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Following is a question by the Hon Paul Tse and a written reply by the Chief Secretary for Administration, Mrs Carrie Lam, in the Legislative Council today (February 26):
Question:
At present, the Commissioner of the Independent Commission Against Corruption (ICAC) (the Commissioner) is appointed by the Central People's Government on nomination and report by the Chief Executive (CE) and the Deputy Commissioner of ICAC (the Deputy Commissioner) is appointed by CE. It has been reported that a former Deputy Commissioner has pointed out that since CE is involved in the appointment of the Commissioner and the Deputy Commissioner, in the event that ICAC launches an investigation against CE, the scenario akin to "a subordinate investigating his/her superior" may arise and give rise to a conflict of roles. He has therefore suggested that the appointment of these two posts should be entrusted to an independent authority. Besides, he has pointed out that, due to difficulties in gathering evidence, it is difficult for the existing anti-corruption legislation to effectively combat corruption acts in the grey area, such as the adoption of "policies benefitting friends" by public servants so as to accept or solicit intangible, deferred, inter-generational (e.g. the children of public servants) advantages. In this connection, will the Government inform this Council:
(1) whether it will make reference to the aforesaid views of a person well versed in ICAC's operation and entrust the appointment of the Commissioner and the Deputy Commissioner to an independent authority; if it will, of the relevant arrangements and the implementation timetable;
(2) whether it has studied and made reference to the anti-corruption legislation in overseas countries for the purpose of amending the Prevention of Bribery Ordinance (Cap. 201) to prevent public servants from capitalising on their powers and functions to benefit their family members; and
(3) of the reasons why the recommendations on amending the Prevention of Bribery Ordinance made by the "Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests" chaired by the former Chief Justice of the Court of Final Appeal have so far not been implemented; whether an implementation deadline can be set; if so, of the details; if not, the reasons for that?
Reply:
President,
By virtue of section 12(b)(ii) of the Independent Commission Against Corruption Ordinance (ICACO) (Cap. 204), it shall be the duty of the Commissioner of the Independent Commission Against Corruption (ICAC) to investigate any suspected offence under the Prevention of Bribery Ordinance (POBO) (Cap. 201) as committed by any person (including the Chief Executive (CE)).
ICAC has established procedures for handling corruption complaints. Upon receiving a corruption complaint, regardless of the target of the complaint, as long as there is sufficient information for follow-up, the Commissioner of ICAC is required to investigate the complaint independently and impartially, in strict accordance with ICACO and established procedures. Legal advice will also be sought from the Department of Justice during the process when necessary. The progress and outcome of all investigations conducted by ICAC will be reported to the independent Operations Review Committee and subject to its scrutiny. Under the existing checks and balances which have proven to be effective, no person, including the Commissioner of ICAC, will take the liberty of terminating an investigation.
Section 30(1) of POBO prohibits any person who knowing or suspecting that an investigation in relation to a person, without lawful authority or reasonable excuse, discloses to that person under investigation that he is the subject of a corruption complaint/investigation or details about a corruption complaint/investigation against him. Therefore, if the Commissioner of ICAC disclosed to CE that CE was subject to an investigation being conducted by ICAC or any details about the investigation without lawful authority or reasonable excuse, the Commissioner of ICAC might commit an offence under this section.
My reply to the three parts of the Honourable Paul Tse's question is as follows:
(1) Pursuant to Article 57 of the Basic Law, a Commission Against Corruption shall be established in the Hong Kong Special Administrative Region (HKSAR). It shall function independently and be accountable to CE.
Pursuant to Article 48 of the Basic Law, CE nominates and reports to the Central People's Government for appointment of all principal officials, including the Commissioner of ICAC. It is stipulated in Article 61 of the Basic Law that the principal officials of HKSAR shall be Chinese citizens who are permanent residents of HKSAR with no right of abode in any foreign country and have ordinarily resided in Hong Kong for a continuous period of not less than 15 years.
Under section 6 of ICACO, CE may appoint a Deputy Commissioner on such terms and conditions as he may think fit.
CE handles the appointments of the Commissioner and Deputy Commissioner of ICAC by strictly adhering to the Basic Law and ICACO, and on the basis of credentials, experiences, abilities and personal integrity so that ICAC can exercise its statutory functions effectively and uphold Hong Kong's core value of probity and fairness. Given that such appointments are made in accordance with the laws and that the existing appointment mechanism has proven to be effective, there is no plan for changes.
(2) Under section 4(2) of POBO, any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts advantage as an inducement to or reward for or otherwise on account of his performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant, may commit an offence of "soliciting or accepting advantage by a public servant".
It is stipulated in the Interpretation under section 2 of POBO that a person solicits an advantage if he, or any other person acting on his behalf, directly or indirectly demands, invites, asks for or indicates willingness to receive, any advantage, whether for himself or for any other person. In addition, a person accepts an advantage if he, or any other person acting on his behalf, directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any advantage, whether for himself or for any other person.
Moreover, according to the common law, a public officer may commit the offence "misconduct in public office" if, in the course of or in relation to his public office, he wilfully misconducts himself by act or omission, without reasonable excuse or justification, and where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which he serves and the nature and extent of the departure from those responsibilities.
As such, there are laws in Hong Kong to prevent public officers from using their official positions to pursue interests for themselves or others.
(3) The Government attaches great importance to and has implemented most of the recommendations put forward by the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests, including revising the Code for Officials under the Political Appointment System and setting guidelines for handling conflict of interests concerning Politically Appointed Officials. As for the recommendations to amend POBO, we must exercise care and examine them in detail and in a holistic manner, taking into full consideration how they can be implemented as far as operation is concerned and what impacts they may have on the existing POBO. After the study has been completed, we will consult the Legislative Council on the findings at the appropriate time.
Ends/Wednesday, February 26, 2014
Issued at HKT 15:16
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