LCQ3: Application of sections 3 and 8 of the Prevention of Bribery Ordinance
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Question:
The Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests submitted its report to the Government in May 2012, recommending the enactment of legislation to provide that the Chief Executive (CE) must obtain permission from a statutory independent committee prior to the acceptance of advantages, so as to make the system under section 3 of the Prevention of Bribery Ordinance (POBO) applicable to CE. In addition, the incumbent CE, who has just assumed office, has undertaken in her election manifesto that she “shall resolve as soon as possible those constitutional and legal issues aiming at amending the Prevention of Bribery Ordinance to extend the scope of Sections 3 and 8 to cover the Chief Executive”. In this connection, will the Government inform this Council whether it will introduce into this Council within this year a bill to amend POBO; if it will 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 regulatory system for the prevention and handling of potential conflicts of interests concerning the Chief Executive (CE), Members of the Executive Council and politically appointed officials (PAOs). The IRC submitted its report in May 2012 (the Report), putting forward a total of 36 recommendations, which include extending the application of sections 3 and 8 of the Prevention of Bribery Ordinance (Cap.201) (POBO) to CE.
The IRC considered that CE, as the head of the Hong Kong Special Administrative Region (HKSAR) and the HKSAR Government, must observe the highest standards of conduct, set a good example for all and observe rules at least as rigorous as those applied to PAOs and the civil service in order to maintain public trust in the integrity of the Government.
The Government understands that the public has high expectations of the integrity of public officials. It has therefore been actively following up the IRC’s recommendations to enhance the robustness of its system for preventing and handling potential conflicts of interests involving public officials. Hitherto, the Government has implemented over half of the recommendations in the Report, including amending the Code for Officials under the Political Appointment System to set out the requirements and guidelines for PAOs’ handling conflicts of interests and accepting advantages and entertainment.
According to section 3 of POBO, any “prescribed officer” (including PAO and civil servant) who, without CE’s permission, solicits or accepts any advantage shall be guilty of a criminal offence. Also, section 8 of POBO stipulates that any person who, without lawful authority or reasonable excuse, while having dealings with a government department or a public body, offers advantages to a public officer (including “prescribed officer”) employed in that department or public body, shall be guilty of an offence.
Under the Basic Law, CE has a unique constitutional status in HKSAR. In accordance with Article 43 of the Basic Law, CE shall be the head of HKSAR, and shall be accountable to the Central People’s Government and HKSAR in accordance with the provisions of the Basic Law. As indicated by the IRC in its report, any regime that gives permission to CE for soliciting and accepting advantages shall take into account the unique constitutional status of the office of CE. The IRC recommended that an independent committee, with members jointly appointed by the Chief Justice and the President of the Legislative Council, should be set up specifically to give general or special permission to CE for soliciting and accepting advantages. This, however, may not be commensurate with CE’s unique constitutional status.
Furthermore, given that CE is the head of HKSAR Government, amending section 8 to make it applicable to CE could have the effect of making it an offence potentially for any persons having dealings of any kind with any government department to offer an advantage to CE. Therefore, the IRC recommended that the reach of the statutory provisions would not include any person offering an advantage to CE where such acceptance of the advantage by CE is covered by a given general permission. But again, if such general permission is to be granted by a specialised independent committee, it may not be commensurate with CE’s unique constitutional status.
Hence, amending POBO to extend the application of sections 3 and 8 to CE may have implications on the provisions about the political structure of HKSAR and CE’s constitutional status in HKSAR as prescribed in the Basic Law. The relevant constitutional and legal requirements as well as operational issues should be studied in a holistic manner. Based on the above principles, the Government has been studying the related issues carefully in accordance with the constitutional framework set out in the Basic Law and the current legal requirements.
The incumbent CE agrees that a good system should be in place to maintain and strengthen public confidence in the integrity of the Government. In her election manifesto, she has mentioned resolving as soon as possible the related constitutional and legal issues aiming at amending POBO to extend the scope of sections 3 and 8 to cover CE. Upon completion of the study on such constitutional and legal issues, the Government will initiate the legislative procedure as early as possible.
Since the study is still ongoing, the Government does not have a specific date for introducing the amendment bill on POBO at this stage.
Thank you, President.
Ends/Wednesday, July 5, 2017
Issued at HKT 15:44
Issued at HKT 15:44
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