Chapter 7
Trial
Charges
On 25 May 2020, the defendants were charged with the following offences before their appearance at Tuen Mun Magistrates’ Courts.
D1 (tutor of a tutorial school)
was charged with two counts of conspiracy to commit MIPO, contrary to common law and section 159A of the Crimes Ordinance
D2 and D3 (former Chinese Language Oral Examiners of the HKEAA)
were each charged with one count of MIPO, contrary to common law and section 159A of the Crimes Ordinance
D4 (wife of D1 and Invigilator of the Chinese Language Oral Examination)
was charged with one count of MIPO, contrary to common law and section 159A of the Crimes Ordinance
D1 was charged with D2 and D3 respectively with conspiracy in March 2016, in Hong Kong, for them, while being the holders of a public office, namely, Oral Examiners appointed by the HKEAA for the 2016 HKDSE Chinese Language Paper 4 (Speaking) Examination, to willfully misconduct themselves without reasonable excuse or justification in the course of their public office by disclosing the examination questions of the 2016 HKDSE Chinese Language Paper 4 (Speaking) Examination to D1.
The HKEAA reminded all Oral Examiners repeatedly that they must preserve secrecy with regard to all matters, including any relevant information, materials and documents, coming to their knowledge and in their possession in performing their duties.
Leaks of examination questions
D1 was a well-known Chinese Language tutor; D2 and D3 were HKDSE Chinese Language Oral Examiners appointed by the HKEAA in 2016 and 2017 respectively; while D4, wife of D1, was Invigilator of the HKDSE Chinese Language Writing Examination appointed by the HKEAA in 2017.
The prosecution alleged that D2 had divulged to D1 questions of the Oral Examination via WhatsApp before or during the examination; right after that, the questions were published by D1 on his FB page. The court heard that during the nine-day examination period, D2 did not serve as Oral Examiner for only two days. On all those seven days when D2 served as Oral Examiner, he divulged the examination questions to D1.
The magistrate believed that any right-minded people would be stunned by D2’s divulgence of the examination questions in which serious malfeasance was involved. She also believed that D1, as “Star Tutor”, must had the basic knowledge of D2’s duty of secrecy. Although no direct evidence was found, the magistrate drawn the only irresistible inference from the relevant WhatsApp messages that D1 and D2 did have an agreement concerning the leaks of the examination questions.
After attending the Examiners’ briefing session, D3 divulged to D1 the marking scheme of the 2017 Oral Examination, including confidential information that was yet to be made public. Having obtained the relevant information, D1 made and uploaded a video on tactics for handling the Oral Examination to his YouTube channel. In the video, D1 not only detailed the information given by D3, but also stated explicitly that the information came from “an official source”.
As in the case of D2, the magistrate considered that D3 was fully aware of his permanent duty of secrecy. To ensure fairness and recognition of the HKDSE, D3 should strictly observe his duty of secrecy that he owed to the general public. Given that D1 was well aware of D3’s role as Oral Examiner, the magistrate did not accept that D3’s divulgence of the confidential information covered in the briefing session was nothing more than an “ordinary teaching exchange”. It was ruled that even if D3 was purely “offering gratuitous assistance to a friend”, his conduct still constituted MIPO as the relevant information was used to make a video to be made public.
As for D4, she was alleged of leaving the examination hall in the course of the examination for sending her husband the examination questions and key points with a mobile phone in the washroom.
Sequence of Events
March 2016
The HKEAA appointed D2 and D3 as external Oral Examiners of the HKDSE Chinese Language Paper 4 (Speaking) Examination
14 March 2016
Examination questions of the first and second sessions were leaked and uploaded to D1’s FB page
16 March 2016
D2, who did not serve as Oral Examiner that day, told D1 via WhatsApp, “Not invigilating today, no question is available,” but right after that, D2 sent out a blurry photo and said, “Probably not available in the next session”
17 March 2016
- Examination questions of the first session were leaked and uploaded to D1’s FB page
- The HKEAA received a non-anonymous complaint against D1 who had uploaded examination questions to his FB page
18 March 2016
Examination questions of the first and second sessions were leaked and uploaded to D1’s FB page
21 March 2016
Examination questions of the first and second sessions were leaked and uploaded to D1’s FB page
22 March 2016
Examination questions of the first and second sessions were leaked and uploaded to D1’s FB page
30 March 2016
The HKEAA sent an email requiring Assistant Examiners of all examination centres to remind all Oral Examiners to switch off their mobile phones after reporting for duty
4 March 2017
After attending the briefing session for Examiners, D3 passed the assessment guidelines, briefing materials and his notes to D1
9 March 2017
D1 uploaded his video on tactics for handling the Oral Examination to his YouTube channel