廉政 Probity in Governance

每一屆行政長官和主要官員的就職誓詞中均有「盡忠職守,遵守法律,廉潔奉公」幾句。香港素來以廉潔奉公為傲,香港人也珍視這個來之不易的價值。中大香港亞太研究所一四年的民意調查中,有超過九成受訪者同意或非常同意公正廉潔是香港的核心價值,緊隨在法治之後。但是,政府前任第一、二把手相繼被控貪污,香港的廉潔受到了衝擊,究竟廉政能不能夠延續下去呢?

 

 

香港,勝在有ICAC? Zero Tolerance?

【廉政公署的成立】

香港的廉潔絕對來之不易。在上世紀六七年代,香港人口大幅增加,製造業蓬勃發展,同時貪污的情況也很嚴重。當時,社會資源未能夠趕及社會需要,不少市民為了及早獲取公共服務,而被迫「走後門」,例如病人要「打賞」醫院的亞嬸,才可取得開水或便盆。其中,貪污風氣在警隊中最為嚴重,受賄的警務人員包庇各種非法罪行,使社會治安受到嚴重的威脅。1973年,葛柏案引發市民對於貪污的不滿,港督遂按照調查委員會的建議,宣布成立一個獨立的反貪污組織。

廉政公署(下稱「廉署」)因此於1974年正式成立,以執法、預防及教育「三管齊下」的方式打擊貪污,當中包括調查公私營機構人員,並確保各項公共選舉得以公平、公開和誠實的進行。廉署獨立於任何政府部門,直接向港督負責,以維持獨立運作。除此以外,政府也推行「高薪養廉」的政策,向公務員提供優厚的薪酬和福利,增加貪污的代價,以減少貪污的動機和可能性。

【廉潔的價值】

廉署成立初期,有關政府部門的貪污投訴遠比涉及私營機構的為多。到了八十年代中期,廉署成功瓦解政府部門的集團式貪污,並推動了廉潔的風氣,使得廉潔奉公漸漸成為了香港引以為傲的核心價值,也是香港得以成為國際金融中心的其中一個重要原因。自1995年國際反貪組織「透明國際」發表廉潔指數以來,香港一直名列前茅。香港也多次被美國傳統基金會(The Heritage Foundation)選為全球最自由經濟體,而廉潔程度是十項評估項目之一。前政務司司長陳方安生表示,本地及海外公司在本港作出投資及發展業務時,都信賴本港具有完善而嚴謹的制度,監管公職人員及商家的行為。民主黨前主席劉慧卿更指:「如果廉署玩完,香港都會玩完」。可見廉潔與廉署對於香港的重要性。

【回歸後的廉署】

《基本法》第五十七條繼續訂明廉署獨立運作,向行政長官負責,但英文版卻引起一些爭議。《基本法》中廉署翻譯為Commission Against Corruption,刪去Independent,令人擔心廉署的獨立性受影響。

儘管如此,《防止賄賂條例》等法例仍依然授予廉署龐大的調查權力,當中包括查閱被懷疑人物的銀行帳目、私人文件及資產資料。其中,第10條規定,若行政長官或任何公職人員的財富高於擔任公職時的收入,除非該人能對該等財產來源向法庭作出圓滿解釋,否則即屬犯罪。另外,第14條訂明,受查或與案相關人士人若接獲廉署的通知書,必須如實陳述所有事實。以上兩個條款分別違反了普通法「無罪推定」原則與保持緘默的權利,被視為廉署的尚方寶劍,更凸顯出廉署權利範圍之大。

為了監察這些特別權力的運用,廉署設有多個監察機制,防止濫權。廉署除了直接向行政長官負責,並需要定期向行政會議匯報;立法會亦有權要求廉政專員出席會議,解答有關廉署政策、運作的問題,甚至可以進一步賦予或撤銷廉署的權力。廉署調查完畢後,律政司司長獨立行使檢控權,避免濫權。除此以外,政府也設立了四個諮詢委員會,由特首委任社會賢達,就廉署的整體工作方針、調查工作等提出建議。民主黨立法會議員林卓廷指,其中,審查貪污舉報諮詢委員會有權審查所有舉報,能夠左右,以至決定應否結束調查。公眾也可以就廉署人員的行為或廉署的工作常規及程序向獨立運作的事宜投訴委員會投訴。

