Lo Hing-cheung, Francis
Senior Assistant Director of Public Prosecutions
Department of Justice
Hong Kong Special Administrative Region
People's Republic of China
I INTRODUCTION
Corruption has been described
as an "insidious cancer" and "an evil practice
which threatens the foundations of any civilized society"
. But whilst there is an inextricable link between the suppression
of corruption and the economic development of a community, corruption
still exists in the most affluent of societies and the wealthiest
of nations. That said, corruption does appear to be a more obvious
problem within those societies where the majority of people are
finding it difficult to survive, where kickbacks and backhanders
have become a way of life, simply because without these practices
there will be no food on the table, no clothing and no shelter.
2. The Hong Kong Special Administrative Region of the People's
Republic of China ["Hong Kong"] could not be described
as an impoverished place; whilst some people in Hong Kong are
poor, there are others who are quite wealthy. By world standards
Government Servants are well paid, and the average monthly income
of non-Government workers up to supervisory level , is around
US$1,500 per month . There appears however, to be little correlation
between a person's income and his propensity to engage in corrupt
behaviour, for the types of corruption cases that come before
our Courts demonstrate that those who choose to enrich themselves
through corruption, are in receipt of differing levels of income,
and corruption is certainly not confined to the less well-off
members of our community.
The consequences of corruption have been helpfully summarised by Denis Osborne as follows:-
"Corruption makes governments
and communities:
(a) Uneconomic, because
(i) less revenue is collected, with the loss to government much
greater than the individual gains more money is paid for the
goods and services procured;
(ii) policies are distorted to maximise corrupt gains, usually
in favour of capital-intensive spending;
(iii) resources are diverted away from social and developmental
priorities;
(iv) investment is discouraged;
(b) Unstable, because
(i) people become angry, including the poor who cannot afford
to pay bribes and who get hurt the most, and others whose human
rights are violated;
(ii) the rich provoke resentment, through wanting more riches
and flaunting their corrupt gains they make corruption a political
issue; and
(c) Unsafe, reducing individual and state security, because
(i) bribes protect criminals and facilitate drug smuggling, gun
running, terrorism;
(ii) bribes make the protection of society fail, because people
pay bribes to avoid compliance with the requirements for health,
safety and the environment."
2. As part of the International Community, Hong Kong plays an active and very effective part in the fight against corruption. Its arsenal consists of a comprehensive and effective legislative regime, a dedicated and efficient law enforcement agency, an independent prosecution authority, and an independent judiciary; apart from these factors, public awareness and community support are also important pre-requisites, if the battle is to be won. Hong Kong has experienced a great deal of success in dealing with and suppressing corruption, and perhaps it would be appropriate if I were to briefly summarise the main features of our methodology for combating corruption.
II A COMPREHENSIVE LEGISLATIVE
REGIME
3. Legislation is the primary source of the powers which are
necessary for a Government to prevent, investigate and prosecute
corruption offences, and the main piece of legislation in Hong
Kong is the Prevention of Bribery Ordinance. This ordinance contains
eight corruption offence-creating sections, four sections granting
special powers of investigation, and eight sections designed
to assist the prosecution at trial and to limit the defences
available to any person accused of an offence under the Ordinance.
4. The offences contained in
the Ordinance include:-
(a) Section 3 - Government servant soliciting or accepting an
advantage without the permission of the Chief Executive.
This Section is a very simple provision which makes any solicitation
or acceptance by any government officer of any advantage a criminal
offence. The only defence is that the accused has permission
from the Chief Executive of Hong Kong to solicit or to accept
the advantage. Regulations set out the circumstances in which
the government officer automatically has permission from the
Chief Executive, as opposed to those where he would have to seek
that permission.
(b) Section 4 - Offering an advantage to a public servant or a public servant soliciting or accepting an advantage, as a reward or inducement for performing some act or omitting to perform some act in the course of his/her duty. This is the most regularly used, public sector corruption offence.
(c) Section 9 - Offering an advantage
to an agent or agent soliciting or accepting an advantage as
an inducement or reward, for doing or omitting to do some act
in connection with his/her principal's affairs.
This Section can also be used to prosecute government servants
but is usually used for prosecuting private sector corruption.
(d) Section 10 - Possession by
a Government Servant of unexplained property.
Section 10(1) BO in fact contains two offences, (a) and (b) which,
in simple terms, can be described, respectively, as a government
servant maintaining a standard of living beyond his means and
being unable to satisfactorily explain how he is able to do so;
or being in control of more property than he should own and being
unable to satisfactorily explain how this property came under
his control. The prosecution only has to prove incommensurateness
or disproportionality with official income, and the burden then
passes to an accused to satisfactorily explain how this imbalance
arises.
5. Some other special features
of the Ordinance include that -
(a) there is no requirement to prove any specific corrupt intent.
The only mental element of the offence is an intent to commit
the acts which make up the different offences;
(b) a defence based upon it being customary in any particular
trade or profession to offer or accept advantages is excluded;
(c) the strictness of the rules of evidence relating to accomplices
is reduced, to reflect the reality that so many prosecutions
rely upon the evidence of one of the parties to the corrupt transaction;
(d) section 30 which prohibits the disclosure of information
relating to the identity of a person under investigation or of
the details of that investigation. The purpose of the section
is primarily to preserve the secrecy and integrity of an investigation,
with a secondary benefit of protecting the reputation of persons
who are the subject of it, but who might ultimately be absolved
of any misconduct.
