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







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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