Thanks to new conventions, HK's once cutting-edge anti-graft laws look hopelessly backward
BRYANE MICHAEL
PUBLISHED : Tuesday, 24 November, 2015, 12:20am
UPDATED : Tuesday, 24 November, 2015, 12:20am
Inside the ICAC headquarters in North Point. Photo: Felix Wong
Until the mid-2000s, Hong Kong's Prevention of Bribery Ordinance represented the gold standard for anti-corruption laws worldwide. The law criminalised bribery and other types of corruption. It also required government officials to declare their assets and provided reasonably tight definitions of corruption.
Passed in the early 1970s, the ordinance and the law establishing the Independent Commission Against Corruption represented models copied around the world. For example, the World Bank sent former ICAC officials around the world to evangelise about the Hong Kong model. Yet, times have changed and the ordinance has failed to keep up.
In the 1990s and 2000s, a wave of conventions encouraged countries to adopt more than just Hong Kong-like provisions. The United Nations Convention Against Corruption represents the best known. It requires countries to criminalise corruption and encourages states to allow their citizens to sue in case they lose money from graft. The convention puts in place an extensive system of mutual aid for countries looking to grab corrupt officials and their allies abroad.
China brought its domestic legislation into line with the UN convention in 2011 through amendments to its Criminal Code and its Anti-Unfair Competition Law. At least on paper, China's anti-corruption laws look more modern than Hong Kong's.
Failure to criminalise foreign bribery represents the largest gap in the Hong Kong law. Under US and UK law, paying bribes anywhere in the world can be punished at home. Not in Hong Kong. Unlike the US Department of Justice or the UK Serious Fraud Office, our Department of Justice can turn a blind eye to bribery abroad committed by Hongkongers.
Such "extraterritorial" application of our laws could make Hong Kong a shining example in highly corrupt jurisdictions. If handled correctly, the move could also help the ICAC cooperate with its counterparts on the mainland.
In Europe, we increasingly see "multiple countries, one system" in fighting crime and corruption. In China, including Hong Kong and Macau, we see "one country, multiple systems." By taking a tougher stance and even allowing foreigners to use our courts to try corruption-related cases, Hong Kong could become the preferred forum for tackling corruption.
In OECD countries, criminal laws increasingly make companies responsible for crimes like bribery. Under both US and UK law, courts - and prosecutors - can make companies pay fines for the bribe-giving behaviour of its agents. Under UK law, companies bear responsibility for "failing to prevent" the corrupt activities of their owners, managers, employees, suppliers and other partners.
Such laws help free up the ICAC to work with companies on their prevention, detection and punishment systems - rather than play cat-and-mouse with their employees.
The Legislative Council will need to amend the Prevention of Bribery Ordinance to bring it up to the standards agreed by the international community in the UN Convention Against Corruption. Research shows that fighting corruption helps a country's business in the long run. And bringing the fight against corruption into the open could actually raise the Treasury's tax revenues as well!
Dr Bryane Michael is a fellow at the University of Hong Kong's Centre for Public and Comparative Public Law
http://m.scmp.com/news/hong-kong/law-crime/article/1882409/letter-law-its-time-internationalise-hong-kongs-anti
