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Misconduct in Public Office

Clear the Air says: Denise Yue is wrong, yet again. Misconduct in public office , a common law offence, does apply to Tsang , and Henry Tang also, unless the two did not hold public office and were not paid from Government funds ?


Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

Definition of the offence

The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 (‘AG Ref No 3’).

The offence is committed when:

    • a public officer acting as such
    • wilfully neglects to perform his duty and/or wilfully misconducts himself
  • to such a degree as to amount to an abuse of the public’s trust in the office holder
  • without reasonable excuse or justification

Read the Legal opinion attached

Cap 221   Section: 101I Punishment of indictable offences 10 of 2008 09/05/2008

(1) Subject to subsections (2) and (5), where a person is convicted of an offence which is an indictable offence

and for which no penalty is otherwise provided by any Ordinance, he shall be liable to imprisonment for 7 years and a fine. (Amended 12 of 1986 s. 2; 50 of 1991 s. 4(1); 49 of 1996 s. 6; 10 of 2008 s. 15)

read what the ICAC says

1.                      Sir Anthony Mason NPJ stated:

“… to quote the words of PD Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p 315: ‘The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.’  It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.”[1]

2.                      The centrality of abuse of the public office in the sense discussed above is reflected in Sir Anthony Mason NPJ’s encapsulation of the elements of the offence:

“In my view, the elements of the offence of misconduct in public office are:  (1) A public official;  (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4)  culpably misconducts himself.  A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or

discretion which he has by virtue of his office or employment without reasonable excuse or justification.”[2]

3.                      The reformulation runs as follows:

“The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.”…/FACC000003_2011.docx

Civil service chief faults Tsang for accepting gifts

But Denise Yue, who played role in Leung Chin-man’s job fiasco, says anti-graft rules leave boss in the clear

Tanna Chong  SCMP
Jun 21, 2012

The outgoing secretary for the civil service yesterday called Chief Executive Donald Tsang Yam-kuen’s acceptance of gifts from tycoons “misconduct”, but said her boss had not broken any rules because none applied to him.

Denise Yue Chung-yee’s remarks came in response to a question at a farewell media session about the recent uproar over Tsang’s rides on private yachts and jets and his bargain deal to rent a luxury penthouse in Shenzhen.

The scandals have exposed gaps in the anti-graft law, which currently does not apply to the chief executive. An independent commission to review the situation chaired by former chief justice Andrew Li Kwok-nang said earlier this month that the exception was “totally inappropriate”.

“I agree [Tsang’s dealings] were misconduct,” Yue said. “But he did not violate any rule since there was no mechanism whatsoever until Andrew Li Kwok-nang proposed one.”

Yue, who turns 60 in October, will end 38 years of government service on July 1, when she and Tsang leave to make way for the administration of chief executive-elect Leung Chun-ying.

Reflecting on the Tsang case, Yue recalled the conflict of interest controversy row surrounding her decision in 2008 to let former housing chief Leung Chin-man work for a developer with whom he had official dealings. She called the case “a milestone” that taught her a lesson.

In 2004, Leung Chin-man, who was then housing director, played a key role in the sale of a government housing estate to a subsidiary of New World Development at a discount. After retiring four years later, he drew fire when the company gave him a job, a move some saw as a deferred reward for helping the sale.

The scandal led last year to restrictions on post-civil-service employment for government officials. Yue said it was important for government officials to avoid both real and perceived conflicts of interest.

“Apparently there was a gap between my balance and public perception between an individual’s right to work and public interests,” said Yue, who has been leading the city’s 160,000 civil servants since January 2006. “It was a milestone and I learnt my lesson.”

Yue said what she would miss most after retirement was the sense of satisfaction she got from her job, but joked about her retirement plans.

“Maybe I will regain that sense of satisfaction by watching early-bird movies, which are offered at a discount,” Yue said.

Yue has no plans to take up a paid job herself. “Even if I do you do not have to worry about me. I can recite the post-service rules to its last word.”

[1] At §69.

[2] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §84.

Download PDF : 1203_EN_Is_Donald_Tsang_Guilty_of_the_Offence_of_Misconduct_in_Public_Office

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