廉政 Probity in Governance
香港，勝在有ICAC? Zero Tolerance?
【The establishment of Independent Commission Against Corruption (ICAC)】
Hong Kong's cleanliness today concerning corruption is not god-given. In the 1960s and 70s, as Hong Kong's population and the manufacturing industry grew exponentially, so as corruption. At the time, public resource could not meet public demand. Hong Kong citizens often had to bribe to obtain public services they were entitled to. For example, patients have to give cleaning ladies in hospital "tips" to get basic services such as water and bedpans. Corruption among the police was particularly rife. Bribed police officers tolerated all kinds of crimes, directly endangering the lives of citizens. Hong Kong people's discontent with corruption reached a boiling point in 1973 with the Godber case. The Governor at the time Sir MacLehose announced the establishment of ICAC according to suggestions made by the investigation committee.
The ICAC was therefore established in 1974. Its mission is to combat corruption using a "three-pronged approach" of law enforcement, prevention and education, including investigating public and private sectors' personnel, and ensuring all public elections are conducted fairly, openly and honestly. The ICAC was independent of all government departments and reported directly to the Governor. Apart from that, Hong Kong government pursued the policy of using high salary to deter corruption, which meant giving civil servants a handsome salary and generous benefits to increase the cost attached to corruption, making corruption less of a palatable option.
【The value of cleanliness】
In the ICAC's early days, it received many more complaints directed towards government departments than the private sector. By the mid-1980s, the ICAC successfully exposed cases of syndicated corruption in multiple officials, setting a precedence of probity and zero tolerance. Cleanliness, lawfulness and fairness became one of Hong Kong's proudest core values. Hong Kong's low corruption rate gives Hong Kong an economic edge too. Since 1995, Hong Kong has ranked highly on the Corruption Perceptions Index released by Transparency International. Hong Kong has also been chosen by The Heritage Foundation as the freest economy numerous times according to the Index of Economic Freedom, one of the criteria of which is Government Integrity. Former Chief Secretary for Administration Anson Chan stated that Hong Kong's comprehensive and strict system of monitoring public servants and businesses gives both domestic and overseas corporations confidence when investing in Hong Kong. Quoting former Chairperson of the Democratic Party Emily Lau, "if ICAC is dead, Hong Kong follows." Our sentiments exactly.
【The ICAC after the handover】
Article 57 in the Basic Law guarantees the continued independent operation of the ICAC, but following July 1, 1997 ICAC will report directly to the Chief Executive instead of the Governor. The English version of the legal document, however, stirred up controversy. In the English version, the ICAC simply became Commission Against Corruption. With the word "Independent" being taken out from the name of the commission, a lot were worried that the commission's independence was being corroded.
Despite that, legislation such as the Prevention of Bribery Ordinance gives great investigatory power to the ICAC, including checking suspects' bank accounts, personal documents and assets. According to Article 10 of the Prevention of Bribery Ordinance, if the Chief Executive or public servant maintains assets not commensurate with his official emoluments, he can be guilty of an offence unless he can give a sufficient explanation to the Court. Other than that, Article 14 obliges ICAC informants or suspects to give away all information related to the case in their possession. These two Articles contradict the two principles of Common Law: the presumption of innocence and the right to silence. It is not surprising that these two Articles are viewed as the ICAC's most potent weapons and the symbols of its power.
There are multiple checks on the special authority that the ICAC possesses. Except reporting directly to the Chief Executive, the ICAC has to report regularly to the Executive Council too. The Legislative Council also has the right to summon the Commissioner (head of the ICAC) to its meetings to answer questions about the policies and operation of the ICAC, or even grant or rescind power. That the Secretary of Justice independently exercises right of prosecution places a further check. Apart from that, the government has set up four advisory councils, the members of which are respectable members of society appointed by the Chief Executive; they give suggestions to the ICAC on the general direction and specific investigations. The Legislative Council member of the Democratic Party Lam Cheuk-ting pointed out that advisory councils has the power to check all complaints made to the ICAC, and even influence the decision to start or end a certain investigation. The public can also file complaints to the ICAC Complaints Committee.
