) which made her ‘very scared and very worried B about ENS patients’; C C (ll) In respect of PW3’s 4 requests set out at the end of his complaint letter dated 3 June 2015 (Exhibit P5/13), the D Defendant said she thought SOCO could help PW3 with D them; E E (mm) The Defendant claimed that she did not pay attention and was not aware of the date of the Surgery; F F Telephone conversation between the Defendant and PW4 and the WhatsApp message sent by the Defendant to PW4 on 27 April G G 2017 (see also paragraphs 15 and 16 of the Admitted Facts (Exhibit P1)) H H (nn) The Defendant called PW4 on 27 April 2017 and the duration of the call was only around 2 minutes; I I (oo) The Defendant told PW4 that she came to know one more J ENS case from the Medical Council. She thought this J patient was in a really bad situation and having serious depression. The Defendant asked PW4 to see how he K could help the patient. The Defendant further told PW4 K that she would give him the patient’s information so that PW4 could contact PW3. PW4 replied ‘OK’ without L L asking her any question or having any reservation about contacting PW3 in such manner;” M M 62. I have taken note of all the demurrers that have been levelled N N by the prosecution against the defendant’s above-cited evidence summary. O I am of the view that what the defendant testified about the reason why she O read again P5 at home, this time in more detail, may be true: ie she might P P possibly have read the psychiatrist’s consultation notes about Patient Wong Q and that might have led her to read P5 at home in closer detail. Q R R 63. For whatever the reason it was that she came to read P5, I am S satisfied beyond a reasonable doubt that she did read P5 in more detail S while at home. T T U U V V  - 28 - A A B B 64. There is one aspect of the defendant’s evidence which has not C been summarized by the prosecution; and that is after the defendant had C gone through in some detail P5 at home, and before she called PW4 Pang D D to make the first disclosure, she went about doing some online research on E “ENS” and “suicide”. The following extract is taken from the defence E written closing submissions to fill this gap:- F F G “38. The Court will recall that around this time, Ms Lau G received Mr Wong’s medical records and medical notes which referred to his suicidal thoughts (Day 9, 9:54 am). One must H remember that at this stage, Ms Lau only has encountered very H few ENS cases. There was nothing extraordinary that Ms Lau, having seen Mr Wong’s medical notes, related what she saw to I I other ENS cases. This was when she related it to Mr Lee’s case as that was, by happenstance, another ENS case that she has J encountered (Day 9, 10:59 am). J 39. It was because of this connection she made the decision K to look into Mr Lee’s file (Day 9, 10:58 am). K L 40. Instead, what she saw in the file was “rare”, since it L contained a full two page complaint letter from Mr Lee addressed to the chairman of PIC (Day 9, 11:05 am) and she had M never seen such kind of complaint letter before. M N 41. The Court will recall the following documents in the file, N starting with the contents of the letter [Exh.P4/p.3-4] as extracted hereinbelow:- O O P P … Q Q R R S S T T U U V V  - 29 - A A B B 42. … C C 43. … D 44. Instead, what she saw in the file were words of D depression / desperation from Mr Lee, for example the email from Mr Lee to Dr Wong which was forwarded to MC on 3/3/15 E E [Exh.P5/p.52-53]:- F F G G H H I 45. In particular, the email from Mr Lee to MC on 30/4/15 I [Exh.P5/p.55] referred to the case of Brett Helling’s suicide and also the “kill the doctors” articles. J J K K L L M M 46. And also the email from Mr Lee to MC on 1/6/15 N [Exh.P5/p.56]:- N O O P P Q Q R R 47. At that time, Ms Lau were unaware of these death and S S killing. So she searched online and found the articles (shown below) – anyone looking at them would be shocked. T T 48. To Ms Lau’s mind: “First of all, I felt the wordings this complaint used was very strong. Same time, the depression that U U V V  - 30 - A A B he had probably very serious. And by looking here, I found that B mainly he had 4 requests. 2 things I didn't know before, the ENS C patient killed the doctor, and also one committing suicide. The C whole letter made me very worried.” (Day 9, 11:23 am). It must be remembered that this was the time when she was dealing with D Mr Wong’s case, the depression, the killing, the suicide – all fits D – and would clearly be matters going through her mind at this very point in time. E E A7. Ms Lau’s online research after coming across Mr Lee’s F case. F 49. There were numerous articles and comments on the G G internet which discussed ENS sufferers committing or wanting to commit suicide. In this regard, Ms Lau’s evidence is supported H by [Exh.P19A-C]. H 50. For example [Exh.P19A] – the “kill the doctors” article I is truly disturbing. I J J K K L L M M N N … O O P P Q Q 51. Exh.19C is just one example of an online forum that R contained hundreds of comments relating to suicide or suicidal R thoughts caused by ENS running from 2009 to 2019. S S T T U U V V  - 31 - A A B 52. The Court will also recall the very upsetting case of Brett B Helling’s suicide. When parts of that article was read to Ms Lau C in Court, she still had tears in her eyes. These were emotions that C anyone reading such article would encounter, and would have strongly influenced Ms Lau’s actions. The Court will recall the D extracts:- [Exh.P19D] D E E F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V  - 32 - A A B 53. This was not the first time she read the article. But the B impact it had on her (as a mother) is clearly deep. Ms Lau was C “Very scared and very worried about ENS patients, including C this complainant Mr Lee because of his depression seems to be very serious. In his letter, he mentioned that he had depression D every day and it is aggravating day by day.” (Day 9, 12:21 pm). D But to her mind, PIC was unable to assist Mr Lee in his demands. On the other hand, SOCO was able to help him at least on 3 of E E them (Day 9, 12:51 pm). She was anxious, and SOCO and Mr Pang was the only person Ms Lau knew who might be able to F help him (Day 9, 12:59 pm). Mr Pang had arranged for interview F for ENS sufferers before to raise public awareness and he had a big network of doctors and social workers. To Ms Lau’s mind, it G G made sense for her to get in touch with SOCO about Mr Lee.” H H 65. The defence submitted that it was after all of the above and in I such context that the defendant made the decision to call PW4 Pang (the I disclosure call) and sent the 1st text (the disclosure WhatsApp message) to J J PW4 Pang (both on 27 April 2017, according to the defendant). K K 66. I regard it as possible those were the reasons why the L L defendant disclosed to PW4 Pang in the way she did. M M 67. Next I will have to apply the law on to the facts as I found N N them to be. O O 68. As previously noted, there are 5 elements in the offence of P P Misconduct of Public Office. I shall deal with them one by one. Q Q Element 1: the accused is a public official R R S 69. In HKSAR v Siao Chi Yung, Weslie and Others [2023] 1 S HKLRD 653, Wong J referred to HKSAR v Wong Lin Kay [2012] 15 T T HKCFAR 185 and said: U U V V  - 33 - A A B B “90. The Court of Final Appeal pointed out: It is often out of C C focus and risky to isolate and independently consider whether the accused is a public official, or whether the accused is a public D official and whether his conduct constitutes “misconduct” as two D separate issues. E 91. Under this premise, Lord Millet pointed out: