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Following is a question by the Hon Dennis Kwok and a reply by the Chief Secretary for Administration, Mrs Carrie Lam, in the Legislative Council today (February 19):
Question:
Article 22(3) of the Basic Law stipulates that "[a]ll offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region". Moreover, Article 63 of the Basic Law stipulates that "[t]he Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference". In this connection, will the Government inform this Council:
(a) whether it has studied if the personnel of the offices set up in the Hong Kong Special Administrative Region by departments of the Central Government (CG offices in Hong Kong) who have committed the following acts have breached the laws of Hong Kong: (i) offering any advantage as defined under the Prevention of Bribery Ordinance (POBO) to any public servant as an inducement to or reward for the public servant's performing or abstaining from performing any act in his capacity as a public servant, and (ii) soliciting or accepting any such advantage as an inducement to or reward for their performing or abstaining from performing any act in relation to the affairs or business of their offices; if it has studied, of the results;
(b) whether it has studied if "advantage" as defined in POBO includes (i) the appointment of a person to an official position on the Mainland (e.g. a deputy to the National People's Congress or a member of the National Committee or a Local Committee of the Chinese People's Political Consultative Conference), and (ii) an undertaking or act to provide assistance to a person for his appointment to an official position on the Mainland; if it has studied, of the results; and
(c) whether it has reviewed if the existing legislation is adequate for imposing criminal sanctions on those who have committed the following acts: public servants soliciting or accepting deferred benefits (such as post-service appointment to an official position on the Mainland) and those personnel of CG offices in Hong Kong offering such deferred benefits to public servants; if it has, of the details; if not, the reasons for that?
Reply:
President,
The question raised by the Honourable Dennis Kwok involves the understanding, interpretation and application of legal provisions. It is of paramount importance that any deliberation on whether a legal provision is applicable to a specific situation should be based on relevant facts and evidence, generalised discussion is inappropriate and should be avoided. Furthermore, the application of criminal laws is a matter for the Court. In order not to prejudice the fair and effective administration of criminal justice, it is not appropriate for the Government to make any overly specific comments outside the judicial process. Subject to the aforesaid, the Government's reply is as follows:
(a) There are different laws in Hong Kong that govern different categories of corrupt conducts. Statute law includes the Prevention of Bribery Ordinance (Cap. 201) (the Ordinance). According to section 4(1) of the Ordinance, any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to which the Ordinance refers (advantage), to a public servant as an inducement to or reward for or otherwise on account of that public servant's performing or abstaining from performing any act in his capacity as a public servant, may commit an offence of "offering advantage to a public servant".
In addition, by reason of section 9(1) of the Ordinance, any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of the agent's doing or forbearing to do any act in relation to his principal's affairs or business, may commit an offence of "soliciting or accepting advantage by an agent". Section 2 of the Ordinance stipulates that an "agent" includes a public servant and any person employed by or acting for another.
With regard to the offices set up in the Hong Kong Special Administrative Region (HKSAR) by departments of the Central Government and their personnel, Article 22(3) of the Basic Law stipulates that such offices and personnel shall abide by the laws of the HKSAR, including the Ordinance.
However, it should be emphasised that regardless of what bodies or persons are involved in a case, whether or not the relevant conduct is in breach of the laws of Hong Kong depends on the specific circumstances, relevant evidence, and the applicable laws in each individual case. There is no place for generalisation.
(b) Section 2 of the Ordinance defines "advantage" as to include "any office, employment or contract" and any offer, undertaking or promise, whether conditional or unconditional, of any advantage such as office, employment or contract. Whether "advantage" as defined in the Ordinance includes an official position in Hong Kong, or in the Mainland or overseas depends on the specific circumstances, relevant evidence and the applicable laws in each individual case. Again, there is no place for generalisation.
(c) "Deferred benefits" is neither a term of art used in the legal context nor a term that is found in the Ordinance. Under section 4(2) of the Ordinance, any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts advantage as an inducement to or reward for or otherwise on account of his performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant, may commit an offence of "soliciting or accepting advantage by a public servant". The offence of "offering advantage to a public servant" is also stipulated in section 4(1) of the Ordinance. A public servant who solicits or accepts advantages, and performs or abstains from performing, or has performed or abstained from performing, any act in his capacity as a public servant may commit the said offence.
As mentioned in part (b) of my reply, whether "advantage" as defined in the Ordinance includes a certain official position and whether "deferred benefits" constitutes an "advantage" as stipulated in the Ordinance depend on the specific circumstances, relevant evidence and the applicable laws in each individual case. There is no place for generalisation.
Thank you, President.
Ends/Wednesday, February 19, 2014
Issued at HKT 11:55
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