However, the success of the ICAC does not lie solely on checks and balances. It thrives on Hong Kong citizen's confidence and support. But in recent years, the credibility of the ICAC came under question. The prosecution of several former high-ranking officials also created the impression that Hong Kong's cleanliness is under unprecedented attack. We will review the challenges faced by the ICAC in the past 20 years.
The past five years have seen controversies that have shaken public confidence in the ICAC. In Transparency International’s Corruption Perception Index, Hong Kong’s ranking has continued to drop from 2012 to 2015, from the 14th to the 18th, but ithas risen to the 15th last year. Although the index reflects only the perception of corruption, the drop in ranking shows Hong Kong people’s concerns about Hong Kong’s cleanliness. Below are events that have affect the public perception since the handover:
1. 許仕仁 / 郭氏家族 Raphel Hui and the Kwoks
In 2007, Sun Hung Kai Real Estate Agency Ltd and its subsidiary bought a piece of land in Tai Wai and built 816 residential units with the approval of Town Planning Board. In 2012, the ICAC noticed a discrepancy between the sum of money Sun Hung Kai paid and the actual cost, and decided to sue the former Chief Secretary of Administration Raphael Hui, Joint Chairmen of Sun Hung Kai, Thomas Kwok, Raymond Kwok, Thomas Chan, and the former Senior Vice President of Hong Kong Exchanges and Clearing Kwan Hung-san. All were guilty except Raymond Kwok, and were sentenced to 5-7 years in prison. Raphael Hui was sentenced to 7 and a half years in prison when he was found guilty of misfeasance in public office--he received a total bribery of 19 million during his time in office.
Raphael and the Kwoks case is recognised the biggest corruption case in Hong Kong’s history. No only were the sums involved huge, the people convicted were prominent figures in politics and business. This case severely damaged Hong Kong’s reputation in cleanliness.
2. 曾蔭權案 Donald Tsang
As the former Chief Executive, the highest ranking government official, Donald Tsang should have served as Hong Kong people’s model. However, in 2017, after five years of investigation by the ICAC, the High Court finally found him guilty of misfeasance in public office. He is serving a jail time of 20 months. In 2012, Tsang approved a digital broadcasting license to Wave Media Limited (now DBC). At around the same time, Tsang and a shareholder of Wave Media, Bill Wong, were making the rent of a luxury apartment in Shenzhen, the developer of which is a company of Wong’s. Besides, Tsang’s wife received a bribery of HK$350,000 from another shareholder of Wave Media, Sir David Li. Tsang failed to declare the multiple conflicts of interest while dealing with Wave Media’s license application, thus resulting in the final ruling.
3. 湯顯明事件 Timothy Tong
In 2003, the Audit Commission exposed that while Timothy Tong was the Commissioner of the ICAC, he overspent in an overseas function. More controversies surfaced when the media exposed that Tong spent government’s money on gifts, overseas visits and dinner parties, among them the most controversial incident was spending over HK$720,000 on liquor as a welcoming gifts for mainland Chinese officials. The Public Accounts Committee of the Legislative Council issued the severest reprimand in history, using the term “denouncement” for the damage Tong’s actions brought to public confidence in Hong Kong’s cleanliness. The ICAC also began its investigation in May. However, the Secretary of Justice, after consulting the Queen’s Counsel of the United Kingdom, conceded that there was not sufficient evidence to find Tong guilty, therefore decided not to prosecute Tong.