In fact, E there is only one question: Did the accused person’s conduct F involve abusing the power, duties, or responsibilities that the F person had been entrusted with and must exercise in the public interest? G G 92. Ribeiro PJ of the Court of Final Appeal, also pointed out that the essence of the offence of “misconduct in public office” H H is in the abuse of power. When deciding whether a person is a “public official”, the correct approach is to examine whether I the accused has been delegated powers, discretions or duties I based on the public interest, and then decide whether and how the alleged misconduct involves the abuse of such J J powers or discretion, etc.” (footnote omitted and emphasis added) K K 70. I note that in this case, there has never been any dispute that L L the defendant was a public official. M M 71. According to paras 1-5 of the Admitted Facts (P1) and the N N Medical Registration Ordinance, Cap 161 (“MRO”), that operated at the O time: O P P (i) The Medical Council is an independent statutory body Q established by MRO and its major functions include Q handling complaints lodged by members of the public. R R At all material times, the Medical Council comprised S total of 28 Council Members, 4 of whom were lay S members appointed by the Secretary for Food and T T Health with powers delegated by the Chief Executive. U U V V  - 34 - A A B B C (ii) Pursuant to section 20BA(2) the MRO, the Medical C Council may establish a PIC to make preliminary D D investigations into complaints lodged with the Medical E Council. According to section 20T of the MRO, a PIC E has the following functions: (a) to make preliminary F F investigations into complaints or information touching G any matter that may be inquired into by an inquiry panel G or heard by the Health Committee and to give advice H H on the matter to any registered medical practitioner; (b) I to recommendations to the Medical Council for the I holding of an inquiry under section 21 of the MRO; (c) J J to make recommendations to the Health Committee of K the Medical Council for conducting a hearing; and (d) K to make preliminary investigations upon a referral by L L the Education and Accreditation Committee of the M Medical Council. M N N (iii) At all material times, a PIC comprised 7 members, 3 of O whom being Council Members and 4 non-Council O Members. Of the 3 Council Members, 1 is chosen from P P the 4 lay Council Members. The quorum for a PIC Q meeting was 3 and at least 1 of them should be the lay Q Council Member. R R S (iv) Between 24 January 2012 and 23 January 2015, the S defendant was appointed as a lay member of the T T Medical Council by the Secretary for Food and Health U U V V  - 35 - A A B B under the powers conferred on the Chief Executive by C section 3(2)(g) of the MRO (see also P2); and C D D (v) Between 24 January 2015 and 23 January 2018, the E defendant was re-appointed as a lay member of the E Medical Council by the Secretary for Food and Health F F under the powers conferred on the Chief Executive by G section 3(2)(g) of the MRO (see also P3). G H H 72. The purpose of having lay Council members in the Medical I Council is to enhance public accountability and credibility of the Medical I Council in discharging its self-regulatory function to safeguard public J J interest (see paragraph 11 of LC Paper No CB(2) 1075/17-18 Report of the K Bills Committee on Medical Registration (Amendment) Bill 2017). K L L 73. It is clear that not only was the defendant a public official, she M played an important role as a lay Council Member of the Medical Council. M N N Element 2: in the course of or in relation to his public office O O 74. In Sin Kam Wah, supra, the Court of Final Appeal held that: P P Q “47. … To constitute the offence of misconduct in public Q office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, R R misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a S relationship with his public office as to bring that office into S disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. …” (emphasis added) T T U U V V  - 36 - A A B B 75. Further, in HKSAR v Hui Rafael Junior & Others [2017] 20 C HKCFAR 264, the Court of Final Appeal held that: C D D “47. For behaviour to qualify as relevant misconduct it may, but need not, involve a contravention of a statute. It E must, however, have the necessary link to official powers, E duties or responsibilities. Yet, not every breach of the law by a person when he or she is a public official is in the course of F or in relation to the office held. In Sin Kam Wah v HKSAR F the relevant conduct was not in the performance of the police G officer’s duties, but was found to have such a relation with G his public office as to bring that office into disrepute. In R v Quach Redlich JA, with whom the other members of the H Victorian Court of Appeal concurred, approved Professor Finn’s H statement that “the kernel of the offence is that an officer, having been entrusted with powers and duties for the public I I benefit, has in some way abused them, or has abused his official position”, and said: J J “In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty K or function of the office. Certain responsibilities of the K office will attach to the officer whether or not the L officer is acting in the course of that office. Where the L misconduct does not occur during the performance of a function or duty of the office, the offence may be M made out where the misconduct is inconsistent with M those responsibilities. It may be connected to a duty N already performed or to one yet to be performed or it N may relate to the responsibilities of the office in some other way. The misconduct must be incompatible O with the proper discharge of the responsibilities of the O office so as to amount to a breach of the confidence which the public has placed in the office, thus giving P P it its public and criminal character.”” (footnote omitted and emphasis added) Q Q 76. In this respect, the prosecution submitted in their written R R closing submissions:- S S “57. In the present case, there is no dispute that the Defendant T obtained the personal particulars of PW3 and the details of the T Complaint by virtue of her public office as a Council Member and disclosed them to PW4 without prior consent of PW3 or the U U V V  - 37 - A A B Medical Council. In making the Disclosure, the Defendant B abused her official position and what she did was clearly C inconsistent with her responsibilities to protect personal data C of complainants and preserve confidentiality of information entrusted with her by the Medical Council. D D 58. It is respectfully submitted that the Disclosure is a misconduct of a serious nature on its own. However, the E E Defendant did more than just that. The Defendant also caused PW4 to (a) contact PW3 using the information she obtained by F virtue of her public office and disclosed in breach of her public F duty and (b) … after the First Meeting with PW3 which was arranged using the Information, the Defendant went on to accept G G instructions via FONGS and became a paid legal representative to act for PW3, a ENS suffering client she would not have known H of but for her public office as a Council Member, in the Claim. H There is no doubt that the Defendant’s misconduct had the necessary link to her official powers, duties or I responsibilities as a Council Member and would bring her I public office into disrepute.” (emphasis supplied) J J 77. Without at this stage making a decision as to whether the K K disclosure is a misconduct of a serious nature on its own, I accept the L disclosure is a misconduct which