CHAN, TAK-MING PADDY v. HKSAR

FAMC No. 22 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 851 OF 2009)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  This case involves a number of reasonably arguable questions of law worthy of the Court of Final Appeal’s attention. They are these. First, where a charge of misconduct in public office is pleaded on the basis of official data being abstracted for private use, is it permissible to find the necessary seriousness upon, or at least partly upon, the private use to which such data was actually put, such use not being specified in the charge? Secondly, to what (if any) extent is a significant personal benefit to the defendant a part of the element of seriousness in the definition of the offence of misconduct in public office? Thirdly, is anything which is not trivial to be regarded as serious for the purposes of that definition? Fourthly, is it appropriate in circumstances like these for the intermediate appellate court to apply a test of recklessness when the trial had proceeded on the issue of intention?

2.  Whether or not the conviction can be affirmed even if these questions of law, or some of them, are answered in the applicant’s favour cannot be decided by the Committee at this stage.  It is for the Court to decide at the appeal.

3.  Leave to appeal is granted on the “point of law” limb of s.32(2) of the Court’s statute, but not on the “substantial and grave injustice” limb of that subsection.

Mr Gerard McCoy SC and Ms Nisha Mohamed (instructed by Messrs Richards Butler) for the applicant

Mr Edmond Lee (of the Department of Justice) for the respondent