Hong Kong: revisiting the offence of misconduct in public office

The common law offence of misconduct in public office is a key weapon in the fight against corruption in Hong Kong. We examine several key cases and their impact on the development of the law.

On October 5, 2015, former Chief Executive of the Hong Kong Special Administrative Region, Donald Tsang, was charged with two counts of misconduct in public office. The first charge alleges that Tsang failed to declare, or concealed from the Executive Council, that he was in negotiations with Bill Wong (a major shareholder of a company which was seeking approval from the Executive Council for a digital broadcasting licence) in respect of a residential tenancy in a flat in Shenzhen. The second charge alleges that Tsang either failed to disclose or concealed information from the then Permanent Secretary for the Chief Executive’s Office, the Development Bureau and the Honours and Non-official Justices of the Peace Selection Committee, concerning an architect nominated for the HKSAR honours and awards who was responsible for the interior design of the Shenzhen flat. This is the first time a Chief Executive of the HKSAR has been charged with wilful misconduct in public office in the history of the territory.

The scope of the common law offence of misconduct in public office makes it a powerful tool in tackling corruption because of the lacuna in Hong Kong’s anti-bribery legislation, the Prevention of Bribery Ordinance (POBO). Under the POBO, it is an offence for public officials to solicit or accept an advantage as an inducement or reward for them to perform certain acts. The POBO also provides for the following limited offences concerning the Chief Executive:

• soliciting or accepting an advantage as an inducement or reward for performing or abstaining from performing any acts in the capacity as Chief Executive (Section 4 POBO)
• soliciting or accepting an advantage as an inducement or reward for giving assistance in contracts with a public body (Section 5 POBO)
• maintaining a standard of living above that which is commensurate with his present or past official emoluments or is in control of pecuniary resources or property disproportionate to his present or past official emoluments (Section 10 POBO).

On the other hand, the common law offence of misconduct in public office is wider in scope, as it encompasses any serious misuse of power or position by public officials even in the absence of evidence that they have received a bribe.

Since 2000, the Independent Commission Against Corruption (ICAC) has initiated around 40 charges for this common law offence, 30 of which resulted in convictions. It can therefore be observed that the conviction rate for the offence is quite high.

In Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, the Court of Final Appeal re-formulated the test for the common law offence of misconduct in public office. In that case, Sin Kam Wah (Sin), a former Senior Superintendent of the Hong Kong Police, was charged with three counts of misconduct in public office. The charges concerned allegations that Sin had accepted from Lam Chuen Ip (Lam) (a person having proprietary interests in Kowloon nightclubs) sexual services free of charge from various women over whom he knew Lam was exercising control, direction or influence for the purpose of or with a view to the women’s prostitution. Sin’s conviction on all three counts of misconduct in public office was upheld by the Court of Final Appeal.

The Court of Final Appeal laid down five ingredients to the offence of misconduct in public office. It is committed where:

1. a public official
2. in the course of or in relation to his public office
3. willfully misconducts himself, by act or omission, for example, by willfully neglecting or failing to perform his duty
4. without reasonable excuse or justification
5. where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

As regards point 3 above, the Court of Final Appeal stated that the misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful.

The Court of Final Appeal stated that to constitute the offence of misconduct in public office, willful misconduct which has a relevant relationship with the defendant’s public office is enough. Misconduct otherwise than in the performance of the defendant’s public duties may have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. The Court of Final Appeal took the view that Sin’s misconduct had the necessary relationship with his public office; it was also culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom Lam exercised control, direction or influence, that being in itself a serious criminal offence.

In 2010, the Court of Final Appeal examined the offence of misconduct in public office again in Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745. Chan Tak Ming (Chan) was a former senior medical officer of a public hospital. He was convicted of a count of misconduct in public office through obtaining patients’ personal particulars from documents and/or data-handling systems of the Hospital Authority for his personal use. In that case, Chan sent out letters to the patients whose personal particulars he had obtained indicating that he was going to commence private practice. In upholding his conviction, the Court of Final Appeal applied the test laid down in Sin Kam Wah and emphasised that personal benefit was not an element of the common law offence so that the relevant misconduct could be committed for no discernible or provable motive. In addition, the Court of Final Appeal held that to determine whether the necessary seriousness existed for the purposes of point 5 as laid down in Sin Kam Wah, an evaluation of the responsibilities of the office and the office-holder, the importance of the public objects which they served and the extent of the departure from those responsibilities was required.

Under section 101 (1) of the Criminal Procedure Ordinance (Cap. 221), a public official convicted of the offence of misconduct in public office is liable to imprisonment for seven years and a fine. In Sin’s case, he received sentences of two years for each offence of misconduct in public office, to be served concurrently. In Chan’s case, he was fined HK$50,000.

Another recent high profile conviction relating to the offence of misconduct in public office concerned Rafael Hui (Hui), the former Chief Secretary of the government of Hong Kong in December 2014. Of the five counts in respect of which Hui was convicted, three counts related to misconduct in public office and one count related to conspiracy to commit misconduct in public office. The three counts of misconduct in public office involved: (i) Hui’s failure to disclose acceptance of secured loans in the total amount of HK$2.4 million from a subsidiary of one of the largest property developers in Hong Kong; his rent-free use of two luxury units and his negotiation of a consultancy agreement with the same property developer when he was a managing director of the Mandatory Provident Fund Schemes Authority; (ii) his failure to disclose the provision to him, and annual extensions, of another unsecured loan of HK$3 million from the same subsidiary of the same property developer at the time when he was the Chief Secretary; and (iii) his failure to declare to the government HK$11.182 million worth of bribes he received when he was a non-official member of the Executive Council. In addition, Hui was convicted of a count of conspiracy to commit misconduct in public office in respect of the transfer of HK$8.5 million worth of bribes to him when he was the Chief Secretary.

In the Court’s sentencing decision against Hui, the judge accepted that (i) and (ii) did not involve bribery or corruption but that there were obvious conflicts of interest. The judge emphasised that high-ranking officials owe a duty not only to the government but to the people of Hong Kong whom they represent, and who expect them to act in the public interest and not in their own selfish interest, and, therefore, the breach of that duty and trust is a significant aspect of Hui’s criminality in the case. The sentencing decision demonstrates that misconduct in public office does not necessarily have to entail bribery.

Hui was sentenced to seven and a half years’ imprisonment in respect of five counts of conviction and was ordered to pay HK$11.182 million to the HKSAR government.

Hui and others in the case have lodged appeals against their convictions. The appeals were heard in early November 2015 and judgment was reserved which has not been handed down yet.

Many common law jurisdictions have codified the offence of misconduct in public office or are taking steps to codify it. With the exceptions of New South Wales and Victoria, most jurisdictions in Australia have codified the offence of misconduct in public office. For example, section 142.2 of the Criminal Code Act 1995 (Cth) provides for a statutory offence of abuse of public office under which any Commonwealth public official will be found guilty if he/she (i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or (ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or (iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and the official does so with the intention of: (i) dishonestly obtaining a benefit for himself or herself or for another person; or (ii) dishonestly causing a detriment to another person. Any public official who is found guilty of this statutory offence will be subject to a maximum penalty of imprisonment for five years. Similarly, section 359 of the Criminal Code 2002 (ACT) also provides for the same statutory offence for any abuse of public office by a public official in the Australian Capital Territory.

The UK has also been making headway in codifying the offence of misconduct in public office. In 2014, the Law Commission of England and Wales engaged in a project to review the common law offence of misconduct in public office with a view to simplifying, clarifying and codifying it. The review is currently at the pre-consultation stage which includes approaching interest groups and specialists in order to finalise the terms of project. It is expected that a final report with recommendations will be produced in the summer of 2016.

In Hong Kong, the possibility of codifying the common law offence of misconduct in public office was addressed in 2000 in a speech given by Mr. Kwok Man-wai (Kwok), the Ex-Deputy Commissioner & Head of Operations of ICAC. Kwok commented that the essential ingredients required to establish a charge of misconduct in public office were vague. Kwok also opined that since the offence was not codified, it was difficult to develop public awareness of the offence amongst civil servants and this deprived the public of ready access to the law. Accordingly, Kwok proposed to codify and include the offence of misconduct in public office in the POBO in the form of ‘misuse in public office for personal gain’. To date, Hong Kong has not yet taken any steps to codify the offence. This may arise out of a desire to maintain flexibility given the wide scope of the offence, and a lack of need to change the current system due to the high conviction rates.

Recently there has been debate in Hong Kong as to whether the scope of the POBO should be widened to include more provisions covering the Chief Executive. Currently, sections 3 and 8 of the POBO do not apply to the Chief Executive. Under section 3 of the POBO, a prescribed officer commits an offence if he solicits or accepts an advantage without the permission of the Chief Executive, and section 8 of the POBO prohibits any person who has dealings of any kind with a government department or public body from offering an advantage to a prescribed officer or public servant without lawful authority or reasonable excuse. The Democratic Party has moved a private motion to extend the application of sections 3 and 8 of the POBO to the Chief Executive. However, on 11 November 2015, the Hong Kong Legislative Council vetoed the private motion.