had the necessary link to her official L powers, duties or responsibilities, and had a relevant relationship with her M M public office. N N 78. Indeed, in relation to the disclosure, the defence has not O O argued that it did not have such a link or such a relationship with her official P powers, duties, responsibilities or her public office, as the case may be. P Q Q 79. As regards whether the disclosure alone will bring her public R office into disrepute, I will leave that analysis until I reach Element 5, R namely, seriousness, below. S S T 80. In relation to Particular (c) of the Charge, the issue is more T complex. It is clear from the Charge that prosecution pleaded Particulars U U V V  - 38 - A A B B (a) and (c) as individual acts of misconduct (disclosure and acceptance C respectively). Defence on the other hand unilaterally attributed to the C prosecution that only Particular (a) was a “conduct” and that Particular (c) D D was an underlying purpose (see para 175 of defence’s written closing E submissions). E F F 81. It might be the case that the prosecution at one time conceded G that if only Particular (b) or (c) was proved without proof of Particular (a), G then the offence would not be made out. But that was done in the context H H of two surrounding factors. First, there was no dispute that, as facts, I Particular (a) had taken place. Second, in the factual matrix of this case, I Particular (a) was an intermediate step through which Particular (c) J J occurred, although one may suppose, if set in an absolute vacuum, K Particular (c), as facts, could still happen without the happening of K Particular (a), ie without the disclosure to PW4 Pang, and his subsequent L L participation as an innocent agent in the accomplishment of Particular (c). M This hypothetical scenario could happen, say, by the defendant directly M contacting PW3 Lee and accepting instructions to act for him in the civil N N claim. But that is not what happened here. O O 82. Whatever may have been the position in relation to the status P P of Particular (c) of the Charge, whether a “conduct” or an “underlying Q purpose”, I believe the defence will still argue along the line of para 177 of Q their written closing submissions. That is, “if the [defendant] never had R R the intention [to tout for business] when she disclosed the information, then S whatever may have occurred subsequently (ie, after the disclosure of the S information) as a happenstance cannot retrospectively supply the mens rea T T or seriousness of the act of disclosure. The matter [may] be tested this way, U U V V  - 39 - A A B B assuming the facts of this case was that [the defendant], having come across C Mr Lee’s case, got in touch with SOCO to assist Mr Lee. SOCO arranged C a meeting, and thereafter, [the defendant] held numerous meetings with Mr D D Lee and assisted him completely free of charge as a SOCO help seeker for E the next 5 years. It is difficult to see how [the defendant]’s conduct could E be regarded as sufficiently serious or calculated to harm public interest to F F amount to misconduct. The fact that 5 years, Mr Lee suddenly decided to G engage [the defendant] officially as his lawyer would not retrospective[ly] G alter what occurred before. The extent of the “time gap” (ie the gap H H between disclosure of information and formal engagement) in this respect I is irrelevant, as long as at the time of disclosure [the defendant] did not I have any improper underlying purpose in mind, there is no misconduct and J J subsequent events (which [the defendant] did not originally intend) cannot K retrospectively be used to satisfy either the mens rea or the seriousness K elements”. L L M 83. Leaving for the moment whether an improper motive was M necessary to satisfy the “mens rea” element (as opposed to the N N “seriousness” element) in relation to the disclosure misconduct to make it O culpable, on the defence submission that the time gap is irrelevant, I have O two comments. First, however long time has elapsed, the character of the P P initial source of the information does not change. To this extent, yes the Q time gap is irrelevant. Second, the longer the time gap, the more likely it Q is that the defendant might have other independent opportunities to get to R R meet PW3 Lee (again) from some other quarters or on other occasions. If S such further encounter(s) did happen before PW3 Lee formally engaged S the defendant as a paid lawyer, it could perhaps be argued that it/they broke T T U U V V  - 40 - A A B B the chain of causation as to how the defendant came to act for PW3 Lee. C In this sense, the time gap is relevant. C D D 84. As it is, in this case, the time gap between the defendant first E disclosing the personal particulars of PW3 Lee (on or about 27 April 2017) E to PW4 Pang and her accepting instructions to act for PW3 Lee (on or about F F 15 June 2017) spanned no more than 8 weeks. There was a clear chain of G causation of between the two despite the circuitous route in between. There G was no break in the chain of causation. PW4 Pang played an important H H role of a conduit to make the acceptance happen. I I 85. In saying the above, I am acutely aware that there was J J common evidence from PW4 Pang and the defendant that PW3 Lee did K give his ex post facto consent during the meeting on 26 May 2017 to his K being approached in this way. However, even this does not change the L L character of how the defendant obtained the information and passed it on M to PW4 Pang in the first place. M N N 86. Implicit in the defence argument in para 175 of their written O closing submissions is that the acceptance, even if it was a “conduct”, did O not relate to the defendant’s public office. I beg to disagree. The P P acceptance of instructions from PW3 Lee has as its background how the Q defendant first came to know of the existence of PW3 Lee and ultimately Q her getting to meet him. In other words, implicit in Particular (c) of the R R Charge, the prosecution is saying that the defendant accepted instructions S from PW3 Lee to act for him in a civil claim against Dr Wong by (x) using S the information she first obtained from the Medical Council PIC file (P5) T T U U V V  - 41 - A A B B and/or (y) disclosing it to PW4 Pang (the latter, when read with Particular C (a)). C D D 87. In short, the defendant would not have been able to meet with E PW3 Lee as a potential client but for her privileged access to P5 in her E capacity as a lay member of the Medical Council. Seen in this light, the F F defendant’s acceptance of instructions from PW3 Lee is no less related to G her public office than Sin Kam Wah’s “acceptance of sexual services from G women over whom he knew the second appellant was exercising control, H H direction or influence” (taken from para 54 of Sin Kam Wah, supra) was I related to his; nor is the defendant’s said acceptance less related to her I public office than Chapman’s (a prison officer) selling of stories related to J J a high-profile prisoner to a journalist was related to his (see R v Chapman K & Ors [2015] 2 Cr App R 10). K L L 88. I therefore make the interim conclusion that both Particular M (a) and Particular (c) of the Charge are independently misconduct in M relation to the defendant’s public office. If I am wrong on my assessment N N of Particular (c), in any event, when Particular (a) and Particular (c) are put O together, then the whole course of conduct amounts to misconduct in O relation to her public office. P P Q 89. By way of transition to a discussion of the next element of the Q offence, I would quote below the prosecution’s characterization