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Following is a question by the Hon Wong Yuk-man and a written reply by the Chief Secretary for Administration, Mr Henry Tang, in the Legislative Council today (July 14):
Question:
It was reported that an Amenities Assistant III of the Leisure and Cultural Services Department borrowed $200 from his subordinate because he was in financial difficulties, and was later prosecuted by the Independent Commission Against Corruption (ICAC) for borrowing money without the general or special permission of the Chief Executive. The assistant concerned admitted that he had committed an offence of soliciting advantages in the capacity of a prescribed officer and the magistrate made a rare order that he be discharged absolutely. Regarding ICAC's prosecution policy and its establishment in relation to prosecution, will the Government inform this Council:
(a) whether the authorities have assessed if the aforesaid case will have impact on the credibility of the Department of Justice (DoJ) and ICAC; if an assessment has been conducted, of the outcome; if not, the reasons for that;
(b) of the measures and guidelines put in place at present to avoid DoJ and ICAC from overdoing in rectification when making decisions to institute prosecutions; and
(c) whether the authorities have assessed the appropriateness of ICAC's establishment in relation to prosecution work; if an assessment has been conducted, of the outcome; if not, the reasons for that?
Reply:
President,
As the question relates to the prosecution of a corruption case, I set out below a consolidated reply from the Independent Commission Against Corruption (ICAC) and the Department of Justice (DoJ).
(a) The statutory duty of ICAC is to investigate corruption and related offences. As to whether or not a case is to be prosecuted, the decision is made by DoJ. In reaching a decision in any case as to whether or not to prosecute and if so, what offences, DoJ will fully consider all the evidence and the surrounding circumstances to see, firstly, whether there is a reasonable prospect of conviction and secondly, whether it is in the public interest to prosecute. In the case referred to in the question, the offence was prosecuted under Section 3 of the Prevention of Bribery Ordinance (Cap. 201).
In order to ensure prosecution is made under Section 3 only when appropriate, DoJ prosecutors are obliged to exercise due care and to consider the role the Section plays in protecting the civil service from the suspicion of corruption and in resisting those who would provide advantages as part of the insidious process of softening up or compromising public servants.
In deciding whether to prosecute under Section 3, prosecutors are expected to examine the duties of the civil servant, the contact he has with the donor of the advantage and the intention of that donor in offering the advantage. Prosecutors should consider whether the evidence, viewed objectively, reveals that a civil servant has solicited or accepted an advantage in a situation where he must know he is compromising himself in his capacity as a civil servant. This would be the case in a conflict of interest situation or where the civil servant suspect is dealing with staff over whom he has supervisory responsibility. Such situations are ones where it may be appropriate to make prosecution under Section 3, subject always to the overriding principle that a prosecution is in the public interest.
(b) ICAC investigates all corruption-related reports without favour or prejudice in accordance with the statutory power conferred upon the Commission. It would seek legal advice or consult the Operations Review Committee on important issues and operational matters. As for the DoJ, while it would not be appropriate to go into the detailed considerations leading to the decision to prosecute in a particular case, the advice to prosecute was made taking into consideration the factors set out in the reply to part (a) above and in accordance with the prosecution guidelines.
(c) ICAC follows prescribed government policies, regulations and procedures in conducting periodic reviews on the establishment of the Commission. In preparing the 2009 Draft Estimates, ICAC's review indicates that the establishment of ICAC, including its Operations Department, for 2010/11 should remain unchanged. That said, ICAC would continue to monitor its manpower position.
Ends/Wednesday, July 14, 2010
Issued at HKT 14:19
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