III ORGANISATIONS
6. To ensure success in the continuing battle against corruption, effective organisations are essential to investigate corruption, to prosecute corruption offences and to try them. In Hong Kong, the three roles are separately [and independently] performed by the Independent Commission Against Corruption ["the ICAC], the Department of Justice and the Judiciary.
The Independent Commission Against
Corruption
7. Established in 1974 as a result of the recommendations made
after the Blair-Kerr inquiry into a corruption scandal involving
Peter Godber, a Chief Superintendent in the Royal Hong Kong Police
Force, the ICAC has played a vital role in combating corruption
in Hong Kong. The ICAC is independent of the administration and
answers directly to the Chief Executive of the HKSAR.
8. The scope of the ICAC's powers and duties is detailed in the broad and specific terms of Section 12 of the Independent Commission Against Corruption Ordinance.
9. The ICAC is more than just a law enforcement agency; it fights the war against corruption on three fronts, sometimes described as its three-pronged attack. Firstly, through its Community Relations Department, it targets the public and seeks to foster an anti-corruption culture within Hong Kong society by a very broad and diverse range of public relations initiatives.
10. Secondly, through its Corruption Prevention Department, it targets the Government and all forms of organisations, both public and private, in its corruption prevention efforts. In this area it offers its expertise in devising or improving upon administrative systems and work practices which will reduce the chance of corruption occurring within an organisation.
11. Finally, it targets the corrupt. It does so through the Operations Department which is the investigative arm of the ICAC. In Hong Kong both public sector and private sector corruption are criminalised and the Operations Department is divided into groups of officers responsible for investigating corruption in each of these two areas. Originally complaint re-active, the ICAC has, in recent times, developed increasing use of pro-active investigative measures. It has developed an intelligence network of civilian informants through whom and with whom ICAC officers have carried out very successful undercover operations.
12. The results of the investigations conducted by the Operations Department are reported to the prosecuting authority, for consideration as to whether a criminal prosecution should be initiated. In respect of minor offences the Commissioner of ICAC is empowered to issue a warning instead of prosecuting an offender who has committed a minor corruption offence. Statistics show that this procedure also proves to be a cost-effective form of prevention, because employees who are told that their misdeeds have been found out and that further misbehaviour will lead to prosecution, are inclined to 'go straight'. For minor infractions this mode of dealing with the case results in benefits all round - firstly, it saves the cost of a trial; secondly, it enables an employer to retain often valuable and well-trained members of staff; and finally, it means the offender is not the subject of a criminal conviction.
Department of Justice and the
prosecution of corruption offences.
13. Although in respect of operational matters, the ICAC is independent
of the rest of Government , the decision to prosecute an offender
under the POBO rests with counsel of the Department of Justice.
The independence of Department of Justice in regard to criminal
prosecutions, is guaranteed by Article 63 of the Basic Law ,
which reads as follows -
"The Department of Justice of the Hong Kong Special Administrative
Region shall control criminal prosecutions, free from any interference."
14. The prosecution of any POBO offence also requires the written consent of the Secretary of Justice. The retention of this requirement serves to maintain and affirm the distinction between the separate roles of investigation and prosecution - a distinction that Kaplan J. was at pains to emphasise in In re Alick AU Shui-yuen , where he said :
"Although the ICAC have been given considerable powers they have not, as far as I am aware, been given the power to prosecute offences in the courts of Hong Kong. They are an investigative organisation. The decision to prosecute has been, and I hope always will be, that of the Attorney General , no doubt on the advice of the Director of Public Prosecutions. It is up to the Attorney General to decide whether to prosecute any person and for what charge or charges…..Thus at any stage or proceedings, the Attorney General can determine such proceedings regardless of the views of the investigation department. The Attorney General presents the case in court and has a free and independent hand in so doing. He is not beholden to the investigative authority."
15. In considering whether to prosecute, counsel is required to consider whether there is sufficient evidence to support a charge. The proper test is whether there is a reasonable prospect of a conviction. Counsel must then consider whether the public interest requires a prosecution .
An independent Judiciary
16. Whether the trial takes place before a single judge or magistrate,
or before a judge and jury, several general principles apply.
The trial is to be held in public, the adjudicators must be independent,
impartial, and unbiased, the defendant has extensive rights to
defend himself, including the rights to compel the attendance
of witnesses, to be represented by a lawyer and in more serious
cases, to be financially assisted by public funds for this purpose.
These rules and principles are to ensure a fair trial. The independence
of the judiciary is guaranteed under Article 85 of the Basic
Law [supra.] which provides that -
"The courts of the Hong Kong Special Administrative Region
shall exercise judicial power independently, free from any interference.
Members of the judiciary shall be immune from legal action in
the performance of their judicial functions."
IV CONCLUSION
17. One of the objectives of this august gathering is to focus
on "modern, practical strategies for combating corruption."
Although it is over 20 years old , the Hong Kong model for preventing
and fighting corruption is a tried and tested one, and has been
acclaimed worldwide as an effective and powerful weapon for use
against the corrupt and corruptible; in Hong Kong it has also
brought about a change in culture from the widespread tolerance
to the outright rejection of corruption.
18. Whilst many a battle has been won in the Hong Kong arena, the war is far from over. There is no room for complacency, and it is appropriate that anti-corruption techniques should be reviewed from time to time in order to improve them if necessary, however the Hong Kong three-pronged approach is just as effective now as it was when it was first introduced. It has been adapted either in its entirety or in part, in a number of other jurisdictions, and it is commended as an ideal starting point for any administration [whether it be from the poorest nation in Africa or the wealthiest nation in Europe], provided that administration has the political will and the support of its community, to seriously tackle this 'insidious disease' called corruption.
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