of the act R R of disclosure by the defendant (from para 57 of the prosecution’s written S closing submissions): S T T “57. … U U V V  - 42 - A A B In making the Disclosure, the Defendant abused her official B position and what she did was clearly inconsistent with her C responsibilities to protect personal data of complainants and C preserve confidentiality of information entrusted with her by the Medical Council.” (emphasis removed) D D Element 3: wilfully misconducts himself by act or omission E E F F 90. The Court of Final Appeal in Sin Kam Wah, supra, held that: G G “46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was H H unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable I excuse or justification is culpable.” (emphasis added) I J 91. Interestingly, the Hong Kong Specimen Directions in Jury J Trials Volume 2: 2020 Revision of Selected Topics (amended February K K 2022) at 118-4, the relevant direction is this:- L L “4. If you are sure that the [act alleged / failure to act as M M alleged] took place in the course of, or in relation to, the responsibilities of the defendant’s office, the next issue is N whether in [acting as he did / failing to act as alleged], he wilfully N misconducted himself. By wilful misconduct I mean deliberately doing something which is wrong, knowing it to be wrong or O wilfully disregarding the risk that his conduct was wrong.” O (underline added) P P 92. There then immediately followed a footnote 7 which says:- Q Q R “7 Sin Kam Wah at [46] uses the phrase “knew that [it] was R unlawful”. In A-G’s Reference (No 3 of 2003) [[2004] Cr App R 23] at [28], the Court approved the following definition: S “deliberately doing something which is wrong knowing it to be S wrong or with reckless indifference as to whether it is wrong or T not”. Since this latter definition has the advantage that it does not T leave the jury to decide what is meant by “unlawful” and U U V V  - 43 - A A B removes the need for a further direction that ignorance of the law B is no excuse, this specimen uses the latter phrase.” C C 93. I believe the central message there is that the conduct (whether D D it be act or omission) must be wrong, and that the accused knew that it was E wrong or wilfully disregarded the risk that it was wrong. E F F 94. In any event, in the present case, as regards the disclosure G aspect, I found there is a clear breach of the Data Protection Principle. G There is no dispute that the defendant knew that her conduct contravened H H 2 the Data Protection Principle and was therefore unlawful . I I 95. In relation to the acceptance of instructions aspect (standing J J alone) but with the source of the potential client clearly in mind, as a K lawyer, she would at least be disregarding the risk that it was wrong. If the K acceptance aspect is considered with the disclosure aspect, the defendant L L would know that it was unlawful because the acceptance flowed from an M unlawful disclosure. M N N 96. As this element deals with the mens rea aspect, I ought to deal O O with one important issue which has cropped up in the trial. It is whether P an improper motive is also an additional mens rea element in the factual P matrix of this case. This is something separate from improper motive being Q Q a relevant consideration in the analysis on the “seriousness” element for R which I believe there is no dispute between the parties. R S S T T 2 See also that part of PW4 Pang’s evidence summarized as para 29 (gg) of the prosecution’s written closing submissions reproduced at para 44 hereinabove which I unreservedly accept. U U V V  - 44 - A A B B 97. First of all, I think one needs to classify what the C misconduct(s) is/are in this case. According to the prosecution, and in light C of my findings, there are two. One is the disclosure; the other acceptance D D of instructions. E E 98. For the disclosure, the prosecution characterized it as F F “abus[ing] her official position and what she did was clearly inconsistent G with her responsibilities to protect personal data of complainants and G preserve confidentiality of information entrusted with her by the Medical H H Council.” I I 99. Whilst it could be classified as “positively abusing her J J position” as the defence would like me to think, it could also be classified K as failure to uphold the duty of protecting the personal data of complainants K and to preserve confidentiality of information entrusted with her by the L L Medical Council. I believe the latter is the correct classification. M M 100. While I would certainly wish to avoid using such terms as N N “nonfeasance” and “misfeasance” for fear of confusing anyone, the O disclosure aspect of this case is a clear case of breach of duty by failure to O act. As such, it is a case not dissimilar to HKSAR v So Ping Chi [2019] 1 P P HKLRD 140. Q Q 101. I reproduce below the prosecution’s summary of the salient R R features of So Ping Chi both at first instance and in the Court of Appeal: S S “87. In HKSAR v So Ping Chi DCCC 338/2015 (PAN 21), the T accused was the General Manager and Principal Surveyor of T Ships of the Marine Department responsible for the enforcement U U V V  - 45 - A A B of legislation relating to local vessel safety. At the material B times, the accused instructed his subordinates not to enforce the C new legislation which introduced a requirement that children’s C lifejackets be kept on board vessels in use or operation and failed therefore to rescind the aforesaid instruction. D D 88. In convicting the accused of the offence of misconduct in public office, the trial judge in So Ping Chi held, inter alia, that: E E (a) the accused’s issuance of the aforesaid instruction was wilful, that is deliberate and not inadvertent, and there was no evidence F as to why he did not rescind it; (b) it was not necessary for the F accused’s misconduct to be accompanied by a dishonest, corrupt, malicious motive to be sufficiently serious to warrant criminal G G sanction (‘Finding (b)’); (c) the accused’s departure from his duty to enforce the new legislation was not merely negligent but H ‘amounted to an affront to the standing of the public office held’ H with potentially serious consequences; and (d) the accused’s contention that he issued the aforesaid instruction to appease I industry representatives and ensure the ‘smooth implementation’ I of the new legislation did not constitute a reasonable excuse or J circumstances in the circumstances. J 89. In HKSAR v So Ping Chi, the accused was granted leave K to appeal against conviction and sentence and one of the grounds K of appeal (ie Ground 7) was that the trial judge’s Finding (b) was wrong in law (see paragraph 30 of the Court of Appeal L L Judgment). In dismissing the aforesaid ground of appeal, the Court of Appeal said: M M “38. We shall deal first with the more fundamental complaint made in Ground 7 of the appellant’s grounds N of appeal that, in the absence of a dishonest, corrupt or N malicious motive, which the judge accepted, the O seriousness of his conduct was not such as to call for O criminal sanction. The argument put forward on behalf of the appellant is that, absent a dishonest, P corrupt or malicious motive, the appellant’s conduct P in issuing the non-enforcement instruction could not Q be culpable. Q 39. However, we think this is a misreading of what R Sir Anthony Mason had to say in Shum Kwok Sher R where, at paragraphs 82-83, he was addressing the question of the mental element of the offence. In so S S doing, he distinguished between the various forms of misconduct that the offence may take, which he T described as: T U U V V  - 46 - A A B “…ranging from fraudulent conduct, through B nonfeasance of a duty, misfeasance in the C performance of a duty or exercise of a power with C a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar D motive [ie malfeasance], to oppression.” D We should nonetheless emphasise that misconduct does E E not become culpable simply because it can be “pigeon- holed” into one of these categories, which Sir Anthony F Mason explained were not intended to be exhaustive. F Rather, it is because the misconduct possesses features which warrant it being regarded as culpable. However, G G what these features are will vary according to the form that the misconduct takes. H H 40. In misfeasance of duty cases, a public officer will normally be exercising a lawful power or I authority when he performs the impugned act, which I is not in breach of his duty. Accordingly, it must be J shown that he has otherwise misconducted himself in J the performance of that act, because the act, by itself, will not amount to misconduct. Evidence is therefore K needed to prove that what on its face is the lawful K performance by a public officer of his duty is in fact misconduct. That may be demonstrated by evidence L L of impropriety in respect of the means by which the public officer carries out his duty, or by evidence or M inference as to the motive which underlies its M performance. N 41. However, for cases of nonfeasance of duty, all N that is generally required to be proved is a wilful O intent, accompanied by the absence of a reasonable O excuse or justification, in respect of misconduct that is serious. The reason for this is that the public officer, P by not performing his duty, is already shown to have P misconducted himself. However, this, by itself, will Q not be enough: what makes his proven misconduct Q culpable is that it is both wilful and serious. And by “wilful”, Sir Anthony Mason made clear that the non- R performance had to be both voluntarily and R deliberately done. … S S 43. Unlike Boulanger, which involved an allegation of misfeasance, the appellant before us had T misconducted himself by deliberately not performing T his public duty when he issued and failed to rescind the non-enforcement instruction, knowing that he U U V V  - 47 - A A B was substituting his own decision, without authority, B approval or legal advice, for the legislative intention. C This seems to us to be a clear case of nonfeasance, or C breach of duty: it was not a misfeasance case involving the lawful exercise of a power or authority, D but with an impure or improper motive. Mr Marash’s D reliance on the passage in Shum Kwok Sher in this regard is, with respect, misconceived.” (footnote E E omitted and emphasis added)” (footnote omitted) F F 102. Hence, from the underlined sentences in the above extract, it G is clear that the disclosure aspect of the present case belongs to the category G of breach of duty cases, for which no improper motive needs to be proved H H as part of the mens rea. In this connection, I found the defendant’s act of I disclosure a deliberate act; that it was a clear knowing breach of the Data I Protection Principle under Cap 486 as the defendant herself acknowledged J J in the witness box. K K 103. Now, how about the acceptance of instructions aspect? This L L is clearly something positive not unlike the acceptance of sexual services M in the Sin Kam Wah case. If the acceptance of instructions aspect has to be M pigeon-holed into one of the cliché categories, then I would put it under the N N “acting in excess of power or authority” category for which a dishonest, O O corrupt or malicious motive is required, as per para 81 of Shum Kwok Sher, P supra (this is what Macrae VP termed “malfeasance” in para 39 of So Ping P Chi, supra). Just as there was clear evidence of corruption in the Sin Kam Q Q Wah case, here there is clear and agreed evidence of the defendant doing it R for personal benefits which would supply the necessary improper motive. R S S 104. So under both aspects, the prosecution should have no more T hurdle to cross as far as this element goes. T U U V V  - 48 - A A B B Element 4: without reasonable excuse or justification C C 105. The burden is on the prosecution to disprove reasonable D D excuse and justification. E E Disclosure aspect F F G 106. I have already found for the defendant that she may have read G Patient Wong’s consultation notes suggesting he had suicidal tendencies H H and that might have led her to re-visit P5 in more detail. I I 107. I found as a fact that she read P5 at home. J J K 108. I found that the fact of reading P5 might have led her to do K internet research which ultimately might have led her to disclose to PW4 L L Pang the particularized information she obtained from P5 concerning PW3 M Lee. M N N 109. Defence submitted I should adopt an objective standard and O consider reasonableness in light of the surrounding circumstances. I agree. O P P 110. Defence also submitted that I should decide whether the Q defendant’s conduct of making the disclosure was motivated by a desire to Q get SOCO to assist PW3 Lee (in this context, I would consider both the R R “suicide” aspect and the “raise public awareness on ENS” aspect), and if S so, whether in the context of this case, it amounted to “reasonable excuse”. S T T U U V V  - 49 - A A B B 111. First of all, I found for the benefit of the defendant that she C might have genuinely suspected PW3 Lee might also have suicidal C tendencies after reading Patient’s Wong’s consultation notes. D D E 112. I also accept for the benefit of the defendant that her conduct E of making the disclosure might have been motivated by a desire to get F F SOCO to assist PW3 Lee. G G 113. However, what I do not accept as reasonable were:- H H I (a) Her revisiting P5 at home after she had already recused I herself from handling PW3 Lee’s complaint against Dr J J Wong: she should have nothing further to do with P5; K and K (b) Her disclosure to PW4 Pang even in light of what might L L have happened and what she might be thinking about. M M 114. If she was genuinely concerned about PW3 Lee’s well-being N N after reading the consultation notes of Patient Wong, as I found her to O possibly be, the only proper and reasonable thing to do was to approach O and seek assistance from the Medical Council to which the confidential P P information belonged, and to discuss possible resolution strategies; and not Q to privately go through PW3 Lee’s information in P5. Q R R 115. And even after going through that information and doing the S internet research, it still would not be too late to approach the Medical S Council to do the same. Instead, the defendant chose to disclose the T T U U V V  - 50 - A A B B information to someone who has no right to have access to such C information. C D D 116. These decisions of the defendant to read P5 at home, and then E to disclose the information contained therein to PW4 Pang is a serious E infringement of the privacy rights of PW3 Lee and a serious breach of the F F duty to preserve confidentiality of information entrusted with her by the G Medical Council for which there could be no reasonable excuse or G justification especially not for a lawyer with so many years’ professional H H experience and a lay member of the Medical Council of so many years’ I standing. I J J 117. I ruled therefore that the prosecution has successfully negated K reasonable excuse and justification as far as the disclosure aspect goes. K L L Acceptance of instructions aspect M M 118. Defence has not made any particular submission on this N N aspect. In my judgment, there could be no