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News analysis

Applying bribery law to Hong Kong's next chief executive

Leader cannot be exempted from graft ordinance, lawmakers say

Months before Hong Kong's second chief executive, Donald Tsang, ended his term in 2012, photos of him enjoying holiday trips with local tycoons were splashed all over the newspapers.

These did not get him into legal trouble, as there is no rule that bars Hong Kong chief executives from accepting invitations for private jet and yacht trips.

But investigations by the Independent Commission Against Corruption (ICAC), which started in 2012, uncovered his private negotiations with property tycoon Bill Wong Cho Bau over a Shenzhen penthouse and HK$3.35 million (S$614,000) renovation works for the three-storey apartment that he had planned to retire in.

It took more than three years to gather evidence to prosecute Tsang, 72, in 2015.

Last Friday, Tsang - who was chief executive and president of the Executive Council of Hong Kong from 2005 to 2012 - was convicted on one count of misconduct in public office and acquitted of a second misconduct charge.

He will face a retrial on a bribery charge, after a jury of nine failed to reach a verdict.

Tsang was found guilty of deliberately concealing his negotiations with Mr Wong over the lease of the penthouse, even as his Executive Council was discussing and approving a digital broadcasting licence for now-defunct radio station Wave Media - of which Mr Wong was a major shareholder.

Tsang, who will be sentenced today, faces a maximum jail term of seven years.


Former chief executive Donald Tsang (in bow tie) arriving at Hong Kong's High Court. He was convicted last week of misconduct in public office. PHOTO: AGENCE FRANCE-PRESSE

He is not the only chief executive to have been accused of corruption. Two years after incumbent Leung Chun Ying took office, he was accused of pocketing HK$50 million from Australian firm UGL in return for supporting its Asian business ambitions.

The controversy escalated when a senior ICAC officer heading the investigations against Mr Leung was suddenly removed from her post. The ICAC reports only to the chief executive.

Mr Leung denied any wrongdoing and said that as the UGL deal was sealed in 2011, before he took office, he did not see a need to declare it to the Executive Council. But lawmaker Lam Cheuk Ting of the Democratic Party, who had lodged the complaint with ICAC, argued that the general public will have doubts on whether the decisions he has made in government are "for the general public interest or the interest of a private company who paid him secretly".

With two out of three chief executives tainted by corruption scandals, the next leader - to be picked in the election on March 26 - will face the challenge of restoring Hong Kong's relatively clean image, which it has maintained for years, said political analyst Johnny Lau.

Critics say that as holders of the city's highest public office, both Tsang and Mr Leung have failed to conduct themselves to the highest standards in the eyes of its people, by not declaring all the gifts and perks - such as loans, travel and other services - that they have received.

One of the immediate tasks for the new administration will be to review the current mechanism for the declaration of interests and advantages, say analysts.

 

The current legal framework, which criminalises officials soliciting or accepting an advantage, does not cover the chief executive.

While the authorities did not say why it took them so long to prosecute Tsang, some say that the exclusion of the chief executive in the bribery ordinance was an obstacle.

Last week, lawmakers from both sides of the political divide urged the next administration to amend the Prevention of Bribery Ordinance to cover the chief executive, even though pro-Beijing lawmakers had voted down a motion to do so in 2015.

Two chief executive contenders - former financial secretary John Tsang and retired judge Woo Kwok Hing - have supported such calls.

Although Tsang's conviction shows that no one is above the law, it is still important to extend the bribery ordinance to cover the chief executive, because it shows that "bribery by the chief executive is not just a mere possibility but reality", barrister and Civic Party lawmaker Dennis Kwok told The Straits Times.

He added that there is a need to deter future malpractice, such as "by having a concrete restriction in the law that can be applied, that will also assist in future prosecutions - if any - by clearly setting out the legal elements of the offence in the law".

Besides amending the law, what also matters is the will to act. Mr Lau said the new administration would have to guarantee that the law would be implemented.

A version of this article appeared in the print edition of The Straits Times on February 22, 2017, with the headline 'Applying bribery law to HK's next chief executive'. Print Edition | Subscribe