然而,廉署的成功不單取決於監察的機制,還取決於市民的信心和支持。可是近年來,廉署的公信力多番受到質疑,而多名前高管被控也產生香港的廉潔受到衝擊的觀感,以下將會回顧回歸二十年來香港廉政所遇到的挑戰。

【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.

 

 

廉政風暴

過去五年,多番事件和爭議令廉署公信力和誠信接連受到質疑。德國反貪組織透明國際的全球廉潔排名中,香港2012年至2015年廉潔度排名均下跌,由第14名降至第18名,去年才回升至第15名。縱然調查主要反映受訪者的觀感,但無疑顯示市民對於香港廉政的憂慮。以下為回歸以來,觸動全港的部分事件。

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

2007年,新鴻基地產及其子公司購買大圍香粉寮地皮,並在城市規劃委員會的批准下興建816個單位。廉署在2012年因懷疑上列交易中新鴻基所支付的地價與實際成本有不合理的差距,經調查後落案起訴前政務司司長許仕仁,新鴻基地產董事局聯席主席郭炳江、郭炳聯、陳鉅源,及前港交所高級副總裁關雄生。除郭炳聯以外,其餘四名被告都各被判有罪,並均被判處5-7年監禁及不同程度的罰款。其中許氏更涉嫌於2000年6月至2009年1月期間從新鴻基及其他途徑非法收受合共1,968.2萬元利益,被控告公職人員行為失當等8項控罪,最終監禁7年半,並需交還1,118.2萬港元賄款,其後更因多名債主追討賠償而宣布破產。

許氏、郭氏家族等人的貪污案被稱為「香港史上最大貪污案」,除因牽涉的利益龐大之外,更因涉事的犯人各為政界及商界的重要人物,嚴重影響香港社會廉潔奉公的聲譽。

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

作為前任香港最高級官員,前行政長官曾蔭權理應為香港人民的典範,遵守廉潔法紀,但廉署經5年的調查後,高等法院於2017年最終判定他行為失當罪成立,被判入獄20月。事源2012年,曾氏批出數碼廣播牌照予雄濤廣播有限公司。在此同時,曾氏與雄濤主要股東黃楚標商討深圳東海花園以豪華單位之租賃,而其妻曾鮑笑薇已早付80 萬人民幣予單位發展商東海集團。發展商為黃氏旗下集團,東海更花費300萬元裝修與曾氏洽談的單位。此外,其妻更涉嫌收到雄濤另一大股東李國寶的35萬元賄款。曾氏未有在處理雄濤多項申請的期間披露或申報上述疑有利益衝突的事宜,引起涉嫌貪污的質疑及控告。

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

審計署在2013年揭發湯顯明在任廉政專員期間,一次國際活動中的兩場晚餐人均開支都超過了廉署內部常規所訂的上限。及後,有媒體揭發湯顯明在任時豪花公帑酬酢、外訪及送禮等,當中較引起爭議的包括花費超過72萬公帑購買茅台款待內地官員、送牛腩魚蛋回禮、外訪雲南時加入麗江行程藉機遊覽等,引起社會多方譁然,亦令廉署的誠信受到質疑。立法會政府帳目委員會發出歷來最嚴厲的批評報告,以「痛斥」字眼譴責湯毀壞香港廉潔聲譽,難辭其咎。廉署在同年5月展開刑事調查;律政司司長在參考英國御用大律師的意見後,認為沒有充分證據可提刑事檢控達至被定罪的結果,最終決定不起訴。

