While rules prevent Hong Kong officials from taking gifts, the government is reluctant to put the city's leader under the same tight legal leash
PUBLISHED : Friday, 09 October, 2015, 2:28am
UPDATED : Friday, 09 October, 2015, 1:34pm
Donald Tsang and his wife outside court on Monday. Photo: K. Y. Cheng
Hong Kong has an impeccable reputation for fighting graft but the most powerful law it has to go after officials glides over the most important person in government: the chief executive.
The lacuna - or what a former top judge has described as "a fundamental defect" - in the Prevention of Bribery Ordinance (POBO) has reignited debate this week as the Independent Commission Against Corruption took former chief executive Donald Tsang Yam-kuen to court.
On Monday, it charged him with two counts of misconduct in public office over the rental lease of a Shenzhen penthouse and an alleged dealing with an interior designer.
But Tsang, who was in office from 2005 to 2012, was not prosecuted for going on private jet flights and yacht trips - jaunts that the media exposed and which he later said he paid for, but at a heavy discount. The Department of Justice merely described them as "certain trips" he made and said he had broken no law in enjoying such perks.
Prosecutors weighed four factors to arrive at the decision: the available evidence, the applicable law and relevant provisions in the Prosecution Code, and independent advice from overseas Queen's Counsel.
Here's the rub: there are clear rules against gifts - but they do not apply to the chief executive. Under Section 3 of the POBO, the solicitation and acceptance of an advantage without the chief executive's permission by a category of "prescribed officers" including civil servants and politically appointed officials is a crime. But the giver of that permission himself is not covered by this section.
Under Section 8, anyone who offers an advantage to a "prescribed officer" while having dealings with that officer's government department is committing an offence. Again, the chief executive is exempt.
"Advantage" is defined to include gifts, loans, passages (sea, air and overland journeys), any other service or favour, but excludes "entertainment", defined as the provision of food or drink - lunches, dinners and the like - and any accompanying performance.
Section 4 does cover the chief executive - but only up to a point. It "has the added nexus requirement that the advantage solicited or accepted was on account of the public servant's acts in his official capacity", noted legal scholar Professor Simon Young, of the University of Hong Kong.
In short, "if the payment is made to the public servant for a reason and purpose wholly unconnected to his official capacity then it would not be possible to prove the Section 4 offence," he added.
Since the 1997 handover, repeated attempts have been made to rectify the colonial arrangement that exempted the top official from the anti-bribery law's provision on the acceptance of advantages. So far, the government has not committed to a timetable on when to subject the top gun to the same legal tight leash that applies to the 160,000 civil servants below him.
Former justice minister Elsie Leung Oi-sie has backed calls for a rethink on whether anti-bribery laws should fully apply to the top official. "There should be a more detailed study on this question to see if it can be done. You can see society is getting more transparent and no one is above the law," said Leung, who is also a vice-chairwoman of the Basic Law Committee under the National People's Congress.
In the United Kingdom, the Ministerial Code stipulates that the prime minister, and other ministers, cannot accept gifts that would or might appear to place him under an obligation. The same principle applies if gifts are offered to a member of their family. Similar laws exist in Singapore and Canada.
British ministers also should not normally accept free travel, with exceptions for an overseas government offering transport without undue obligation.
Pre-handover, governors had been exempted from the ordinance - as with many other pieces of legislation - as they represented the Crown.
Shortly before Tsang's prosecution, former civil service minister Joseph Wong Wing-ping argued that the colonial exemption in Hong Kong "had damaged the rule of law and conveniences graft for the chief executive".
"In the 20-odd years between the inception of the ICAC and the handover, the four governors were above the Prevention of Bribery Ordinance," he wrote in an article for the Hong Kong Economic Journal last month. The specious assumption was that they had "high personal morals" and were supervised by a "democratic and clean sovereign state".
Earlier this week, the government's Administration Wing said a revision of the ordinance involved "constitutional, legal and operational implications" and needed to be handled prudently.
Civic Party legislator Dennis Kwok said he did not see any constitutional implications and believed it was a matter of political will.
But a 2006 report by a Legislative Council subcommittee suggested why the constitution would need redress. It noted the chief executive was appointed by the central government and the Basic Law did not confer any power on the Hong Kong government to appoint or remove him.
"Any proposal to extend the general standard of bribery prevention applicable to prescribed officers under [anti-bribery law] for application to [chief executive] must take into account [the chief executive's] unique constitutional position," it said.
There were attempts to change the law in 2008, when the government was updating the POBO. Then Civic Party lawmaker Margaret Ng Ngoi-yee suggested including the chief executive in Sections 3 and 8.
