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?』
在香港特別行政區 訴 黃連基  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。
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：
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)。
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.
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.
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. 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.
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, 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.
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.
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.
NO CASE 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.
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.
(5) 在本條中，"須予登記的個人利益"指 -
(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)
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.
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.
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.
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.