Hong Kong barrister asks: Just what is misconduct in public office?

What can a 17th century chief justice of England; an 18th century magistrate and a government accountant; a 19th century mayor of Lyme; a 20th century police constable; several 21st century police officers, prison officers and nurses; a British cabinet minister and a bishop of Kent possibly have in common with former Hong Kong chief executive Donald Tsang Yam-kuen?

If you live in Hong Kong, it probably does not take too much thought to work out it has something to do with allegations of misconduct in public office. Some of the above were acquitted or, in the case of the prison service nurses, it was held that they did not hold a "public office" in law. Judicial officers were also protected from prosecution. Only if the latter indulged in bribery or behaved very badly would they be convicted of a crime and be punished. Merely being incompetent or fulfilling their judicial roles badly or not in accordance with the wishes of those in power or the majority of citizens were not grounds for criminal sanction.

Superficially, misconduct in public office is a strange offence. It was created by the higher judges in England, apparently in the 13th century. The full reasons for its creation and development are lost in the mists of time. But one issue stands out clearly. There was a need, if one believed in the rule of law, to create an offence to hold those in positions of power and/or carrying out important public duties to account for serious wrongdoing and/or misuse of their positions. There was no statutory offence which would cover such situations. In Hong Kong it seems this remains the case.

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The chief justice, one Scroggs, was indicted for being "oppressive" and for being biased in his sentencing. He was not convicted. The magistrate, Sainsbury, was also protected. The government accountant, Bembridge, was convicted of misconduct because he failed to take steps to attempt to recover a sum of money owed to the government. The 20th century police officer, Dytham, was convicted because he had stood by and had not attempted to intervene when some nightclub bouncers beat a man to death. These last two cases show clearly that failing to do one's duty as a public officer can lead to conviction.

The 21st century police and prison officers were convicted after Operation Elveden, an investigation of the relationship between journalists working for News International and the officers. Several were convicted of selling information to the journalists. Strangely, most of the journalists paying them were acquitted of aiding and abetting them. Just last week, Peter Ball, former Bishop of Lewes, pleaded guilty to several counts of misconduct because he had abused his position to seduce or pressure several young men into having sexual relations with him. Similarly, Bunyan, a community support worker, was imprisoned for having sexual relations with several vulnerable women.

However, not all sexual misconduct cases involving those holding public office lead to the commission of a criminal offence, as former US president Bill Clinton can testify. The British cabinet member, John Prescott, admitted having an affair with one of his secretaries while holding office as a government minister. He was investigated for misconduct in public office. However, no charge followed. No doubt it was thought that this was not an abuse of the position of being a government minister leading to misconduct in public office. Doubtless it was also accepted that the secretary had not been pressured but had fallen for the famous sexual allure of the lord.