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Tuesday, October 13, 2015, 09:02

Keeping our leaders honest

By Tony Kwok

When former chief executive Donald Tsang Yam-kuen was charged with two counts of the common law offense “misconduct in public office”, it was further proof of the independence in our anti-corruption institution. It showed that no one is above the law.

Keeping our leaders honestHowever, with their usual negativity, opposition lawyers and scholars were quick to condemn the government on three issues. First, the lengthy investigation of three years must be due to political interference; second, the government had failed to amend the law to put the office of CE under the jurisdiction of the anti-bribery law; and third, the case had damaged Hong Kong’s international reputation.  

While it would be sub judice to comment on the specifics, I wish to address these three issues from a professional perspective.

Generally speaking, lengthy corruption investigations often result from uncooperative witnesses, complex financial transactions and problems in obtaining overseas evidence.

Regarding uncooperative witnesses, the Independent Commission Against Corruption (ICAC) can, with a court order, demand the witnesses produce any relevant information and documents, and can even order a witness to appear before an ICAC officer to answer questions under oath. Unfortunately, this statutory power is provided under the Prevention of Bribery Ordinance (POBO). It is only applicable in investigating offenses under that ordinance, but not for common law offenses. Similarly, ICAC officers cannot rely on their statutory powers under the POBO to investigate bank accounts for common law offenses. In short, the ICAC has limited investigative powers in conducting investigations involving common law offenses.

Obtaining overseas evidence depends greatly on whether Hong Kong has signed a mutual legal assistance treaty with the relevant jurisdictions, and unfortunately Hong Kong as yet has no such agreement with the mainland.

It is most unlikely that this investigation was delayed due to political factors. The ICAC is probably the world’s only anti-corruption institution subject to a most stringent system of checks and balances. It must report to the independent Operations Review Committee, among other things, the progress of all investigations over one year. This committee consists of citizens of repute, including “pan-democrats”. They will not tolerate any undue delay in such investigations. The public should have confidence in the committee’s role as the ICAC’s watchdog.

In colonial times, the governor was above the corruption laws. But following the 1997 handover of sovereignty, the POBO was amended and the CE made subject to all bribery offenses except those under Section 3. The CE is covered by all six serious bribery offences including “possession of unexplained assets”. This carries a maximum sentence of 10 years’ imprisonment. The Section 3 offense is a summary offense with a maximum penalty of one year’s imprisonment.

This section states that “any prescribed officers (civil servants) who, without the general or special permission of the CE, solicit or accept any advantage shall be guilty of an offence”. It empowers the CE to make regulations giving permission for the acceptance of certain advantages, and to give special permission in individual cases. Hence it is quite understandable that there is a conflict in including the CE in this offense. While in principle I agree that the CE should be subject to the same restrictions as any other civil servants, I can also understand the complexity of amending the law. Furthermore, there are provision under the Basic Law for the CE’s impeachment for misconduct, and together with the inclusion of most offenses under POBO, we seem to have sufficient safeguards regarding the CE’s integrity.

Interestingly, opposition legislator Dennis Kwok Wing-hang apparently considers this such an important issue that he intends to raise it urgently in the Legislative Council (LegCo). I wonder if he might also propose that all LegCo members should be included in this Section 3 offense?

I disagree that this case will damage Hong Kong’s reputation — quite the contrary. It demonstrates the high moral standards we expect from our public officials. It can only enhance our image. I have visited many countries as an international anti-corruption consultant. But very rarely will you see a head of state being prosecuted for corruption. If it happens, the case usually involves huge financial gains.

“Misconduct in public office” is an antiquated common law offense dating back to 18th-century England. But it is now rarely used there or in other common law jurisdictions. This is because it is not well defined and interpretation relies on case law. Because it is not on the statute books it deprives the public of the right to understand the law. In addition, it goes against the legal principle that a person should not be penalized except under a clear law. To correct this situation, other countries have introduced in its place the specific statutory offence of “abuse of office” which clearly defines the offense. The introduction of such a solution in Hong Kong would ensure fairness to all parties, particularly the defendants. It would also enable the enforcement agencies to exercise their statutory power to investigate the case efficiently. It is time for Hong Kong to “decolonize” this antiquated law.

The author is the former deputy commissioner and head of Operations of ICAC and an international anti-corruption consultant.
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