CFA rules common law offence of misconduct in public office constitutional
2002-7-10
The Court of Final Appeal (CFA) has ruled the common law offence of misconduct in public office constitutional while unanimously dismissing the appeal by a former Chief Property Manager of the Government Property Agency against his conviction.
Shum Kwok-sher, 54, who was convicted of misconduct in public office over the awarding of government contracts worth over $157 million in total, was immediately sent to jail to serve the remaining of his 30-month sentence.
In the judgement handed down by the CFA today (Wednesday), Sir Anthony Mason said the common law offence of misconduct in public office "is not imprecise or vague or arbitrary".
The common law offence was not so imprecise as to offend the requirement of Basic Law article 39 or of articles 5(1) and 11(1) of the Bill of Rights, he said. Nor was it arbitrary within the meaning of article 28 of the Basic Law.
"The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers," Sir Anthony said.
He said Shum's conduct was wilful in that he was aware of his responsibilities, and realised that what he was doing was dishonest. "And his conduct was culpable, being without reasonable excuse or justification."
The CFA judge also said the offence of misconduct in public office constituted four elements, namely a public official; who in the course of or in relation to public office; wilfully and intentionally; and culpably misconducts himself; and that it should be serious misconduct.
"A public officer, familiar with his powers and duties, should have no difficulty in appreciating that neglecting to perform his duty with wilful intent and dishonestly, corruptly and maliciously exercising his powers and discretions constitute misconduct which is criminally culpable," Sir Anthony added.
Shum was sentenced to nine months' imprisonment on December 19, 2000 after being found guilty of four counts of misconduct in public office, contrary to the Common Law.
The offences took place between August 1994 and November 1999 during which Shum had dishonestly caused and permitted government property management contracts, worth over $157 million in total, be wrongly awarded to unqualified companies owned by his famil y members and not declaring his conflicts of interest
He subsequently appealed against conviction and was released on bail in March 2001, while the Department of Justice applied for a review of sentence.
In August 2001, the Court of Appeal dismissed his conviction appeal, and allowed the Department of Justice's application. Shum had his jail term increased to 30 months, and was imprisoned again.
In March this year, the Appeal Committee allowed Shum leave to appeal, and granted him bail, pending appeal.
Shum's appeal was considered by Chief Justice Li, Mr Justice Bokhary, Mr Justice Chan, Mr Justice Ribeiro and Sir Anthony of the CFA.
An ICAC spokesman said: "We welcome the CFA judgment, which eliminates the doubts on the common law offence and clarifies its interpretation."
He added that the ICAC was concerned with the growing number of cases of abuse of office for personal gain, particularly in the awarding of government contracts in recent years.
"Together with the Administration, we will ensure that the existence of the common law offence should be adequately accessible to all public officials so that they are aware of its serious consequence," the spokesman said.
"We will study further the judgment and consult both the Department of Justice and the Administration as to the feasibility of including a specific offence of 'Corrupt Abuse of Office for Personal Gain' in the Prevention of Bribery Ordinance to co-exist w ith the common law offence," he added.
The proposal on the codification of the common law offence, currently being studied by an inter-governmental working group, had been adopted in a number of countries and would provide the ICAC with a clear mandate to investigate the corrupt conduct and to increase public awareness of a growing concern, he said.
Shum Kwok-sher, 54, who was convicted of misconduct in public office over the awarding of government contracts worth over $157 million in total, was immediately sent to jail to serve the remaining of his 30-month sentence.
In the judgement handed down by the CFA today (Wednesday), Sir Anthony Mason said the common law offence of misconduct in public office "is not imprecise or vague or arbitrary".
The common law offence was not so imprecise as to offend the requirement of Basic Law article 39 or of articles 5(1) and 11(1) of the Bill of Rights, he said. Nor was it arbitrary within the meaning of article 28 of the Basic Law.
"The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers," Sir Anthony said.
He said Shum's conduct was wilful in that he was aware of his responsibilities, and realised that what he was doing was dishonest. "And his conduct was culpable, being without reasonable excuse or justification."
The CFA judge also said the offence of misconduct in public office constituted four elements, namely a public official; who in the course of or in relation to public office; wilfully and intentionally; and culpably misconducts himself; and that it should be serious misconduct.
"A public officer, familiar with his powers and duties, should have no difficulty in appreciating that neglecting to perform his duty with wilful intent and dishonestly, corruptly and maliciously exercising his powers and discretions constitute misconduct which is criminally culpable," Sir Anthony added.
Shum was sentenced to nine months' imprisonment on December 19, 2000 after being found guilty of four counts of misconduct in public office, contrary to the Common Law.
The offences took place between August 1994 and November 1999 during which Shum had dishonestly caused and permitted government property management contracts, worth over $157 million in total, be wrongly awarded to unqualified companies owned by his famil y members and not declaring his conflicts of interest
He subsequently appealed against conviction and was released on bail in March 2001, while the Department of Justice applied for a review of sentence.
In August 2001, the Court of Appeal dismissed his conviction appeal, and allowed the Department of Justice's application. Shum had his jail term increased to 30 months, and was imprisoned again.
In March this year, the Appeal Committee allowed Shum leave to appeal, and granted him bail, pending appeal.
Shum's appeal was considered by Chief Justice Li, Mr Justice Bokhary, Mr Justice Chan, Mr Justice Ribeiro and Sir Anthony of the CFA.
An ICAC spokesman said: "We welcome the CFA judgment, which eliminates the doubts on the common law offence and clarifies its interpretation."
He added that the ICAC was concerned with the growing number of cases of abuse of office for personal gain, particularly in the awarding of government contracts in recent years.
"Together with the Administration, we will ensure that the existence of the common law offence should be adequately accessible to all public officials so that they are aware of its serious consequence," the spokesman said.
"We will study further the judgment and consult both the Department of Justice and the Administration as to the feasibility of including a specific offence of 'Corrupt Abuse of Office for Personal Gain' in the Prevention of Bribery Ordinance to co-exist w ith the common law offence," he added.
The proposal on the codification of the common law offence, currently being studied by an inter-governmental working group, had been adopted in a number of countries and would provide the ICAC with a clear mandate to investigate the corrupt conduct and to increase public awareness of a growing concern, he said.