Kawashima Ai
Presentation
by
Mr Tony Kwok Man wai,
Head of Operations,
Independent Commission Against Corruption,
Hong Kong
“The Development of the ICAC Investigative Capability”
Introduction
I believe all of you have heard of our celebrated three pronged attack on corruption - investigation, prevention and education. As Head of Operations, I will focus on investigation, but I must emphasize that investigation alone is not enough. Prevention and education are equally, if not more, important, if we want to be successful in the fight against the evil of corruption.
Challenges of 70s
Challenges of the 70s was called Mission Impossible in 1974. In the 60’s and 70’s, when I was very young but old enough to witness what went wrong in the society, Hong Kong, as a British Colony, was definitely one of the most corrupt places on earth. Corruption was a way of life. There was a saying that “corruption existed from womb to tomb”. From the date you were born to the day you died.
That in itself did not pose a real problem for enforcement action. Corrupt government officials openly solicited and accepted bribes and made little effort to hide their ill-gotten gains. With a complaint from a member of public, ICAC could easily set up a simple ambush and arrest those involved red-handed. Catching them was pretty easy then. One story going round in the ICAC bar at the time was that our officers had once mistakenly arrested the wrong man, but after some casual conversation, the person made a full admission of his own corrupt acts, all unknown to us!
The real challenge
in those days was syndicated and institutionalized corruption. Like organized
crimes, corruption syndicates was difficult to crack because there was a
wall of silence and they would not tolerate dissent. This was described
as the bus theory:
either you “get on the bus” - that means to join the syndicate
or “run alongside the bus” do not interfere even if you don’t want
to join
but “never stand in front of the bus” - because it will knock you down
if you dare report their corrupt acts
Fortunately, we did not get knocked down by the bus. But it was a real battle. Many of our officers could still remember the many harassing phone calls and threats they received whilst investigating these syndicates.
How did we do it
Public Support
So how did we do it, turning a place from the one of the most corrupt to one of the least ? There are several factors. First and foremost is the tremendous support that the public has shown for the ICAC. As often said in politics, things have to become worse before it can get better. The ICAC was born because ordinary citizens were fed up with the corruption and the associated injustices, and forced the government to set up a Commission of Inquiry which subsequently led to the establishment of the ICAC. This direct mandate from the people of Hong Kong has since been the driving force sustaining the ICAC operations up till this day.
One of our pledges is that we will never turn away an identified complainant. If he makes a complaint of corruption, we will investigate it, even though he may not be able to substantiate his complaint by evidence. This undertaking is most important, if we wish to win the support of the public in our fight against corruption. In fact, we further pledge that all complainants will be interviewed by our investigators within 48 hours of his initial report by telephone or letter, at any place they prefer. We regard our complainants and witnesses as our “customers” and this is the service standard we promise our customers.
Independence
Second, our operational independence. The ICAC is an independent agency separated from the rest of the government, which means that we are free from any interference by the government or anybody in conducting our investigation. And this is absolutely essential and absolutely true. In my 24 years’ service I have never come across or heard of any undue interference from whatever quarters in our operations. Provided there is reasonable suspicion, we will investigate any person or organization without fear or prejudice. This statutory obligation is written into our constitution. Nor can anyone order us to stop an investigation. Once it is commenced, it has to go through a full process.
Government Support
Third, the strong support the ICAC receives from the top government. Our Chief Executive has on many occasions reiterated the government’s firm commitment to fight corruption but it is not just words. He also ensures that the ICAC is given the necessary resources to tackle its task. You simply cannot run a proper anti-corruption agency on a shoe-string budget. Our staff are 1,300 strong and our budget for this current year is 91 million US dollars, working out to be about 15 US dollars per capita, which we believe is amongst the highest anti-corruption budget in any government for the work.
The Powers
Four, ICAC powers. Corruption is recognized as one of the most difficult crimes to investigate and for our investigations to be effective, we need powerful legal framework - some would argue draconian powers. Hence, we have special powers which allow us to :-
�� arrest and search
�� order a corrupt suspect to disclose all his assets and remittances.
�� compel a witness to answer questions under oath
�� examine bank account
�� restrain and forfeit corrupt proceeds
�� restrict a suspect’s movement by seizing his travel documentsMost of these powers, however, are subject to judicial supervision to prevent any abuse.
We also have in our statute a “draconian” offence, which is commonly known as Section 10 offence under the Prevention Of Bribery Ordinance, i.e. a government officer in possession of disproportionate assets or maintaining a living standard above his official means will be guilty of an offence if no reasonable explanations are forthcoming.
This provision is regarded as the last line of defence against the hard-core corrupt offenders in the civil service, who, because of their high position and influential power, would rarely be implicated by direct evidence of corruption. Through this provision, we have succeeded in prosecuting a total of 50 government officials, many of whom are of directorate rank.
Specialization and Professionalism
Fifth, specialization and professionalism. Because corruption is often committed by people who are usually highly educated, and the offences are invariably complicated, investigating corruption would require a high degree of professional training and specialized skill. Because corruption is a secretive crime, we need a good intelligence-gathering system. We put considerable resources into our surveillance capability which account for about 10% of our total investigative resources. Our dedicated and powerful surveillance unit has played a very important role in many of our successful operations.