The administration expressed strong opposition. Then chief secretary Henry Tang Ying-yen said it would not be appropriate to prohibit citizens from giving the chief executive a simple gift.
To this, Ng replied: "The chief secretary keeps giving us examples of nice old ladies knitting sweaters for the chief executive as a gift and not property tycoons giving him a residence ... Or his wealthy friends who think the only way for a chief executive to travel is via private jet, and present him with a plane."
Prophetic though that may now sound, Tsang faced several allegations of accepting advantages near the end of his term in 2012. A committee set up then to look into rules to prevent conflicts of interest and chaired by former chief justice Andrew Li Kwok-nang later suggested subjecting the chief executive to sections 3 and 8.
But the report had its own take on the possible constitutional implications that the government referred to this week.
"It fully recognises the unique constitutional status of the office of the chief executive", Li's committee said, noting that as the head of the HKSAR, he was accountable to the central government and HKSAR.
But Li's committee added that it saw "no justification for exempting the chief executive from the statutory regime to which politically appointed officials and civil servants are subject".
"Indeed the high constitutional status of the chief executive makes it all the more important that he sets a good example for all, especially politically appointed officials and the civil service which he leads," it said.
It recommended setting out that it was a criminal offence for the chief executive to solicit or accept any advantage without the general or special permission of a statutory independent committee, which should consist of three members appointed jointly by the chief justice and the president of the Legislative Council.
It should also be a criminal offence for any person to offer any advantage to him, without lawful authority or reasonable excuse, where the person has any dealings with the government, the committee said.
As chief executive-elect, Leung Chun-ying said he planned to study the recommendations seriously and implement them as soon as possible. This week he declined to be pinned down on an exact deadline for a new law.
But Exco member and former ICAC commissioner Fanny Law Fan Chiu-fun, who steered Leung's election campaign, said the current government was "so clean" that a new law - though in principle desirable - would "not make a big difference".
"I must emphasise the officials have been very cautious," Law said. "Even handicrafts prepared by students at some public events needed to be avoided sometimes."
Handicrafts are quite different from heavy discounts for flights on private jets.
As Andrew Li committee repeatedly stated in its report, the chief executive "has a duty to conduct himself with total propriety so as to command public confidence and respect".
"The chief executive should not be above the law which applies to politically appointed officials and civil servants."
Additional reporting by Ng Kang-chung
Justice officials say there is no 'unwritten convention' protecting a Hong Kong chief executive from prosecution
Former justice secretary Elsie Leung Oi-sie's recent assertion that an unwritten convention exists to protect a sitting chief executive from prosecution is being challenged by the Department of Justice.
Leung, also vice-chairwoman of Beijing's Basic Law Committee, made the remarks after ex-leader Donald Tsang Yam-kuen was charged for misconduct in public office.
She said regional stability would be jeopardised if a prosecution could be easily lodged.
Asked by a Commercial Radio host whether there was an unwritten rule not to subject a sitting chief executive to prosecution, she said "yes".
In response to Leung's comment, a justice department spokesman told the Post that "the chief executive, whether incumbent or former, does not enjoy any immunity from criminal prosecution" and "shall abide by the laws" of the special administrative region.
The spokesman added that the department handled each and every case of suspected criminal conduct in strict accordance with the applicable law, relevant evidence and the Prosecution Code. He added that it did so in a fair, impartial and independent manner, irrespective of the background, identity, social status or political stance of the person involved.
A justice official, speaking on condition of anonymity, noted that Chongqing provincial chief Bo Xilai was prosecuted whilst in office and said Leung seemed to be making an "excuse" for the position of chief executive.
Legal-sector lawmaker Dennis Kwok called Leung's suggestion "mere bluffing" and said it had no basis in the mini-constitution.
University of Hong Kong legal scholar Eric Cheung Tat-ming expressed shock over Leung's remarks and said the Basic Law explicitly stated that everyone "is equal before the law".
Certain countries, including Singapore, the United Kingdom and the United States, grant at least limited immunity to their highest elected leaders.
In a 1982 case, the US Supreme Court recognised presidential immunity for official acts. The court based its decision to remove the threat of lawsuits on a need to allow presidents to act freely in discharging their duties.
But this rationale, the top American court said in 1997, shall not apply to unofficial conduct, allowing Paula Corbin Jones to pursue her sexual-harassment lawsuit against then-president Bill Clinton.
Stuart Lau
http://m.scmp.com/news/hong-kong/law-crime/article/1865401/who-keeps-chief-check-legal-defect-anti-bribery-ordinance
