資深大律師麥高義(McCoy,
Gerard, S.C.) 在2011香港刑事檢控特稿曾撰文，『公職上行為失當 — 誰是公職人員？』
在曾蔭權被起訴後，資深大律師Andrew
Raffell，也曾在2015年10月在南華早報撰文探討其義，，『Hong Kong barrister asks: Just what is misconduct in public office?』
「公職人員行為不檢」是一條奇怪的法律，源於英國13世紀。在英國，這項罪行至少可追溯至1704年。由於年代久遠，其立法原意和發展已湮滅，但這一普通法是重要的，因為沒有任何成文法可以處理類似問題。其針對的是在重要官職或有權勢的人。(註一)
但由於它是普通法，其牽涉甚廣，有泛民律師擔心其殺傷力太大，令到人人自危。
在香港特別行政區 訴 黃連基 [2011] 2
HKC 409 (CFI)一案中。被告受僱於漁農自然護理署，任職司機。他被裁定酒後駕駛罪名成立，判處罰款和取消駕駛各類車輛的資格六個月。他一直沒有把有關定罪向部門報告，並如常執行職務。被發現後，他被控以六項停牌期間駕駛及一項公職上行為失當的罪行。他被裁定全部罪名成立，並被判處合共監禁15個月。
上訴時，高等法院法官推翻公職上行為失當的判罪。法官在結案時指上訴人並非公職人員，因為他受僱的職位低微；作為一名司機，他並無能力影響公眾利益。法官解釋，上訴人並沒有「行使任何權力，向其他人作出指示，或利用其職位，以影響部門履行工作的方式……」
184年前Henly 訴 Lyme Corporation (1828) 5 Bing 91一案中，Wynford勳爵在該案的判詞中寫下：
「那麽，何謂公職? 本席認為，凡被委派履行公務並收取報酬者，不論報酬形式為何，也不論報酬是由官方或其他來源支付，均屬公職人員……」(註二)
在本案開始，資深大律師李柱銘以英國綠皮書的議會特權法和議員在國會內發言不應成為寒蟬效應作抗辯，指法院無權審理，被駁回(註2.1)。法院沿用終審法院審理訂立「公職人員行為不檢」必須證實有下述5項元素進行審理：
(1) 犯案者為公職人員；
(2) 在擔任公職期間或在與擔任公職有關的情況干犯罪行；
(3) 藉作為或不作為而故意作出失當行為，例如故意疏忽職守或沒有履行職責；
(4) 沒有合理辯解或理由；及
(5) 考慮到有關公職和任職者的責任、他們所尋求達致的公共目標的重要性及偏離責任的性質和程度，有關的失當行為屬於嚴重而非微不足道。(註三)
而且，舉證的責任在控方。被告不用為脫罪而證明什麼(註四)。但是吳文遠作了證，法官表示，“為了方便”，考慮了他的證供(註五)。
吳文遠的供辭表示：
『104.我在考慮到所有的證據，並考慮到舉證責任，接納吳文遠的證據顯示：唐女士曾經幫助被告在社民連的新東地區工作。
首先，唐女士協助被告在立法會財務申報的事實，並不表示她不會在社民連方面幫助他。
其次，唐女士是社民連的積極成員，並沒有與其他證據相抵觸。
第三，被告人信任唐女士，不僅在與立法會辦事處有關的事宜；在一定程度上也由下列證據支持，他把第一筆捐款全數轉入她的個人銀行賬戶。』
李柱銘在中途提出無須答辯(no case
to answer)，其理由是根據立法會議事規則，就算議員在開始辯論時沒有申報利益，他也可以在辯論的過程中申報，而控方無法提供那段時期的所有立法會紀錄，所以應立即放人(註6)。但法官指李柱銘的是“錯誤前題”( based
on a false premise)(註7)。 法官表示，由於指控的嚴重性，被告必須答辯(註8)。
最後，法庭注意到控罪中没有包含貪污的指控，法庭未能在毫無合理疑點的情況下信納控方已證明其案，基於疑點利益歸於被告人。梁國雄獲判無罪。
後記
律政司應明白香港法院對“公職人員行為不檢”的舉證要求很高。律政司無法回應所有疑點，證明了它進行了一場政治起訴。
-------全文完-------
附錄
註一
Superficially,
misconduct in public office is a strange offence. It was created by the higher judges
in England, apparently in the 13th century. The full reasons for its creation
and development are lost in the mists of time. But one issue stands out
clearly. There was a need, if one believed in the rule of law, to create an
offence to hold those in positions of power and/or carrying out important
public duties to account for serious wrongdoing and/or misuse of their
positions. There was no statutory offence which would cover such situations. In
Hong Kong it seems this remains the case.
