Will Hong Kong Revisit the offence of misconduct in public office by legislation in 2017?
The common law offence of misconduct in public office is an important tool utilised to diminish corruption in Hong Kong, in the absence of anti bribery legislation.
The current ingredients which make out the offence of misconduct in public office in Hong Kong were formulated by the Court of Final Appeal in Sin Kam Wah v HKSAR (2005) 8HKCFAR 192 and are when a public official;
(i) in the course of or in relation to his public office
(ii) willfully misconducts himself, by act or omission, for example, by willfully neglecting or failing to perform his duty (deliberate as opposed to accidental)
(iii) without reasonable excuse or justification
(iv) where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the office- holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
The Court of Final Appeal held that to constitute the offence of misconduct in public office;
(i) willful misconduct which has a relevant relationship with the defendant’s public office is enough.
(ii) misconduct otherwise than in the performance of the defendant’s public duties may have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial.
In 2000 Mr. Kwok Man-wai (Kwok), the Ex-Deputy Commissioner & Head of Operations of ICAC initiated the debate, by stating that the essential ingredients of this common law offence were vague. He advocated codification of the offence to enable public awareness of the offence amongst civil servants.
This debate has recently become a live issue again in Hong Kong, not simply with the recent and, now, successful prosecution of the former Chief Executive, Donald Tsang but also because there are many who advocate codification of the offence of misconduct in public office whilst nevertheless wishing to retain the offence in principle.
Hong Kong will now be watching developments in the UK closely to decide whether the effectiveness of this legislation can be increased by codifying the Common Law.
The UK consultation commenced as a result of the current law having developed in a piecemeal manner, resulting in making it difficult to ascertain with absolute certainty where the boundaries of the offence and each of its elements lie.
In R. v Chapman (Scott Derek) (2015) EWCA Crim 539 the English Court of Appeal recently acknowledged: “This is without doubt a difficult area of the criminal law. An ancient common law offence is being used in circumstances where it has rarely before been applied”.
By way of example, high profile allegations, investigations, prosecutions of the offence, and appeals in the UK, in relation to its interpretation have been numerous. These include the following:
- An ongoing prosecution of former MEP Nikki Sinclair at Birmingham Crown Court in relation to alleged irregularity in expenses claims.
- The former Bishop of Gloucester, Peter Ball, who was convicted of misconduct in public office in relation to relationships with trainee priests between 1977 and 1992.
- Between 2014 and 2015, prosecutions took place of the suspects arrested as part of the Metropolitan Police Investigation Operation Elveden. These concerned payments allegedly made by journalists to a variety of public officials for information to be used in news stories. In 2015 the Court of Appeal, led by Lord Chief Justice Thomas, was required to consider the ambit of the offence in the case of This resulted in a Crown Prosecution Service (“CPS”) review of those cases and subsequently discontinuance of various prosecutions against journalists.
- Members of health care professions have been prosecuted for different types of misconduct in situations which have not previously been
- PC Keith Wallis was convicted of misconduct in public office arising out of the “Plebgate” affair. Wallis had submitted a false statement to the investigation as to whether Andrew Mitchell MP had been abusive to police officers on duty at Downing Street.
- Ali Dizaei, former Metropolitan Police Commander, was prosecuted for the offences of perverting the course of justice and misconduct in public office, between 2010 and 2012.
- The arrest of Damian Green MP and Home Office civil servant Christopher Galley in relation to leaking official information in 2010.
- In May 2009 an unknown person in the parliamentary fees office leaked House of Commons expenses records to The Telegraph newspaper. This information led to the prosecution in 2010 of a number of members of the House of Commons and House of Lords for false accounting offences. The Metropolitan police declined to investigate the person responsible for the leak.
Currently, in the UK the elements of the offence of misconduct in a public office are; 
(i) a public officer acting as such;
(ii) who wilfully neglects to perform his duty and/or wilfully misconducts himself;
(iii) to such a degree as to amount to an abuse of the public’s trust in the office holder; and
(iv) without reasonable excuse or justification.
The Law Commission released its first set of recommendations in January 2016, Misconduct in Public Office: Issues Paper 1 – The Current law. The purpose of the document was to set out the remit of the current law and problems associated with it. In summary the findings were;
(i) it was clearly a matter of legitimate public interest to hold public officials accountable via the criminal law for misconduct committed in connection with their official duties;
(ii) However, the boundaries of the current offence are fundamentally unclear;
(iii) It is unclear as to what form of mischief the current offence targets;
(iv) “Public office” lacks clear definition yet is a critical element of the offence. This ambiguity generates difficulties in interpreting and applying the offence.
(v) The types of duty that may qualify someone to be a public office holder are uncertain. Whether it is essential to prove a breach of those particular duties is also unclear from the case law.
(vi) An “abuse of the public’s trust” is crucial in acting as a threshold element of the offence, but is so vague that it is difficult for investigators, prosecutors and juries to apply.
(vii) The fault element that must be proved for the offence differs depending on the circumstances. That is an unusual and unprincipled position.
(viii) Although “reasonable excuse or justification” appears as an element of the offence, it is unclear whether it operates as a free standing defence or as a definitional element of the offence.
(ix) It is essential to identify the harms and wrongs that arguably justify criminal sanction
(x) The current offence should be repealed;
(xi) Abolition without replacement would leave unacceptable gaps in the law;
(xii) It is necessary to define a rigorous definition of “public office” for the purpose of two possible statutory offences to replace the vague common law definition of public office.
The possible new offences proposed both seek to prevent harm to the public interest;
(i) Option 1 involves a new offence addressing breaches of duty that risk causing serious harm, when committed by particular public office holders (those with duties concerned with the prevention of harm). This option is based on the wrongs of beach of trust and negative misgovernment.
(ii) Option 2 involves a new offence addressing corrupt behaviour on the part of all public office holders. This option is based on the wrongs of breach of trust, abuse of position for personal advantage, causing detriment to another and abuse of state power.
Implementation of the proposed offences would reduce the number of legal challenges at trial and appeal as to whether the defendant was in fact in public office.
The question now is what precise form will these statutory offences now take? The Law Commission launched their second consultation on 5th September 2016. They are now in the process of analysing the responses.
No doubt those in Hong Kong and the UK who advocate a change to the current legislation will be eagerly awaiting the Law Commission’s final report setting out the proposed final options for the law of Misconduct in a Public Office.
 Paragraph 29
 Attorney General’s Reference (No 3 of 2003)