4. 2016年立法會選舉 2016 LegCo Election
In the 2016 Legislative Council election, the Liberal Party’s New Territories West candidate Ken Chow Wing-kan announced withdrawal from the race during a televised election forum nine days before the polling day, for the fear of “people close to him will pay a heavy price”. He disclosed later that he was approached by a middleman who threatened him to withdraw from the election for a sum of money, which was double the amount of his election expenses. A lot of political parties later wrote to the ICAC that if the allegations were real, the Elections (Corrupt and Illegal Conduct) Ordinance Section 8 could have been violated. The ICAC announced the end of investigation last month due to the lack of evidence.
Furthermore, the ICAC launched a crackdown in April, arresting 72 people accused of vote-rigging in the information technology functional constituency in the poll. The suspects accepted remuneration and registered themselves as voters in the IT functional constituency. The investigation revealed that the suspects came from various backgrounds, including students, clerks, drivers and housewives, and they should not have qualified to vote in the IT functional constituency.
5. 梁振英UGL爭議 CY Leung
In 2011, a company that the former Chief Executive Leung Chun-ying was a shareholder of, DTZ, was selling orders, and an Australian engineering corporation UGL Limited was offering to acquire DTZ. According to Australian media, Leung allegedly reached a deal with UGL. In return for a sum of HK$500,000, Leung would push for the acquisition of DTZ, guarantee that he will not directly harm UGL’s interests for 24 months after he steps down from office. Leung did not declare the deal, prompting the investigation of the ICAC.
Part of the controversy involves the first female head of the ICAC, Rebecca Li. An extremely experienced and talented investigation officer, Li was the Acting Head of Operations and Deputy Commissioner at the time. She was officially appointed the Head of Operations in 2015. However, she suddenly left the ICAC in July 2016. The Commissioner of the ICAC, Simon Peh, claimed that she left simply due to “internal personnel issues”. Many, however, suspected that Rebecca Li’s leaving has something to do with her investigation of Leung’s corruption case. They believed that this incident was the final blow to the ICAC’s independence.
Probity in governance has always been Hong Kong's core value, but now it is under attack. Despite that, Hong Kong still enjoys one of the world's cleanest governments. International investigation and independent studies commissioned by the ICAC all show that the majority of respondents still believe that the ICAC is an effective anti-corruption organisation. Corruption is more of a rarity than a norm. However, in face of above incidents, we must learn and improve to safeguard our core value.
Some suggested that the change must come from within the structure of the ICAC as members of its advisory councils are appointed by the Chief Executive. When Leung Chun-ying was in office, most members belong to the pro-establishment camp. Pan-democrats were denied the level of participation they used to enjoy. Leung also appointed Maria Tam, an overtly pro-Beijing figure to head the ICAC's Operations Review Committee. Democratic Party's Legislative Council member James To pointed out that this position has always been filled up a neutral figure. The appointment of Maria Tam could influence the operation of the ICAC. We hope that the new Chief Executive could safeguard the independence of the Operations Review Committee and increase its transparency, but at the same time, there must be reforms in the ICAC to prevent the abuse of power by the Chief Executive. Another Democratic Party's Legislative Council member Lam Cheuk-ting proposed that instead of the Chief Executive, the Commissioner of the ICAC should report to a committee comprised by retired judges. It could prevent conflicts of interest when the Chief Executive is the person being investigated.
It has also been pointed out that there are loopholes in the Prevention of Bribery Ordinance. Article 3 states that it is against the law for any government official, without the Chief Executive's permission, to receive any form of benefits. The Article does not apply to the Chief Executive. The ICAC could only prosecute Chief Executive on the grounds of bribery, which is a much harder case to argue. Carrie Lam, the new Chief Executive promises in her election campaign to amend the Ordinance to close the loophole.
The new government has a lot of challenges ahead of them. Simon Peh's appointment as the Commissioner of the ICAC is renewed. Rebuilding ICAC's credibility is his biggest challenge in the coming term. How Leung Chun-ying's UGL case is to be resolved is yet another issue. All eyes are also on Carrie Lam for her to fulfil her promises. But we also have a role to play. We must be vigilant at all time and report any instances corruption when necessary. Make Hong Kong proud!