註二
城大事件檢控可否引用「公職人員行為不檢」？
註2.1
49. Mr Lee places reliance on a paper presented
by the UK Government to Parliament on “Parliamentary Privilege” in April 2012
(“the Green Paper”) where it says:
“If the approach of
disapplying the protection of privilege were to be followed, the principal
consequence of this proposal that would need to be mitigated is the creation of
a ‘chilling effect’ to free speech by the possibility of criminal liability
from that speech. A ‘chilling effect’ would take place if any participant in
proceedings were prevented from making whatever contribution to proceedings the
participant felt was appropriate, by a concern that their words would end up
being examined in court. In the view of Sir William McKay, a former Clerk of
the House of Commons, when talking about the possible disapplication of the
protection of privilege when there were allegations of bribery, any chilling
effect would be ‘too high a price to pay for the remedying of a very, very
serious but very rare mischief’.”
Conclusion on
the First Issue
55. For the reasons given above, I reject the
defence argument on the First Issue. I
rule that the present case is not covered by parliamentary privilege and does
not contravene any of the protection provided by the Hong Kong provisions. I rule that this court has jurisdiction to
try this case.
註三
In this regard,
I note that the charge of misconduct in public office would not be made out
unless the misconduct in question was “wilful”, “without reasonable excuse or
justification” and “serious”: see Sin Kin Wah v HKSAR.[48] Applying to the present case, the common law
offence would bite only those cases of non-disclosure of interest by members
which are so serious as to warrant criminal sanction. The seriousness of an alleged misconduct
would very often depend on its legal and factual context: see the recent
comments of the Court of Final Appeal in Chan Tak Ming v HKSAR.[49]
72.
The elements of the common law office of misconduct in public office are
stated by Sir Anthony Mason NPJ in Sin Kam Wah & Another v HKSAR,[65] namely
the offence is committed when:-
(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; and
(5) where such misconduct is serious, not
trivial.
The above elements are re-affirmed in the
recent case of HKSAR v Hui Rafael Junior, supra.
註四
Misconduct in public office
70. I
bear in mind that the burden is on the prosecution to prove the charge beyond
reasonable doubt. The defendant is not
required to prove anything. In the
present case, the defendant chose to give evidence. This is his right and no adverse inference
would be drawn from this against him: Lee Fuk Hing v HKSAR.[63]
註五
102.
I am fully alive that the burden of proof is on the prosecution. However, purely for the sake of convenience I
would first consider the evidence of Mr Ng.
104.
Having considered all the evidence and bearing in mind the burden of
proof, I find that there is some credence in Mr Ng’s evidence that Ms Tong had
helped the defendant in respect of the work of LSD in NTE. Firstly, the fact that the defendant had
claimed reimbursement from LegCo in respect of Ms Tong does not mean that she
had not also helped him, with or without pay, in respect of LSD. Secondly, Mr
Ng’s evidence that Ms Tong was an active member of LSD has not been
contradicted by any other evidence.
Thirdly, that the defendant would trust Ms Tong not only regarding
matters relating to his office in LegCo is to a certain extent supported by the
agreed bank evidence that he had transferred the whole of the proceeds of the
1st Payment from his bank account to her bank account.
註六
NO CASE
SUBMISSIONS
The submissions
82. Mr Lee made a half-way submission after the
prosecution had closed its case. The sole
ground of the submission was that even assuming that the prosecution would be
able to show that the defendant had not registered the 1st Payment pursuant to
Rule 83 of ROP, he could have done it orally at any of the LegCo meetings under
Rule 83A of ROP during the charge period and there is no evidence that he had
failed to just do that, the prosecution having failed to adduce records of all
of the LegCo meetings during that period.
83. In reply, Ms Lai for the prosecution
submitted that Rule 83 and Rule 83A imposed different and separate duties. Furthermore, the defendant should have known
by reading the paper for the motion debate on 22 January 2014 that the matter
about Next Media was to be raised. That
should have alerted him to register his interest pursuant to Rule 83 and also
to make an oral declaration at the meeting pursuant to Rule 83A. However, the defendant failed to do either of
those.
The ruling
84. Having heard counsel submissions, I ruled
that the defendant has a case to answer.
I said that reasons would be given if and when necessary. This, I now do.
