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Editorial﹕Prevention of CE bribery still necessary after Tsang cleared

【明報專訊】FORMER Chief Executive Donald Tsang Yam‑kuen has won his final appeal against his conviction of criminal misconduct in public office. The Court of Final Appeal quashed Tsang's conviction and sentence and ordered that there should be no retrial. The top court gave this ruling on technical grounds, saying the trial judge had failed to give the jurors adequate directions. While the ruling marks the official conclusion of Tsang's case, the authorities have yet to address the regulatory problem concerning senior officials' conflicts of interest as revealed in Tsang's acceptance of hospitality from tycoons during his tenure. Public officers need to be whiter than white and avoid situations that may invite suspicion as much as possible. Whenever they face a conflict of interest, they must disclose it clearly. The unique constitutional status of the chief executive should not be an obstacle to monitoring the leader's integrity. The current Prevention of Bribery Ordinance falls short of governing the conduct of the chief executive. The legal loophole concerned must be plugged as soon as possible.

In the last months of his office before his retirement in 2012, Tsang was embroiled in a series of scandals including the acceptance of hospitality from tycoons on occasions like private jet and lavish yacht trips. He was also alleged to be renting at a cheap price a Shenzhen luxury penthouse under the name of businessman Bill Wong Cho‑bau, the major shareholder in Wave Media. The scandals caused a public outcry and the ICAC stepped in to investigate. The matter dragged on for more than three years. The Department of Justice, out of legal technical considerations like the threshold for criminal conviction, finally decided to charge him with misconduct in public office over only two of the scandals revealed. One of them was Tsang's failure to disclose his deal with Wong on the renting of the Shenzhen penthouse before he attended the Executive Council meeting to decide whether to grant the digital audio broadcasting license to Wave Media.

Since he was found guilty and sentenced to jail in the high court two years ago, Tsang has soldiered on with his appeal. At long last, the Court of Final Appeal ruled in favour of him yesterday. The top court's main considerations were technical. It said the trial judge had failed to give adequate directions to the jurors when guiding them on what constitutes a "wilful" misconduct.

Hong Kong is a society underpinned by the rule of law. The court decides whether someone should be convicted only based on legal grounds and evidence. Tsang did receive generous hospitality from the rich many times in his office as chief executive. He ignored the demand of political ethics — that public officers should be whiter than white, and he won his final appeal on the basis of legal technicality only. Democratic Party lawmaker Lam Cheuk‑ting says Tsang's acquittal does not mean public officers do not need to declare any potential conflict of interest. Former Chief Secretary for Administration Anson Chan Fang On‑sang interceded with the court on Tsang's behalf. Talking about the case's implications for public officers, she says civil servants need to be "whiter than snow" and should always think thrice before acting. These are lessons that all public officers should bear in mind.

Hong Kong's Prevention of Bribery Ordinance is a very strict law. The biggest deficiency is that its Section 3 (soliciting or accepting an advantage) and Section 8 (bribery of public servants by persons having dealings with public bodies) do not apply to the chief executive. The fact that prosecutors could only charge Tsang with two counts of misconduct in public office exactly reflects such insufficiency of legal tools. If these two sections were applicable to the chief executive, Tsang's reception of yacht and private jet trips would have been a matter of regulatory concern. The SAR government should talk with the central government regarding this and refine the regulatory regime as soon as possible to prevent graft by the chief executive without violating constitutional principles.

明報社評 2019.06.27﹕曾蔭權案告一段落 防賄漏洞仍須堵塞

終審法院裁定,前行政長官曾蔭權就公職人員行為失當罪上訴得直,撤銷定罪及判刑,案件不會重審。終院從法律技術角度,認為原審法官對陪審團指引不足,裁決標誌曾蔭權案正式告一段落,然而由曾蔭權任內被揭接受富豪款待所引伸的高官利益衝突規管問題,仍然有待當局處理。公職人員需要比白紙更白,應當盡量避免瓜田李下,面對利益衝突必須清楚申報。行政長官的獨特憲制角色,不應成為操守監督障礙,現行防賄條例對監管行政長官有所不足,相關法律漏洞應當盡快堵塞。

曾蔭權2012年退任前爆出一系列醜聞,包括接受富豪以私人飛機及豪華遊艇款待,以及廉價租住雄濤數碼廣播大股東黃楚標名下的深圳豪宅等,社會輿論嘩然,廉署介入調查。事件擾攘超過3年,律政司考慮到定罪門檻等法律技術因素,最終只就兩宗醜聞提出公職人員行為失當檢控,包括曾蔭權參與行政會議決定雄濤廣播牌照申請,卻沒有申報他與黃楚標洽租豪宅一事。

兩年前高等法院裁定曾蔭權罪成入獄,曾蔭權一路提出上訴,昨天終審法院裁定他就定罪上訴得直。終審法院主要是從法律技術角度,認為原審法官引導陪審團處理「明知故犯」行為失當元素,所作指引存在不足。

香港是法治社會,定罪與否,法庭只能根據法律理據和證據辦事。曾蔭權身為行政長官,多次接受富豪優厚款待,無視公職人員應當比白紙更白的政治倫理要求,現在只是以法律技術打贏官司。民主黨立法會議員林卓廷認為,曾蔭權上訴得直,不代表公職人員面對利益衝突不需申報;有份為曾蔭權求情的前政務司長陳方安生,談到案件對公職人員有何啟示時亦說,公務員需要「比雪更白」,做事前必須三思。所有公職人員均應記取這些教訓。

香港《防止賄賂條例》相當嚴厲,最大不足是第3條「索取或接受利益」以及第8條「賄賂公職人員」,並不適用於行政長官。控方只能針對曾蔭權兩宗醜聞,控以公職人員行為失當,正正反映法律工具不足。倘若防賄條例第3及8條涵蓋特首,曾蔭權坐豪華遊艇和私人飛機等行為皆能受到規管。特區政府應與中央商量,在不違憲制原則下,盡快完善行政長官防賄規管機制。

■Glossary

whiter than white﹕completely honest and morally good

underpin﹕to support or form the basis of sth

regime﹕a method or system of organising or managing sth

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