The anti-corruption law has chief executive included
During the colonial days, before 1997, it had always been an anomaly that the governor of Hong Kong was not subject to the anti-corruption legislation in Hong Kong. Amazingly, the Bar Association then as well as the “pan-democrats”, various academics, and politicians never raised any issue with such anomaly, despite the observation that many governors returned to Britain with a lot more suitcases than when they arrived!
After Hong Kong’s return to China, the first chief executive Tung Chee-hwa promptly ordered the amendment of the anti-corruption legislation to cover the CE within the provision of the Prevention of Bribery Ordinance (POBO).
The POBO was subsequently amended to include the CE in all the key corrupt offenses, in particular, Section 4 (offering/ accepting advantage in return for abuse of the CE’s position), Section 5 (offering/ accepting advantage in return for assisting the procurement of government contract) and Section 10 (possession of assets disproportionate to his official emoluments). All these offenses carry a maximum of seven to 10 years imprisonment and a fine of HK$1 million 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”.
Section 3 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!
Thus the impression that the opposition parties have been trying to portray to the public that the CE is above the anti-corruption law is most misleading. The existing law makes clear that the CE is subject to all key corruption offenses under the POBO except Section 3.
As I recall, when the POBO was first introduced in 1971, many human rights advocates attacked the Section 3 provision as a draconian law, as there is no need to prove the corrupt motive of a civil servant, but simply the fact that he had accepted an advantage, which can be a very small gift, and it would be sufficient to have him convicted. Subsequently the governor issued the acceptance of advantage (governor’s permission) notice to restrict the offenses to only four types of advantages, namely gift of value above a certain amount (subject to adjustment); a loan of value above a certain amount; free travel passages and discounts.
Around the world, only Hong Kong and recently South Korea, have such an offense in their statute books. This particular offense, however, is not included as requisite offenses under the United Nations Convention Against Corruption. Hence it can be said it is not the end of the world if a jurisdiction does not legislate such an offense. The main purpose of Section 3 is to prevent government officials from being tempted to commit more serious offense through a softening-up process, such as small gifts. This seems unlikely in the case of the CE. Indeed ICAC prosecutions under Section 3 offenses are very rare.
However, it is indeed desirable that the CE should be subject to the same standard as all government officials. In 2012, an independent review committee chaired by former chief justice Andrew Li Kwok-nang recommended the creation of a statutory independent committee, consisting of three members appointed jointly by the chief justice and the president of the legislature, which would grant permission for the chief executive to solicit or accept any advantage as per Section 3.
However, it seems that there is a constitutional issue under such a proposal. According to the Basic Law, the chief executive is appointed and can be removed by the central government and “shall be accountable to the Central People’s Government and the Hong Kong Special Administrative Region”. It seems constitutionally unacceptable that the CE has to seek permission from a committee appointed by the heads of the legislature and the judiciary, every time he or she receives a small souvenir in their frequent ceremonial attendances. There is also an apparent conflict of interest as the CE is responsible for the appointment of the head of judiciary.
But does it mean that the CE is above the law? I don’t think so. Firstly if there is evidence that he has received any advantage in return for granting unauthorized favors, he can be prosecuted under the key provisions of POBO. Furthermore, the CE definitely fits in the definition of public officials under common law and he is therefore subject to common law offenses of bribery and misconduct in public office. It should be pointed out that there is already detailed guideline laid down in the CE office governing the acceptance of advantages. Hence if there is a clear breach of such regulations, it should be sufficient to trigger the investigation and prosecution under the common law offense of misconduct in public office.
Additionally, under Article 73(9) of the Basic Law, the CE can also be impeached for gross misconduct.
In conclusion, the CE is not above the anti-corruption law and the inclusion of the CE in the Section 3 offense, though desirable, is not essential to monitor the CE’s integrity.
The CE definitely fits in the definition of public officials under common law and he is therefore subject to common law offenses of bribery and misconduct in public office.