During the rampant corrupt days of Hong Kong in the ’70s, many old Hong Kongers experienced the endless hassle of applying for permits or licenses from different government departments. Very rarely could an application process be completed with one visit. More often than not, the applicants would be subject to endless queries and demands for dubious additional supportive documents, which required them to make multiple visits to no avail, until it dawned on them that they were actually being prodded to pay a bribe to facilitate the approval. Such intentional undue delay in performing government duties would normally be construed as misconduct in public office.
Hence, the same should apply to Dennis Kwok Wing-hang, the acting chairman of the Legislative Council House Committee, who has failed in his duty to oversee the simple task of appointing a formal chairman of the said committee, by unduly delaying the process and voting for seven months over 15 meetings. This must be a Guinness World Record for any parliamentary committee on the time taken to select its chairman. This dismal performance is normally seen only in some banana republics with only a nascent parliamentary system, certainly not expected in our sophisticated Legislative Council. Undeniably, the whole sorry saga would not pass the proportionality test. Such willful negligence and dereliction of duty clearly constitute a prima facie case of misconduct in public office.
In response, and as expected, Kwok immediately challenged all who criticized him to come up with the evidence of the alleged offense. But as a barrister-at-law, he very well knows that the kind of evidence he referred to would have to come from a formal criminal investigation by a law enforcement agency. As his case involved abuse of office as well as other possible offenses, perhaps a joint police/Independent Commission Against Corruption task force can be set up to accept the challenge and launch a criminal investigation accordingly. One such joint task force achieved great success involving the Overseas Trust Bank in the ’80s. It resulted in the successful prosecution of all four of its top executives because it was able to draw on the expertise of our two most professional investigative agencies. Kwok should welcome this and co-operate with the agencies in the investigation, as in the end if there is insufficient evidence for the prosecution, it could exonerate him.
In the meantime, perhaps we can analyze the facts as we know them to see whether he is justly or unjustly criticized. Misconduct in public office is a common-law offense, and the spirit of this law is explained by the chief justice of Canada in R v Boulanger (2006): “gives concrete expression to the duty of holders of public office to use their offices for the public good”. In the case of Kwok, clearly his repeated attempts to delay the election of the chairman would not contribute to the public good, but rather serve his selfish political agenda.
Without the appointment of a formal chairman, bills are being held up by the impasse, and many of them have a direct impact on people’s livelihoods... In addition, the ratification of the appointment of the new chief justice has also been held in abeyance, and this would have a significant impact on the smooth handover of this most important position in our rule of law. Clearly the misconduct is serious as it has hamstrung the work of LegCo, which directly and adversely impacts all people in Hong Kong
I have dealt with or supervised a lot of investigations concerning misconduct in public office, and in my view, there are three key elements of the offense that need to be proved : (1) a public official in the act of performing his official duties; (2) culpably misconducts himself; and (3) the misconduct must be serious.
For the first element, Kwok, as a legislator receiving government emolument, must be regarded as a public official as defined in the Prevention of Bribery Ordinance, and is also clearly performing a public duty to elect the chairman of the LegCo House Committee.
For the second element, did he culpably misconduct himself? In the Court of Final Appeal in Sin Kam-wah v HKSAR (2005), the court explains that “the misconduct can be by act or omission, for example, by willfully neglecting or failing to perform his duty”. Surely no sensible person would accept that any acting chairman can be so incompetent that he was unable to preside over the successful election of a chairman after 15 meetings, unless it is due to his willful negligence and dereliction of duty. Undoubtedly the investigators should examine all these meetings in minute detail and put his words, actions and decisions under close scrutiny, to ascertain what he should reasonably be expected to have done but failed to do, in order to identify the evidence of his willful negligence. For example, why did he fail to set a reasonable time limit for his committee members to speak, thereby enabling his co-conspiring legislators to indulge in filibustering and exhausting the allotted committee meeting time?
The third element is whether the misconduct is serious. As the chief executive has pointed out, the evidence here is “as strong as the mountain”! The House Committee plays an extremely important role in organizing LegCo affairs, coordinating the work of scrutinizing bills and subsidiary laws through its subcommittees and channeling them through to the full council in session for approval. Without the appointment of a formal chairman, bills are being held up by the impasse, and many of them have a direct impact on people’s livelihoods, such as the bill on additional maternity leave. At least 14 bills remain in limbo, without having been debated or deliberated, and 80 pieces of subsidiary legislation also have been left hanging. In addition, the ratification of the appointment of the new chief justice has also been held in abeyance, and this would have a significant impact on the smooth handover of this most important position in our rule of law. Clearly the misconduct is serious as it has hamstrung the work of LegCo, which directly and adversely impacts all people in Hong Kong.
Obviously, Kwok is not acting on his own. This is a clear case of criminal conspiracy involving opposition legislators. The investigation should dig deep into their exchanges before and during the meetings to identify evidence of their conspiracy to abuse the election process.
The criminal investigation should also look into the other suspicious aspects of this prominent opposition politician. He is well known for having made a number of high-profile visits to the US and other Western countries to meet with their officials, and badmouthing Hong Kong and central governments afterward. As he seemed to be a willing pawn for certain Western powers, it is imperative to investigate to see if he has committed any security offenses. A financial investigation should be conducted to ascertain whether he has received any illegal funding from a foreign power. In other words, the investigation must be all inclusive, leaving no stone unturned! For example, who paid for his air passage and hotel accommodations on his trips to meet foreign government officials, etc? It should be pointed out that any acceptance of free air passage or hotel accommodations by any public official is regarded as “accepting advantage”, and in contravention of Section 4 of the Prevention of Bribery Ordinance, which carries the maximum penalty of seven years’ imprisonment.
In the meantime, Kwok and his co-conspiring opposition legislators could be liable for breach of their oath of office “to uphold the Basic Law and to serve the HKSAR conscientiously, dutifully and with integrity”. Prompt action should be taken to disqualify them from their LegCo seats notwithstanding the criminal investigations, which would take months.
The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is a former head of operations and deputy commissioner of the ICAC, and currently an international anti-corruption consultant.
The views do not necessarily reflect those of China Daily.
