Chapter 6

Prosecution process

Prosecution process

On 4 June 2018, D1 to D4 were charged with illegal access to mobile phones to send and receive confidential information and questions of the 2016 and 2017 HKDSE Chinese Language examinations. D1 and D2 faced a joint charge of conspiracy to obtain access to a computer with dishonest intent, contrary to sections 159A and 161(1)(c) of the Crimes Ordinance; D1 and D3 faced a similar charge; while D1 and D4 were jointly charged with obtaining access to a computer with dishonest intent, contrary to section 161(1)(c) of the Crimes Ordinance.

The original charges were subsequently amended, and D1 to D4 were instead charged with conspiracy to commit misconduct in public office, contrary to the common law and section 159A of the Crimes Ordinance. Before the commencement of the trial, the four defendants applied for a stay of proceedings, but the application was refused by the magistrate.

Public officials are empowered to serve in the public interest. In view of their important roles and responsibilities, misconduct in public office (MIPO) and conflict of interest among public officials have given rise to widespread public concern. In recent years, ICAC investigations revealed some cases where public officials and employees of public bodies were found to have misconducted themselves due to serious conflict of interest, resulting in prosecutions under the common law offence of MIPO.

MIPO is a common law offence which targets all forms of serious misconduct by public officials, while the definition and scope of the offence is evolving to meet the social development and the standard of conduct to be expected of public officials.

The Court of Final Appeal has in previous court cases spelt out the key elements of MIPO. It was held that the offence is committed where a public official:

  • in the course of or in relation to his public office;
  • wilfully misconducts himself by act or omission, for example, by wilfully neglecting or failing to perform his duty;
  • without reasonable excuse or justification; and
  • where such misconduct was serious and not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The misconduct in question must be deliberate, rather than by accident or inadvertence or oversight, in the sense that the public official either knows his conduct is unlawful or deliberately disregards the risk that his conduct is unlawful. Wilful misconduct without reasonable excuse or justification is culpable. Wilful misconduct without reasonable excuse or justification is culpable.

A public official may still commit the offence of MIPO, even if such misconduct does not involve bribery in the course of his public office, if he:

  • abuses his official position for pecuniary gain (whether for himself or others);
  • exercises his discretionary power improperly;
  • shows favour to a particular contractor with a private motive;
  • wilfully neglects his duties.

A public official convicted of MIPO is punishable under section 101I(1) of the Criminal Procedure Ordinance (Cap 221) and is liable to a maximum penalty of seven years’ imprisonment and a fine.

播放機影片 Animation for “Integrity Promotion Campaign for Public Bodies”

Taking into account the ICAC investigation report, the evidence and the seriousness of the case, the Department of Justice did not wish to charge the defendants with secrecy under section 15 of the Hong Kong Examinations and Assessment Authority Ordinance (HKEAAO). Though the defendants committed a breach of secrecy, section 15 was unable to cover the motives, purposes and foreseeable consequences of the relevant criminal conduct.

Under HKEAAO, any person who contravenes the secrecy provisions is liable to a maximum penalty of six months’ imprisonment. When explaining why the defendants were not charged under HKEAAO, the investigating officer said, “Given the extensive and profound impact of this case, the criminal acts committed by the defendants went far beyond the reach of section 15 of the HKEAAO.”

The case involved public officials who conspired with a private tutor to divulge examination questions. Their conduct had not only greatly undermined the fairness and impartiality of the examination, but also affected the recognition given to the public examination system. It was not merely about the leakage of examination questions. Since the basis of the prosecution was far beyond the scope of section 15, the Department of Justice decided to charge the four defendants with MIPO and conspiracy to commit MIPO.