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Following is a question by the Hon Dennis Kwok and a reply by the Chief Secretary for Administration, Mrs Carrie Lam, in the Legislative Council today (December 5):
Question:
The Report of the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests released in May this year put forward a number of recommendations, including the application of sections 3 and 8 of the Prevention of Bribery Ordinance (POBO) to the Chief Executive (CE). The then Chief Executive-elect had publicly stated that he would seriously consider the various recommendations in the Report and would implement them expeditiously after he took office. However, the Government of the current term has taken office for more than five months but has not yet put forward any specific proposal or bill to amend POBO. In this connection, will the Government inform this Council whether it has decided to accept the recommendation in the Report to apply sections 3 and 8 of POBO to CE; if it has, when it will introduce such a bill to this Council; if not, of the reasons for that?
Reply:
President,
The Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests (IRC), chaired by Mr Andrew Li Kwok-nang, former Chief Justice of the Court of Final Appeal, was responsible for reviewing the present regulatory system for the prevention and handling of potential conflicts of interests concerning the Chief Executive (CE), Members of the Executive Council (ExCo Members) and politically appointed officials (PAOs). The IRC submitted its report (the Report) on May 31, 2012, putting forward a total of 36 recommendations. Covering several major areas, these recommendations include revisions to the Code for Officials Under the Political Appointment System (the PAO Code) currently applicable to PAOs for refining the regulatory regime for the declaration and handling of potential conflicts of interests, and the acceptance of advantages and entertainment; making recommendations to such matters as CE's observance to related provisions in the PAO Code and the declaration system applicable to ExCo Members; as well as extending the application of sections 3 and 8 of the existing Prevention of Bribery Ordinance (POBO) to CE.
As the public has high expectations on the integrity of public officials, it is therefore crucial to put in place a sound system to prevent and handle potential conflicts of interests involving public officials. The Administration had, on the day when the Report was released, expressed that it agreed with the recommendations therein in principle, and would consider how to follow up and implement individual recommendations. The incumbent CE, on the day the Report was released, made a public statement in his capacity as CE-elect that he welcomed the Report and would consider its various recommendations seriously and seek to implement them as soon as possible after he took office.
In fact, the Administration has implemented nearly half of the recommendations, including the amendments to PAO Code on administrative arrangements for setting out requirements for the handling of conflicts of interests and other matters involving PAOs. For instance, the amended PAO Code makes it clear that in deciding whether to accept any advantage, PAOs shall, apart from observing the relevant legal provisions, take into account matters such as the frequency or excessive nature of the advantage, the relationship between the official and the offeror, and the character or reputation of the offeror. In addition, separate and specific provisions and guidelines are set out with a view to reminding PAOs to have regard to public perception before accepting entertainment, consider whether the entertainment will lead to a conflict of interest with their official duties, cause them to take upon any improper obligations, or make others to believe that their judgment will be compromised. The amended PAO Code also sets out that CE shall, in accordance with proper procedures, decide on cases of alleged breaches of the PAO Code relating to conflicts of interests by PAOs and the related mechanism for sanctions. The amended PAO Code applies to PAOs of the current term of Government.
Although the PAO Code does not apply to CE, CE subscribes to the spirit behind the IRC's recommendations, i.e. CE must observe the highest standards of conduct, set a good example for all and observe rules at least as vigorous as those applied to PAOs and the civil service in order to maintain public trust in the integrity of the Government. CE has also indicated that he would observe the rules in the PAO Code where applicable to ensure that no actual or potential conflict arises between his public duties and private interests. As a matter of fact, upon assuming office, CE has made a declaration on his financial and other interests in accordance with the PAO Code. The open part of his declaration has been uploaded to the web for public inspection.
The Administration is actively following up the remaining recommendations, including the formulation of guidelines on how CE should consider and handle conflict of interest matters concerning PAOs, the review of the control regime for post-office outside work of PAOs during the interim review of the Political Appointment System to be conducted later, and consider amending POBO to the effect that sections 3 and 8 of the Ordinance will be applicable to CE. Comparing to the generally completed revision of the PAO Code and the drafting of the relevant guidelines in the pipeline, the implementation of the recommendations on legislative amendments requires particularly great prudence.
Regarding the recommendations on the amendments of POBO, the Report proposes to amend section 3 of the Ordinance to the effect that it will be a criminal offence for CE to solicit or accept any advantage without the general permission or special permission of a statutory independent committee to be set up specifically for this purpose. The Report also makes a series of recommendations on the composition and operation of the proposed independent committee.
In addition, the IRC proposes to amend section 8 of POBO, making it a criminal offence for any person to offer any advantage to CE, without lawful authority or reasonable excuse, where the person has any dealings with the Government.
The Administration has to exercise great care as the above proposals involve legislative amendments. The above proposals will be examined in detail, including how they can be implemented as far as operation is concerned and the possible impact on the existing POBO. For instance, if the existing section 8 of POBO is extended to the effect that it is directly applicable to persons offering advantage to CE, members of the public may contravene POBO when they, on account of their having certain dealings with the Government, offer modest gifts or souvenirs to CE during district visits as normal gestures of courtesy or goodwill. To this end, the IRC recommends that the breach of the provisions concerned should not include any person offering any advantage to CE where the advantage offered to CE is covered by the general permission given to him. As there was no precedent in POBO regarding the above exemption recommended by the IRC, we have to carefully examine the proposal to ascertain whether it will impact on the effective implementation of section 8 of the existing POBO and its entirety in order to avoid any conflict with the well-established regulatory regime currently applicable to prescribed officers including PAOs and civil servants.
To conclude, in considering the way forward for the implementation of the IRC's recommendations on the amendments to POBO, the Administration should examine all relevant issues in a holistic and thorough manner. Despite the new Administration's extremely heavy workload during the initial five months of its term, we have attached great importance to the IRC's recommendations, and are conducting a detailed study on how to implement the recommendations on amending POBO. The Administration shall consult the Legislative Council on the study findings once there is further progress.
Thank you, President.
Ends/Wednesday, December 5, 2012
Issued at HKT 14:40
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