Shum Kwok Sher: 2002

Final Court of Appeal, Hong Kong. A senior government officer had used his position to provide preferential treatment to a company and its directors to whom he was related. He appealed against his conviction for misconduct in public office.
Held: The court considered the elements of a charge of misconduct in public office as regards the degree of culpability required.
Sir Anthony Mason said: ‘There must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct . . the element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment . . The conduct cannot be considered in a vacuum: the consequences likely to flow from it, viewed subjectively as in R v G will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer . . There will be some conduct which possess the criminal quality even if serious consequences are unlikely, but it is always necessary to assess the conduct in the circumstances in which it occurs.’
Discussing the judgment in Dytham, Sir Anthony Mason said: ‘Read in context, the words suggest that his Lordship was endeavouring to convey the idea that the conduct complained of must be injurious to the public interest and of a sufficiently serious nature to warrant conviction and punishment. The linkage his Lordship makes with the idea of culpability reinforces this view of his lordship’s purpose. In this respect, it is to be noted that Lord Widgery employs the concept of culpability to embrace two different matters, namely first the absence of reasonable excuse and justification and secondly that the conduct complained of may not involve corruption or dishonesty but must be of a sufficiently serious nature.
The second point is that there was no clear previous authority for the proposition that, in any category of case of misconduct in public office the prosecution must prove to the satisfaction of a jury, as elements of the offence, that the conduct of the defendant was calculated to injure the public interest so as to call for condemnation and punishment.’


Sir Anthony Mason


[2002] 5 HKFAR 381


England and Wales


CitedRegina v Dytham CACD 1979
A constable was 30 yards away from the entrance to a club, from which he saw a man ejected. There was a fight involving cries and screams and the man was beaten and kicked to death in the gutter outside the club. The constable made no move to . .

Cited by:

CitedABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
CitedJohnson v Westminster Magistrates’ Court Admn 3-Jul-2019
Public Office Misconduct – Acting As not While
The claimant sought judicial review of a decision to issue a summons against him alleging three offences of misconduct in public office. He was said to have issue misleading statements in support of the campaign leading up to the Referendum on . .
Lists of cited by and citing cases may be incomplete.

International, Crime

Updated: 09 July 2022; Ref: scu.545601