83. 個人利益的登記
(1) 除按第(2)款的規定就個人利益作登記的目的外，每名議員不得遲於每屆任期行首次會議當天，以立法會主席批准的格式，向立法會秘書提供其須予登記的個人利益詳情。
(1999年第107號法律公告)
(2) 每名新任立法會議員，須在其為填補立法會議員空缺而成為立法會議員的日期起計14天內，以立法會主席批准的格式，向立法會秘書提供其須予登記的個人利益詳情。
(3) 每名議員須予登記的個人利益如有變更，該議員須在變更後14天內，以立法會主席批准的格式，向立法會秘書提供變更詳情。
(4) 立法會秘書須安排將該等詳情登錄於議員個人利益登記冊內，而該登記冊可供任何人士在辦公時間內查閱。
(5) 在本條中，"須予登記的個人利益"指 -
(a) 公共或私營公司的受薪董事職位，以及如有關公司有一間《公司條例》（第622章）第13條所指的控權公司，亦包括該控權公司的名稱；
(2006年第73號法律公告；2014年第1號法律公告)
(b) 接受薪酬的僱傭關係、職位、行業、專業或職業；
(c) 客戶的姓名或名稱，如以上所提述的個人利益包括議員向客戶提供的個人服務，而該等個人服務是由於其立法會議員身份所引致或以任何方式與該身份有關者；
(d) (i) 議員在其當選為立法會議員的選中，以候選人身份或由任何人代表其收取的所有捐贈，而該等捐贈目的為支付該議員在該選中的選開支；或 (1999年第107號法律公告)
(ii) 作為立法會議員時，來自任何人士或組織的財政贊助，而提供詳情時須說明該項贊助是否包括以直接或間接方式付予該議員或其配偶的款項，或給予該議員或其配偶的實惠或實利；
(1999年第107號法律公告)
(e) 議員或其配偶由於與其立法會議員身份有關或由該身份引致的海外訪問，而該次訪問的費用並非全數由該議員或公費支付；
(f) 議員或其配偶因其議員身份從：
(i) 香港以外的政府或組織；或
(ii) 非香港永久性居民的人士
所收受或代表上述政府、組織或人士所收受的款項、實惠或實利；
(g) 土地及物業；
(h) 公司或其他團體的名稱，如據議員所知，其本人，或連同其配偶或未成年子女，或代表其配偶或未成年子女持有該公司或團體的股份的實益權益，而該等股份的數目超過該公司或團體已發行股份總數的百分之一者。
(2014年第1號法律公告)
83A. 個人金錢利益的披露
在立法會或任何委員會或小組委員會會議上，議員不得就其有直接或間接金錢利益的事宜動議任何議案或修正案，或就該事宜發言，除非該議員披露有關利益的性質。
註七
91. With respect, the sole ground for Mr Lee’s
halfway submission is based on a false premise.
It can readily be seen that Rule 83 and Rule 83A are intended to serve
very different purposes so that the fulfillment of one does not mean the
fulfillment of the other: -
(a) Rule 83 provides for the general duty of a
Member to register all of his “registrable interests” for the purpose of public
inspection. Moreover, there is a formal
requirement that the registration of “registrable interests” has to be done by
use of a form approved by the Chairman. The latter point was highlighted by PW1
in his evidence when he said that if a Member used a form other than the one
approved by the Chairman, the Secretariat would not accept it for registration. PW1 also said that if a Member notified
orally his “registrable interests” to the Secretariat, that oral notification
would also be invalid; and
(b) Rule 83A provides for a Member’s duty to
declare his interest at a meeting before moving a motion or speaking in case of
a situation which may involve a conflict of interest.[95]
註八
Lastly, as regards “seriousness” of the alleged breach/misconduct,
taking into account the constitutional status and responsibilities of the
office of a LegCo Member, the importance of the public trust reposed in
legislators and the right of the public to know whether the speech or deeds of
their representatives in LegCo are motivated by other interests and the
circumstances of the alleged misconduct in the present case, it would be open
to a reasonable jury to find that the misconduct, if established, was a serious
one. For the above reasons, I rule that
the defendant has a case to answer.
Needless to say, whether the defendant is guilty of the offence charged
is a matter to be decided in due course after taking into account all the
evidence.
註九
107.
I consider that the defendant’s conduct is not without suspicion. This is because of the replacement of the
original cashier order (in LSD’s favour) with the subsequent cashier order (in
the defendant’s favour). Even according
to the defence, the defendant had a role to play in causing that replacement. However, having taking all the evidence into
account, I cannot be sure that the latter cashier order was for the defendant
personally as a LegCo Member rather than a payment which he had received on
LSD’s behalf. As such, the benefit of
doubt goes to the defendant. That means
that the prosecution has failed to prove the main plank of its case, namely
that the defendant had committed a misconduct by breaching his duty of
disclosure under Rule 83 of ROP. As a
result, it would be unnecessary for me to consider whether the prosecution has
made out the remaining elements of the offence which are in dispute.
註十
CONCLUSION
108.
As the tribunal of fact, despite the suspicions I have of the
defendant’s conduct, I am not satisfied that the prosecution has proven its
case against him beyond reasonable
doubt. In the circumstances, the
defendant has the benefit of doubt and is acquitted of the charge.