reasonable excuse or O justification for accepting instructions from someone who the defendant O knew was sourced from a file she could only have obtained access to in her P P capacity as a lay member of the Medical Council. In making this judgment, Q I have not ignored the fact that PW3 Lee has given ex post facto consent to Q the way he was approached; however, this does not change the character R R of the origin of the information. If an ex post facto consent could be S allowed to constitute a reasonable excuse or justification in this respect, it S would open a flood gate to improper use of confidential information in T T order to elicit business. U U V V  - 51 - A A B B C 119. The prosecution has proved this element of the offence. C D D Element 5: such misconduct is serious E E 120. The prosecution makes the following submissions on general F F principles (taken from their written closing submissions) which, with G respect, must be correct: G H “94. It is apt to refer to the question posed by Sir Anthony H Mason in Shum Kwok Sher as to how serious the misconduct must be: I I ‘86. … Whether it is serious misconduct in this J context is to be determined having regard to the J responsibilities of the office and the officeholder, the importance of the public objects which they serve and K the nature and extent of the departure from those K responsibilities.’ (emphasis added) L L 95. Subsequently, in Chan Tak Ming [[2010] 13 HKCFAR 745], the Court of Final Appeal, in answering the certified M question of law ‘is anything which is not trivial to be regarded as M serious for the purposes of that definition?’, said: N N ‘27. Turning to the third certified question of law, it should be answered thus. As the fifth item of the Sin Kam O Wah re-formulation underlines, trivial misconduct will of O course not support a charge of misconduct in public office. That said, the question is whether the offence is P serious having regard to – as stated in that item – the P responsibilities of the office and the office-holder, the Q importance of the public objects which they serve and Q the extent of the departure from those responsibilities. It is in that way – and not by saying that R it must be sufficiently serious since it is not trivial – that R one goes about deciding whether the necessary S seriousness exists.’ (emphasis added) S Likely Consequence T T 96. It is necessary to note that the factors mentioned in Shum Kwok Sher are not meant to be exhaustive. As pointed out by U U V V  - 52 - A A B Chan ACJ in HKSAR v Ho Hung Kwan Michael [2013] 16 B HKCFAR 525 (PAN 23), the consequences of the misconduct C are also relevant when considering whether the misconduct C is serious enough to merit criminal sanction (see paragraphs 29 to 30 of the judgment). D D 97. In HKSAR v Chu King Kwok HCMA 855/2009 (PAN 24), the accused was a taxation officer at the Inland Revenue E E Department. Between 1 April 2004 and 16 November 2006, he copied (but never used or disclosed) the personal data of 18,300 F taxpayers without the authority of the Commissioner of Inland F Revenue. The trial magistrate acquitted the accused on the basis that the accused’s misconduct was not ‘serious’. The prosecution G G appealed by way of case stated pursuant to section 105 of the Magistrates Ordinance, Cap 227. H H 98. In Chu King Kwok, Beeson J (as she then was) answered the question of law ‘in determining whether a public officer’s I conduct falls so far below the standard of conduct to be expected I of him so as to constitute the offence of misconduct in public J office, is it necessary to consider the likely consequences of J the breach in regard to the nature of his office?’ in the affirmative (see also paragraphs 4, 22-29, 36-44, 47, 49-51 and K 56-65 of the judgment): K ‘49. In every case where misconduct is established L L there may be potential harmful consequences flowing from it, although it may not be possible to prophesy M which particular consequence or consequences will M result. It cannot be expected that in each case all the possible consequences can be spelt out in detail or N catalogued. Such consequences must be taken into N account to a greater or lesser extent. O O 50. However, in my judgment the likely consequences of the Respondent’s misconduct were not P accorded their proper significance by the Magistrate. In P this case an experienced, long-serving public officer, Q who was fully aware of the legal and departmental Q confidentiality requirements which governed his work, recorded for his own purposes important R personal details of a very large number of taxpayers R both individual and corporate. Some of that recorded data was removed from his office and kept at his home. S S The data obtained was exposed openly both in the office and at his home. The recording and exposure of the data T took place over a period of 2½ years. At least some of the T data could have been exposed for up to 2½ years. The privacy and confidentiality which a taxpayer is U U V V  - 53 - A A B accorded by law to ensure that the Inland Revenue is B able to pursue its revenue collecting duties with the C fullest co-operation of the taxpayer, were ignored. C 51. Any member of the public who was apprised D of the Respondent’s activities as described above and, D certainly, any taxpayer, could not fail to regard such misconduct as a serious abuse of the public’s trust in E E the officer. One of the least serious consequences of the abuse of public trust could be that taxpayers F might be less forthcoming with their personal F information on future occasions. An even more serious possible consequence might be that a taxpayer G G evaded paying tax altogether, rather than risk exposure of his personal details. An objective H observer would regard the Respondent as having H brought his office into disrepute; as having caused suspicion and as having misconducted himself in a I way which would lead to reasonable criticism. In the I words of the court in Dytham, the misconduct was J “calculated to injure the public interest so as to call J for condemnation and punishment”.’ (emphasis added) K K 99. It is noted that the facts of Chu King Kwok are different from the facts of the present case. In Chu King Kwok, the accused L L copied personal data of a large number of taxpayers but never used or disclosed them. However, it is submitted that what M Beeson J (as she then was) said about the relevance of the ‘likely M consequence’ stands to be a correct statement of law. N 100. Further, the effect on public confidence in the system N and the possible damage to the integrity of the system are O also relevant for consideration in deciding whether the O misconduct is so serious as to amount to the common law offence of misconduct in public office. In HKSAR v Wong P Kwong Shun Paul [2009] 4 HKLRD 840 (PAN 25), the Court of P Appeal, in considering whether the culpable misconduct of the Q appellant was serious in nature held that: Q ‘40. In order that Hong Kong can continue to be a R corruption-free, fair and just community, any public R officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict S S with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, T cause any suspicion or bring his office into disrepute. T Otherwise, the public will lose confidence in public administration and social stability and harmony will U U V V  - 54 - A A B be perturbed. In performing his public duties, a public B officer must never harbour any selfish motive and must C not intentionally benefit himself or his friends or relatives C in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any D conduct of a public officer which contravenes the above D principles is serious misconduct.’ (emphasis added)” (footnote omitted) E E F 121. The defence also cited the case of Ho Hung Kwan Michael in F their written closing submissions and invited me to consider the following:- G G H “210. In Ho Hung Kwan Michael [PLoA#23], Chan ACJ H notes in §26 that:- I “[T]his offence is aimed at punishing an abuse by a I public officer of the power and duty entrusted to him for J the public benefit or of his official position.” J 211. In the discussion of “seriousness”, Chan ACJ quotes Pill K LJ’s judgment in Re AG’s Reference (No. 3 of 2003) [2004] 2 K Cr App R 23 [DLoA#16]:- L L “…there must be a serious departure from proper standards before the criminal offence is committed; and M a departure not merely negligent but amounting to an M affront to the standing of the public office held. The threshold is a high one requiring conduct so far below N acceptable standards as to amount to an abuse of the N public’s trust in the office holder. A mistake, even a O serious one, will not suffice. The motive with which a O public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct.”” P P 122. It is clear that there is no disagreement between the parties Q Q that motive is a relevant consideration in the element of “seriousness”. R R S 123. There appears to be agreement too that the likely/possible S consequences of the misconduct are also relevant considerations in this T T respect. U U V V  - 55 - A A B B C 124. I am ready to accept that the threshold for seriousness is a high C one and a mistake or an error of judgement, even a serious one, is not D D enough. E E 125. When the aforesaid general principles are applied to the F F present case, it can be readily seen that the misconduct of the defendant has G crossed the high threshold. The reasons are as follows. G H H 126. The purpose of having lay Council Members is to enhance I public accountability and credibility of the Medical Council in discharging I its self-regulatory function to safeguard public interest. The PIC is J J established by the Medical Council pursuant to section 20BA(2) of the K MRO to make preliminary investigations into complaints lodged with the K Medical Council. The defendant, as a lay Council Member, would serve L L on the PIC on a rotational basis, each for a period of 3 months. M M 127. The defendant was a very experienced lawyer and admitted, N N in cross examination, she was well aware of the Data Protection Principle O which she has breached; she also acknowledged that it was an important O duty as a lay Council Member to protect personal data of complainants and P P preserve confidentiality of information (including details of complaints) Q entrusted with her by the Medical Council. Q R R 128. I agree with the prosecution submission that not only the S Medical Council, but also members of the public and complainants to the S Medical Council had every reason to expect the personal data of T T complainants and information concerning complaints made to the Medical U U V V  - 56 - A A B B Council would be safeguarded and would only be used for purposes which C are directly related to the complaints. This is only common sense, but is C also supported by the evidence of PW1 Chow, PW2 Tse and PW5 Prof Lau D D whose evidence on these aspects I accept. At all material times, the website E of the Medical Council contained the Personal Information Collection E Statement (P13) and Privacy Policy (P14) which were publicly available F F to all members of the public, complainants and Council Members. G G 129. In my judgment, an objective observer would regard the H H defendant as having brought her public office into disrepute, as having I caused suspicion and as having misconducted herself in a way which would I lead to a reasonable criticism by (a) disclosing the information related to J J PW3 Lee to PW4 Pang and/or (b) accepting instructions from PW3 Lee to K act for him in the civil claim against Dr Wong knowing full well she would K not have been able to enlist this client without access to the information in L L P5 in her capacity as a lay member of the Medical Council. M M 130. PW5 Prof Lau, Chairman of the Medical Council gave the N N following unchallenged evidence (taken from prosecution’s written closing O submissions), though its admissibility had been objected to by the defence: O P P “37. …… Q (l) PW5 stated that the Medical Council is established for Q justice. It relies on members of the public to trust that the R Medical Council is reliable and honest. He expected each R Council Member to comply with the requirements of the Medical Council; S S (m) If a Council Member, in exercising his/her public duty, T obtained information provided by a complainant, T including personal particulars, contact details of the complainant and information of the complainant’s case, U U V V  - 57 - A A B and disclosed such information to a third party for B matter(s) irrelevant to the Medical Council’s functions or C activities, PW5, in his capacity of the Chairman of the C Medical Council and also as a member of the public, was of the view that it would: D D (i) make the complainants or potential complainants very cautious in providing information when E E making future complaints to the Medical Council, despite the fact that the Medical Council publicly F published the ‘Personal Information Collection F Statement’ and ‘Privacy Policy’ on its website; G G (ii) strongly affect complainants of the Medical Council and shaken the whole complaint system H maintained by the Medical Council, being the H only system in Hong Kong to handle complaints against inappropriate conducts or malpractice of I medical practitioners; and I J (iii) adversely affect the public interest.” J K 131. I accept this evidence as I do with all other aspects of PW5 K Prof Lau’s evidence in which he gave his views as a seasoned Chairman of L L the Medical Council (I ignore his views given as a mere member of the M public). With respect to him and to the defence, the above cited evidence M merely echoes what to me is just common sense and it illustrates the N N likely/possible consequences of the defendant’s misconduct of disclosure O and of acceptance of instructions from a potential client she would O otherwise be unable to obtain access to. P P Q 132. Just to complete the picture, where PW5 Prof Lau gave certain Q evidence based, as he said on, certain assumed facts, I have found those R R facts proved. S S 133. I accept the prosecution’s submission, and this is just common T T sense, that the defendant’s misconduct would cause damage to the U U V V  - 58 - A A B B reputation, professionalism and credibility of the Medical Council and/or C make the public cast doubts on the ability of the Medical Council in C preserving confidentiality of personal data. D D E 134. I also accept the prosecution’s submission that the defendant’s E misconduct may also consequently make the public, including potential F F complainants to the Medical Council, being reluctant to provide G information to the Medical Council, with the result, and this is just common G sense, that the effectiveness of the Medical Council in performing its H H statutory functions being compromised. I I 135. In the case of acceptance of instructions from PW3 Lee whose J J existence the defendant only learned about from the Medical Council PIC K file P5, this is a misconduct committed in the manner of abusing public K office for pursuing private gain. I accept that this would seriously affect L L the public interest. M M 136. In my judgment, the defendant’s misconduct has an adverse N N impact on