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

2016年立法會選舉中,自由黨新界西候選人周永勤在投票前九日突然在電視論壇上突然宣布因不想身邊支持他的人惹上「更高層次的麻煩、賠上代價」,停止競選活動棄選。他其後透露有中間人稱以其一倍選舉經費利誘他退選,並威脅家人的性命安全。多個政黨事後向廉署舉報,如有關指控屬實,有可能違反《選舉(舞弊及非法行為)條例》第8條。廉署上月指調查後,因證據不足,終止調查。

此外,廉署在今年四月展開行動,拘捕72人,涉嫌在立法會選舉資訊科技功能界別中種票舞弊。被捕人士收受金錢報酬,登記為資訊科技功能界別的選民;調查發現,涉案的新登記選民的背景包括學生、文員、司機及家庭主婦,未必具備所需學歷或工作經驗,在資訊科技界投票。

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

2011年,前任行政長官梁振英持股的戴德梁行控股公司DTZ正在安排賣盤,而澳洲工程企業UGL Limited為其中提出收購DTZ的公司。根據澳洲傳媒報導,梁氏涉嫌收取UGL合共5000萬港元的利益,與該公司達成秘密協議,協議條款是梁氏必須推動DTZ與UGL之間的交易,並且在梁氏離職之後 24 個月內不會撬走UGL管理層、更不會開新公司與UGL競爭。梁氏並無將此協議申報,引起廉署的調查。

爭議其中一疑點為李寶蘭取消署任執行處首長之事宜。前為廉署署理執行處首長兼副廉政專員,在廉署有充足的經驗和卓越的表現,於2015年被任命為執行處首長,但於2016年7月卻突然離職。廉政專員白韞六聲明此為「內部人事問題」,但由因李寶蘭有協助調查梁氏涉嫌貪污的案件,使人懷疑是次離職是否與該調查結果有關,引起公眾對廉署獨立性的質疑。

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.

 

 

廉潔之都

廉潔素來是香港的核心價值,但是近年來卻面對一次又一次的衝擊。無可否認的是,香港的廉潔程度仍然位於世界的前列。國際調查機構與廉政公署委託獨立研究機構的調查都顯示大部分受訪者均認為廉署的反貪工作非常有效或頗有效,也鮮有遇上貪污。可是,面對這些挑戰,我們必須前車可鑑,完善我們的反貪機制,才能避免我們的核心價值和公眾對於廉政的信心再一次被減弱。

有人提出首先從廉政公署的架構著手。監察廉署的諮詢委員會委員均由特首任命。在梁振英任內,大部分委員均屬於建制派,並沒有如以往般邀請部分泛民主派議員進入委員會;同時,他亦委任譚惠珠掌廉署審查貪污舉報諮詢委員會。民主黨立法會議員指此職過往一直由中立人士出任此職,他認為譚極端親共,卻可以控制廉署結案,是非常危險的事。我們固然期望新一任特首能夠維持諮詢委員會的中立性,增加其透明度;但廉署也必須從制度性改革,避免特首濫用這個權利,破壞其獨立性,或造成利益衝突。民主黨立法會議員林卓廷提出廉政專員應改為向由退休法官組成的小組委員會匯報,而不是向特首負責,避免廉署在調查有關特首貪污的指控是進退兩難。

此外,現行的《防止賄賂條例》被指存有漏洞。第3條定明任何人員未得特首許可索取或接受任何利益即屬違法,但條例不包涵特首在內。廉署現時只能以舉證責任較高的「受賄罪」控告特首,對控方蒐證造成不少困難。林鄭月娥在競選時承諾修訂《防止賄賂條例》第3(及8)條的範圍適用至特首。

新政府上場依然要著手處理不少廉政風波。白韞六獲得續任廉政專員,如何重建廉署的公信力成為他最大的挑戰。梁振英UGL風波能否依法處理,定當將影響新政府在市民中的形象。而林鄭亦須著手推動《防止賄賂條例》的修訂。香港的廉潔除了靠政府和制度維護,更有賴我們提高廉潔的警覺,無論在選舉還是工作場上,時刻保持廉潔公正的心態,在有需要是作出舉報,才能夠真真正正維護廉潔的核心價值。香港勝在有你!

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!

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