In its editorial headlined “Bribery exemption for Hong Kong leader must end despite complexity” published on Dec 7, the South China Morning Post criticized Chief Executive Carrie Lam Cheng Yuet-ngor’s recent announcement that she had dropped the proposal to extend the relevant anti-bribery laws to cover the CE. It said that it would give the impression that “the city’s leader continues to be exempt from anti-bribery laws” and “create the perception that she is above the law”. Nothing could be further from the truth!

The principal anti-corruption law in Hong Kong is the Prevention of Bribery Ordinance (POBO), Chapter 201. It created four specific bribery offenses for public servants. After Hong Kong’s return to China in 1997, the first CE, Tung Chee-hwa, promptly ordered the amendment of the law to cover the CE, so as to address the anomaly in the colonial era where the governor of Hong Kong was not subject to any anti-corruption legislation at all!

As a result, the CE is now covered in all key corruption offenses, namely, Section 4 (accepting advantage in return for abuse of position), Section 5 (accepting advantage in return for assisting in the procurement of government contracts) and Section 10 (possession of assets disproportionate to his official emoluments). All these offenses carry a maximum of 7-10 years imprisonment and a fine of HK$1 million (US$129,000) for each count.

The only offense which is not included is the Section 3 offense. The law reads “any prescribed officer (i.e., civil servant), who without the general or special permission of the CE, solicits or accepts any advantage shall be guilty of an offense”. This is a summary offense which has a maximum penalty of 12 months’ imprisonment and a maximum fine of HK$100,000. The offense is only slightly more serious than “careless driving”, which incurs a maximum of six months imprisonment!

In 2003, when the United Nations passed the resolution endorsing the “UN Convention Against Corruption”, which establishes the standard of anti-corruption systems internationally and lists out the requisite corruption offenses every jurisdiction should include, the Section 3 type of offense is not included. In fact, as far as I am aware, there are no heads of state who are subject to restrictions similar to Section 3.

Having said that, the Section 3 offense certainly has its merit. It prevents civil servants from being tempted through a “softening up process”, such as a small gift or favor. From experience, that seems less likely for senior officials as ICAC prosecutions under Section 3 are very rare.

Indeed, the reason the CE is not included in this offense concerns potential conflict of interest and constitutional considerations. Under the current legislation, Carrie Lam is the one who can give permission to civil servants to accept an advantage. But who should she seek permission from before accepting an advantage herself? Under the Basic Law, the CE is the head of the HKSAR and “shall be accountable to the Central People’s Government”. So should the CE seek permission from the central government every time she accepts an advantage? It seems very impractical! And how about the suggestion by the 2012 Independent Review Committee chaired by former Chief Justice Andrew Li Kwok-nang that the CE has to seek permission from a statutory independent committee, appointed jointly by the chief justice and president of the Legislative Council, on any acceptance of advantage? Clearly this is in breach of the constitutional position of the CE, and indeed there is a conflict of interest as the chief justice is appointed by the CE. In today’s political climate, it is not inconceivable for this new committee to be paralyzed by rowdy opposition members playing to the gallery. And just imagine the absurdity of the CE accepting a bouquet of flowers in an official ceremonial function and having had to seek permission to accept, but turned down by the committee, and the CE having had to return the bouquet to the ceremony organizer! It’s clearly an inappropriate and impractical proposal!

I understand that there is already a well-established administration system in the CE office that all gifts accepted by the CE have to be properly registered and disposed according to a set procedure. In the unlikely event that the CE wished to retain the gift for a personal memorial purpose, it would have to go through an official valuation and paid for accordingly by the CE.

Hence if there is a clear case of the CE abusing her position in accepting any advantages as defined in Section 3, she would be liable for prosecution under the Common Law offense of “Misconduct in Public Office”. This common law offense indeed embraces all sorts of official misconduct of the CE. Indeed, former CE Donald Tsang Yam-kuen was prosecuted under this offense.

In addition, under Article 73(9) of the Basic Law, the CE can also be impeached for gross misconduct. And the central government would definitely not turn a blind eye to any misconduct of the CE as it has the right to terminate the CE’s appointment at any time. Therefore, any suggestion that the CE is above laws combating corruption is grossly exaggerated, inaccurate and misleading!

The author is an adjunct professor of HKU Space, and a council member of the Chinese Association of Hong Kong and Macao Studies. He is also a former deputy commissioner of ICAC and an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily.