Chapter 8
Court ruling
Sentence
In May 2020, the court has made its decision.
D1
(tutor of a tutorial school)
was found guilty of two counts of conspiracy to commit MIPO and was sentenced to a total of 14 months’ imprisonment
D2 and D3
(former Chinese Language Oral Examiners of the HKEAA)
both charged with MIPO, were convicted andsentenced to eight months’ and five months’ imprisonment (suspended for two years) respectively
D4
(wife of D1 and Invigilator of the Chinese Language Writing Examination)
was acquitted of MIPO
The magistrate pointed out in her judgement that although no evidence suggested that D1 had given D2 and D3 any benefits, D1 had been reaching out to both of them actively for official confidential information. It is evident that if D1, who was renowned as “Star Tutor”, could obtain and publish the official information on social media at the earliest opportunity, his popularity and reputation would be fortified, thus bringing a lot of benefits to his business.
The magistrate also reprimanded the defendants for undermining the fairness and impartiality of the public examination system. She added that the court should prevent the offences from reoccurring in the future by sending a deterrent message to the community.
D2 and D3, being public officials at the material time, willfully misconducted themselves in the course of their public office without reasonable excuse. Their misconduct was serious, but not trivial, as divulgence of the examination questions constituted an abuse of power and violation of duties.
As for D4, the magistrate pointed out that her power or discretion as Invigilator of the HKDSE and her conduct seemed to be at quite some distance away from the abuse of power, duty and discretion. Her misconduct was by no means trivial, but its seriousness did not meet the threshold for conviction. The magistrate remarked that her final escape was but a fluke, and her application for costs was thus refused.
D1 and D2 appealed against refusal of a stay of proceedings, convictions and sentences; and D4 appealed against refusal of her application for costs. D3 appealed against conviction, but he withdrew his appeal on 18 June 2020.
Determination of the appeals
On 20 May 2021, the Court of First Instance of the High Court handed down a judgment on the appeals.
D1 and D2’s appeals against refusal of a stay of proceedings and convictions were dismissed and the original convictions upheld.
The High Court allowed D1’s appeal in part and sentenced him to a total of 14 months’ imprisonment, including nine months’ and 6.75 months’ imprisonment for Charges 1 and 2 respectively, with five months of Charge 2 to run consecutively with the sentence of Charge 1. Having carefully considered the overall situation and the totality of sentence that the trial magistrate had taken into account, the Court considered that, for the two charges for which D1 was convicted, a total sentence of 14 months was not manifestly excessive, but within a reasonable range and was not inconsistent with the totality principle of sentencing. Although maintaining a total sentence of 14 months meant that the sentence to run consecutively would be longer than that stated in the former order (from four months to five months) and the sentence for Charge 2 would take up a higher proportion, the judge was convinced that a total sentence of 14 months was appropriate based on his assessment of the overall circumstances and D1’s criminal liability.
D2’s appeal against sentence was dismissed and the original sentence of eight months’ imprisonment was upheld.
Regarding D4, the court held that the magistrate had placed too much emphasis on the fact that D4 had committed an offence under section 15 of the HKEAAO, for which she could no longer be prosecuted, and erred in considering the exercise of her discretion. For this reason, D4’s appeal against refusal of costs was allowed. The court ordered costs of the original trial to D4, adding that if no consensus could be reached between the parties, costs should be taxed according to the law.

During the appeal, the prosecution and the defence argued if D2, D3 and D4 were public officials.
The defence case
The defence argued that the trial magistrate had erroneously found that D2 and D3 were the “public officials” prescribed under MIPO and that their conduct in leaking the examination questions and marking scheme did not amount to an abuse of power and was not serious enough to constitute “misconduct” under the offence.
The defence added that under section 14 of the HKEAAO, “The Authority is not the servant or agent of the Government and does not enjoy any status, immunity or privilege of the Government.” It was therefore the defence case that HKEAA was not part of the Government and hence its executive power was not public power. Employees of the HKEAA were not civil servants, not to mention that D2 and D3 were just independent contractors appointed by the HKEAA. The duo, who worked as Oral Examiners as independent contractors, were responsible for assessing the performance of candidates in an accurate, fair and impartial manner, but that did not mean they owed any general or different duties to the public other than the candidates, including the duty to ensure fairness of the examination. That being the case, their conduct was, at most, a breach of contractual duty of secrecy that they owed to the HKEAA instead of misconduct.
The prosecution case
The prosecution pointed out that the work of the HKEAA was closely related to public interest as reflected in its inclusion as a public body in the Prevention of Bribery Ordinance. Above all, since the HKDSE was integral to Hong Kong’s education system, it had an immense impact on the public. D2 and D3, as Oral Examiners, played an important role in the HKDSE. Apart from assessing the performance of the candidates in a fair and accurate manner, they also shouldered the associated duty of secrecy and the responsibility of ensuring fairness and impartiality of the HKDSE, as well as be accountable to the general public. If an Oral Examiner performed his duties improperly, the fairness and recognition of the HKDSE would be compromised, and the impact might even extend to the entire education system.
The prosecution further argued that the essence of MIPO was in the abuse of power. When it came to deciding if a person was a public official, what mattered was whether that person held a position that fulfilled the public object in which he was conferred with power, discretion or responsibility to serve the public interest, and whether his alleged misconduct involved the abuse of such power or discretion.
The ruling
The judge remarked that when considering if a person was a public official, one should focus on whether the powers and responsibilities entrusted to him by virtue of his capacity closely related to some important public interests, and whether the conduct of the accused involved any abuse of the powers, duties and responsibilities entrusted to him to exercise in the public interest.
The judge added that it was a reasonable public expectation that Oral Examiners should assess the candidates fairly and that they would not misconduct themselves by leaking important information as this was an important public interest. As such, the duties of an Oral Examiner were entrusted to him in view of the aforesaid public interests, and his misconduct in divulging the information in question was therefore an abuse of power and a breach of duty.
Besides, D2 and D3, by virtue of their duties, obtained the examination questions or the confidential marking scheme prior to the start of the examination. The ways in which Examiners exercised their powers in assessing candidates’ performance and maintaining the fairness and impartiality of the examination had a far-reaching impact on the candidates.
Having considered the matters raised by the trial magistrate in her judgment, the court concurred with the original verdict in finding that both D2 and D3 were public officials involved in the present offence, and therefore the grounds of appeal in this respect were not substantiated.