public confidence and has damaged the integrity of the O complaint system. O P P 137. Consequently, I accept that the defendant’s misconduct has Q caused harm to the public interest and constitutes an abuse of the public Q trust’s in the office holder. R R S 138. Before reaching that interim conclusion, I have revisited my S consideration on Element 4 (without reasonable excuse or justification) T T and I do not find anything that would detract from it. U U V V  - 59 - A A B B C 139. I would add the following. It is not necessary for the C prosecution to prove that the defendant herself reached the conclusion that D D the misconduct was so serious as to amount to an abuse such as to call for E condemnation and punishment; it is sufficient to prove that she had the E means of knowledge available to her to make the necessary assessment of F F the seriousness of the misconduct; in other words, she must know the facts G and circumstances which would lead the right-thinking member of the G public to conclude that the misconduct was thus serious: Chapman, supra, H H at paras 48-49. There is ample evidence that she knew those facts and I circumstances being an experienced lay member of the Medical Council I and a seasoned solicitor. J J K 140. I am of the view that Particular (a) of the Charge is serious K and culpable misconduct on its own, despite there being no apparent L L improper motive. M M 141. I am also of the view that Particular (c) of the Charge is N N serious and culpable misconduct on its own, bearing in mind how the O defendant has been able to enlist such a client in the first place. The O misconduct was done for personal benefits which in the context of this case P P was an improper motive. This is so despite the prosecution’s apparent Q concession, which I do not accept, that standing on its own without Q Particular (a), Particular (c) does not amount to misconduct in public office. R R S 142. In any event, under the factual matrix of this case, there has S been a continuous course of misconduct running from obtaining the private T T information of PW3 Lee while at home, sharing it with PW4 Pang (both U U V V  - 60 - A A B B without the prior consent of anyone), which ultimately led to the defendant C accepting instructions from PW3 Lee to act for him in the civil claim. So, C a fortiori, the continuous course of misconduct must be serious and D D culpable misconduct. E E 143. The prosecution has proved all elements of the offence F F beyond a reasonable doubt. G G Conclusion H H I 144. For the above reasons, the defendant is guilty of the offence I charged. J J K K L L ( Isaac Tam ) District Judge M M N N O O P P Q Q R R S S T T U U V V  -1- A A B B Annex 1 C C Reasons for dismissing the defence’s application to exclude certain D intended prosecution evidence D E E Defence’s application F F 1. There are two chunks of evidence that the defence objected G G to. The first relates to some parts (only) of the intended evidence of PW5 H Prof Lau (Chairman of the Medical Council). The second relates to H Chapters 3 (Obtaining Instructions) and 25 (Solicitors Practice Promotion I I Code) of the Hong Kong Solicitors’ Guide to Professional Conduct. J J Challenged intended evidence of PW5 Prof Lau K K L 2. The evidence comes in 5 parts. Part 1 encapsulates Part 2 and L Part 4. So a treatment of Part 1 will have completely dealt with Parts 2 and M M 4. A large portion of Part 1 deals with “conflict of interest”. After my N raising the matter with the prosecution, the prosecution agreed not to ask N PW5 Prof Lau anything relating to this aspect. So what is left of Part 1 is O O just about PW5’s opinion whether certain facts, if proved, contravene the P Data Protection Principle mentioned in the Personal Data (Privacy) P Ordinance, Cap 486. Q Q R 3. Defence seems to be taking objection on the basis that the law R and its interpretation is a matter for me, not a witness. That, I agree. Being S S a single judge, I will certainly guard against any attempt by the witness to T usurp my function in this regard. T U U V V  -2- A A B B 4. Parts 3 and 5 of the challenged evidence are very short. C C 5. Part 3 deals with PW5 Prof Lau’s purported opinion as to the D effect on the public towards the Medical Council where there has been D leakage of a complainant’s particulars to a third party and how that may E E hinder the Medical Council’s work in its statutory functions relating to F handling complaints, investigating professional misconduct and taking F disciplinary action. G G H 6. Part 5 deals with PW5 Prof Lau’s purported opinion that the H defendant by deliberately making use of the information she obtained from I I public office to seek personal gain causes serious harm to the public J interest. J K K 7. Defence objected to Parts 3 and 5 on the basis that it is opinion L evidence and irrelevant and conjectural. Quite apart from the fact much of L Part 3 is just common sense, I would regard PW5 Prof Lau as the most M M qualified person to give the court a feel of how the leakage of information N has impacted the Medical Council in its work or what the likely effect to N the Medical Council of the leakage of information is. As regards Part 5, O O being a single judge, I will guard against PW5 Prof Lau’s attempt to P determine the ultimate question for me; however, I believe there is no harm P in hearing him about the basis on which he forms that opinion, given his Q Q prominent position in the organization from which the information flowed. R R Solicitors’ Guide Chapters 3 and 25 S S T 8. The purpose of the prosecution seeking to produce the two T chapters as exhibits was to show that the defendant had, by her alleged U U V V  -3- A A B B conduct of misusing and disclosing the personal particulars of PW3 Lee to C PW4 Pang, which ultimately led to her taking instructions from PW3 Lee C to act as his paid lawyer, breached Article 3.03 in Chapter 3 of the D Solicitors’ Guide which prohibits a solicitor from obtaining business by D improper means such as touting in contravention of the Solicitors Practice E E Promotion Code (Chapter 25). F F 9. It is important to note that the prosecution is not targeting the G G defendant for breach of the Guide as Guide simpliciter, it is seeking to H show two things: first, that the defendant, if she did breach the Guide, was H deliberately doing an unlawful act (in the wide sense) knowing it was I I unlawful (this is one element of the offence of Misconduct in Public J Office); and second, by knowingly breaching the Guide, that added to the J seriousness of the misconduct (another element of the offence) and also K K provided the context. L L 10. It is also important to remember that the Guide itself is silent M M as to whether the defendant breached the Guide; that comes from other N evidence. The Guide merely provides a yardstick with which to measure N the defendant’s relevant conduct much like the Data Protection Principles O O do. P P 11. Defence objected to the production of these two chapters of Q Q the Guide on the bases that (a) it is an unindicted allegation; (b) it is being R used for an impermissible line of reasoning; and (c) it is irrelevant. R S S 12. As said, the Guide is merely a yardstick with which to T measure. It is not even an allegation. The Guide is relevant in that it is T being used to measure the defendant’s alleged conduct to see if it was U U V V  -4- A A B B unlawful (in the wide sense) and the degree of seriousness of the conduct C and its consequences. C D 13. The Guide (Chapters 3 and 25) is clearly admissible. D E E F F G G H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V