THE COMMON-LAW OFFENCE
Serious and wilful misconduct connected with public office
Misconduct in public office, commonly abbreviated as MIPO, is a common-law offence addressing serious abuse or neglect of public responsibilities. It is not confined to bribery. A public official may face an allegation even where no advantage was offered or accepted if the alleged misuse of office is sufficiently serious and the remaining elements of the offence are established.
The offence is directed at deliberate misconduct rather than mere carelessness, an error of judgment or a minor breach of an internal rule. The prosecution must prove the charge against the individual defendant beyond reasonable doubt.
WHY THE ICAC MAY INVESTIGATE
The ICAC's jurisdiction is important, but not exclusive
The Independent Commission Against Corruption Ordinance requires the ICAC to investigate suspected corruption offences and permits it to examine conduct by a prescribed officer that is connected with or conducive to corrupt practices. An investigation beginning with a corruption complaint may reveal serious misuse of public office even where the evidence does not ultimately establish the payment or receipt of a bribe. In those circumstances, the evidence may support an allegation of misconduct in public office.
The ICAC does not have exclusive authority over every allegation of misconduct in public office. The Police may investigate conduct falling within its own responsibilities, and information may be referred between agencies where appropriate. The facts, connection with suspected corruption and applicable statutory powers determine which agency conducts the investigation.
The Department of Justice independently controls criminal prosecutions in Hong Kong. An ICAC investigation may therefore result in a recommendation or charge, but the decision whether and how to prosecute is made on legal advice and in accordance with the Department of Justice's prosecution responsibilities.
ELEMENTS OF MISCONDUCT IN PUBLIC OFFICE
What the prosecution must prove
Each element must be considered by reference to the particular office, alleged conduct and surrounding circumstances.
A public official
The defendant must be a public official. Whether a person falls within that description depends on the public functions, powers and responsibilities actually entrusted to that person.
Conduct related to public office
The alleged act or omission must occur in the course of, or in relation to, the defendant's public office. Purely private conduct falling outside the public role is not sufficient.
Wilful misconduct
The prosecution must prove deliberate misconduct by act or omission. This may include knowingly abusing an official position, deliberately failing to perform a public duty or wilfully disregarding the risk that the conduct is unlawful.
Without reasonable excuse or justification
The conduct must have occurred without reasonable excuse or justification. The explanation advanced by the defendant must be considered in the factual and operational context in which the decision or omission occurred.
Misconduct sufficiently serious
The departure from the responsibilities of public office must be serious rather than trivial. The court considers the responsibilities of the office-holder, the importance of the public objects served and the nature and extent of the alleged departure from those duties.
Personal benefit is not an element of the offence
The prosecution does not have to prove that the public official obtained a financial or other personal benefit. The offence may be established by sufficiently serious and wilful misuse or neglect of public office even where the alleged conduct produced no personal gain.
EVIDENCE AND LIABILITY
Penalty
A MIPO investigation may examine official duties, declarations of interest, decision-making records, internal policies, communications, financial dealings and the reasons given for the act or omission. A conflict of interest may be relevant, but its existence does not automatically prove criminal misconduct.
The prosecution must prove wilfulness and seriousness. The court must distinguish criminal misconduct from negligence, administrative failure, misunderstanding, an honest error of judgment or conduct supported by a reasonable excuse or justification.
Penalty: A public official convicted of MIPO is punishable under section 101I(1) of the Criminal Procedure Ordinance (Chapter 221 of the Laws of Hong Kong), and is liable to a maximum penalty of seven years' imprisonment and a fine.
HOW MCS CAN ASSIST
Advice during an investigation and any resulting prosecution
MCS can advise a public official or other person involved in an ICAC, Police or regulatory investigation, review the alleged public duties and decision-making framework, prepare the client for an interview and identify documents and contextual evidence relevant to wilfulness, seriousness and any reasonable excuse or justification.
If proceedings are commenced, we can analyse the prosecution evidence, obtain detailed instructions, work with experienced counsel where appropriate and advise throughout the court process.