Parkside’s Benson Tsoi SC and Joshua Wang (together with Joyce Lai), instructed by Haldanes, acted for the successful appellant solicitor before the Court of Appeal, whose conviction was quashed on the day of the hearing on 3 December 2024, with the costs of the appeal awarded to the appellant.
The appellant, a practising solicitor, was charged with one count of misconduct in public office. It was alleged that she, as a lay member of the Medical Council, misconducted herself by (a) disclosing to a SOCO member (PW4) the complainant (PW3)’s personal particulars and his complaint about a doctor, (b) causing PW4 to arrange a meeting between PW3, PW4, and the appellant, during which she solicited a retainer from PW3 to pursue a civil claim against the doctor; and (c) accepting instructions from PW3 to act for him in the civil claim.
The appellant was convicted in the District Court, despite the Judge finding particular (b) to be unproven, leaving only particulars (a) and (c), and that the appellant acted out of altruistic concern for PW3 in disclosing his details to PW4 in particular (a).
The Court of Appeal quashed the appellant’s conviction on the basis that the “seriousness” element of the offence as set out in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 was not satisfied.
The judgment began by analysing the law on “seriousness” at §§57-72, observing that (1) a critical requirement of the offence is the wilful and serious abuse of an official’s public office that involves more than just a mere oversight or a lapse of judgment, (2) the context and consequences of the misconduct when assessing seriousness are important, (3) the threshold for seriousness was high, and (4) the motive with which a public officer acts may be a relevant consideration.
The Court of Appeal then followed R v Chapman [2015] 2 Cr App R 10 in holding that the proper approach to assessing “seriousness” is to consider firstly, whether the misconduct is worthy of condemnation and punishment, and secondly, whether objectively the provision of the information by the officeholder in deliberate breach of his or her duty has the effect of harming the public interest (§73).
On the facts, the Court of Appeal held that the “seriousness” element of the offence was not satisfied and that the Judge failed to appropriately take into account the following material matters: (1) the appellant did not arrange the contact by PW4 of PW3 to tout for legal work from PW3; (2) the appellant provided PW3’s personal information to PW4 out of concern for PW3’s wellbeing because of the condition of ENS, and to help him with any claim against the doctor; (3) PW3 had given ex post facto consent for his personal information to be conveyed to PW4; (4) the Privacy Commission investigated the disclosure by the appellant of PW3’s personal information and merely issued a reprimand to her; (5) the use of the confidential information was a single incident; and (6) the appellant had recused herself from any further involvement in PW3’s complaint with the Medical Council (§100).
The Court of Appeal also accepted the appellant’s submissions that a breach of confidentiality would usually need to be accompanied by an improper purpose or motive to be sufficiently serious, which was absent in this case, and that the appellant’s disclosure with good intentions did not warrant criminal sanction even if it constituted an error of judgment. (§§99, 103-107).
The Court of Appeal judgment ([2025] 2 HKLRD 333; [2025] HKCA 255) can be found here.
