Extending the application of sections 3 and 8 of the Prevention of Bribery Ordinance to the Chief Executive （2015/11/11）

President, I agree that all are equal before the law. If the Chief Executive breaks the law, he should be penalized by the law like the common people. However, I do not agree to extend the application of sections 3 and 8 of the Prevention of Bribery Ordinance to the Chief Executive for two reasons.

First, corruption acts on the part of the Chief Executive are already regulated by the existing laws, including the Basic Law, the common law and the Prevention of Bribery Ordinance (Ordinance). According to Article 47 of the Basic Law, the Chief Executive must be a person of integrity, dedicated to his or her duties. Under the common law, the Chief Executive is subject to the offences of bribery and misconduct in public office. Under section 101I(1) of the Criminal Procedure Ordinance, persons convicted of the relevant common law offences shall be liable to imprisonment for seven years and a fine.

In 2007 when the Ordinance was amended, the application of sections 4, 5 and 10 was already extended to the Chief Executive, to the effect that if the Chief Executive solicits or accepts any advantage from others; solicits or accepts any advantage from others on account of assisting anyone in entering into contracts; or maintains a standard of living or controls property disproportionate to his emoluments, he shall be guilty of an offence. The bribery-related provisions of the Ordinance applicable to all persons, such as sections 6, 7 and 9, are also applicable to the Chief Executive. The recent indictment of the former Chief Executive by the Independent Commission Against Corruption on two charges of misconduct in public office reveals that all are equal before the law. Misconduct on the part of the Chief Executive is already regulated by the existing laws, and there is no way that the Chief Executive can enjoy a status which is above the law.

Second, section 3 of the Ordinance is not applicable to the Chief Executive because of his special constitutional status. According to section 3, any prescribed officer who, without the general or special permission of the Chief Executive, solicits or accepts any advantage shall be guilty of an offence. The need for civil servants to obtain permission from the Chief Executive before accepting any advantage arises from the Chief Executive's authority to lead the Civil Service. This authority is assured in the first paragraph of Article 43 and Article 48(1) of the Basic Law. Under "one country, two systems" and with the authorization of the Central Authorities, the Chief Executive enjoys a unique constitutional status.

If the application of section 3 of the Ordinance is extended to the Chief Executive, since the Chief Executive cannot grant himself permission in the first place, permission would have to be granted to him by a higher authority. In 2012, the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests recommended that a statutory Independent  Committee should be established to grant permission to the Chief Executive to solicit or accept any advantage. If this recommendation is to be implemented, I think the biggest problem will be the constitutional status of that Independent Committee. According to Article 15 and the second paragraph of Article 43 of the Basic Law, the Chief Executive is appointed by the Central Authorities and shall be accountable to the Central People's Government. The Chief Executive enjoys a paramount constitutional status in the SAR Government, and he is directly accountable to the Central Authorities. If an Independent Committee is to grant permission to the Chief Executive, the constitutional status of such a committee must be higher than that of the Chief Executive. In that case, the Independent Committee is already outside the framework of the SAR Government as far as its constitutional status is concerned. Hong Kong has no constitutional right to establish a committee that transcends the Chief Executive and such an act would also go beyond the powers of the Legislative Council.

If the Central Government believes that the existing laws in Hong Kong are inadequate to regulate the acceptance of advantage by the Chief Executive, the Central Authorities should establish a similar committee as above under the framework of our national laws, or authorize an official from the Central Government to grant approval or permission for the acceptance of advantage by the Chief Executive. The SAR Government and the Legislative Council can also communicate with the Central Authorities, convey their aspirations to them and request for a decision therefrom, where necessary. The decision made by the Central Authorities must comply with the Basic Law and the constitutional status of Hong Kong. It has to go through a stringent process.

Sections 3 and 8 of the Ordinance are interrelated. When a public officer accepts a reasonable advantage with the permission of the Chief Executive, the person offering the advantage will certainly not be guilty of an offence under section 8. Similarly, if section 3 is not applicable to the Chief Executive, section 8 cannot be invoked to merely target at the person offering the advantage.

In conclusion, I oppose the original motion but support Mr TAM Yiu-chung's amendment, which proposes to study matters related to the establishment of an Independent Committee for resolving constitutional problems under the framework of the Basic Law.

I so submit