Strong legal and judicial support
In fighting corruption, ICAC has a strong ally and that I refer to the Department of Justice. As part of the checks and balances, ICAC is only responsible for investigation whilst the decision to prosecute rests on the Secretary for Justice, and her designated government counsel working as a special unit. Throughout these years, we have built up a strong professional partnership with counsel in this dedicated unit who have given us valuable legal advice at various stage of our investigation. They have also ensured that all prosecution of ICAC cases are most professionally conducted in courts. Last year, our conviction rate was over 80% and this figure speaks for itself. The Judiciary has often spoken out on the evil of corruption and indeed the Court of Appeal had given binding guidelines for sentencing on various corruption offences, to ensure proper deterrent. They have all played a vital role in enabling Hong Kong to succeed in the fight against corruption in the past 25 years.
The journey
If we look back at the ICAC’s enforcement history, we can see 4 distinct phases of operations. The first phase was in the early days from 1974 to 1977, efforts were concentrated in wiping out syndicated police corruption. By the end of 1977, the ICAC had broken the back of syndicated corruption within the Police. The police had also started their own reform and by now, the Hong Kong Police is recognized as one of the most efficient and cleanest forces in the region.
In phase 2, between 1978 and the early 1980s, we turned our attention to the rest of the Civil Service, particularly public works related departments. During this period, there were many notable cases, such as the prosecution of the head of the Buildings Department.
In the early 1980s, the number of corruption reports against the private sector began to show a marked increase. Up till then, the ICAC offensive was against government corruption. The business community at the time took a rather short term view and generally did not welcome ICAC investigation. They regarded kickbacks as a normal way of doing business and even described it as the best lubricants for business. We insisted that there could not be double standards in society and private sector corruption could be as harmful as government corruption. Today, the various chambers of commerce here all agree that the ICAC has contributed to making Hong Kong a good place to do business, ensuring a level playing field and the rule of law.
The third phase began in the mid 1980s when Hong Kong entered into a period of economic recession. At the same time, perhaps not surprisingly, a number of large-scale corruption related banking and financial fraud came to the fore. As a response, a number of task forces were specifically set up by the ICAC to investigate these matters. These task forces were unique because they composed not only of ICAC investigators, but also teams of lawyers and accountants who worked together for many months to solve the case.
Partly because of the problems exposed by ICAC cases, Hong Kong saw the creation of the Securities and Futures Commission and the Monetary Authority as major steps in regulating what had largely been an ungoverned financial market. This paved the way for the strong and effective financial regulatory mechanism we have today, which has proved to be crucial in weathering our current economic downturn.
By early 1990s when things began to calm down and all appeared to look under control, Hong Kong was then struck by an upsurge of corruption complaints, the fourth phase. 1993 saw the number of corruption reports reach a record high level. But more worrying were signs re-emerging that small groups of government officers were involved in organised corruption, a pattern not seen since early 1980s. There is a lesson for us all. Corruption can quickly creep back to threaten our society. Fortunately, our alarm system worked and through our strong and effective action, these small syndicates were smashed quickly.
The reason for this corruption upswing in 1993 could be attributed to the uncertainly in some quarters on the then future of Hong Kong - known as the “1997 quick buck syndrome”. There was then a high degree of public scepticism, both locally and overseas, as to whether ICAC could maintain its independence and effectiveness to cope with corruption in the run-up to and beyond 1997. These scepticism had prompted the potential corrupt to test our capability. I am glad to say that events in the past 2 years have proved the sceptics wrong. Business has been as usual for the ICAC and corruption has been pretty much kept in check by our vigilant and rigorous law enforcement actions.
Current Threats
So much for our past history. What about today, what are the current threats facing the ICAC ? I believe there are 3 areas the ICAC must pay attention to. First, although we have eliminated most overt types of corruption, the conniving nature of corruption with satisfied customers unwilling to complain remains a constant challenge to us. Secondly, corruption is becoming more and more difficult to investigate. With advanced technology and global mobility, today’s criminals have never had it so good or so easy to conceal the evidence and their ill-gotten gain. Thirdly, organized crimes have become a real threat and we must not allow their link to corruption grows , making them an extremely dangerous ally.
Staying on Top
We all know that complacency is the biggest enemy to any success story. So, how do we ensure that we continue to maintain that vital competitive edge to be one step ahead of the corrupt fraternity.
Proactive Approach
Firstly we adopt a proactive strategy Proactive strategy does not mean that we engage an undercover agent in every public and private organization. Our proactive approach begins with rigorous networking with other law enforcement agencies, government departments and regulatory bodies in the public sector, as well as reaching out to industries and businesses in the private sector. This close liaison, together with a network of informants, provides a comprehensive source of on-line intelligence to expose corruption which may otherwise have gone unnoticed.
Where and only when there is intelligence to show ongoing corrupt activities and there is no other viable way of obtaining independent evidence, we will consider the use of undercover agents to infiltrate the target group.
This proactive strategy has proved to be very successful. In the past 3 years, it generated 487 cases, resulting in the prosecution of 273 defendants.
Professional Capability
Secondly, we must enhance our professional capabilities. The followings are some examples of our new initiatives.
(a) Video-Interview
We are one of the first law enforcement agencies in the world to introduce video interviewing of suspects. Now, all ICAC interviews with suspects are 100% video recorded showing every word uttered and every move made by the suspects and the officers throughout the interview. This scheme reduces considerably allegations of misconduct during these interviews and has resulted in a high rate of guilty pleas.
(b) Witness Protection and Resident Informants
We once had a case where a vital witness was brutally murdered just before a main corruption trial. Since then, we had set up a comprehensive witness protection scheme, covering safe-house, armed escort and change of identity. In addition, we have set in place for a number of years now a Resident Informant Scheme, which enables a defendant in a corruption case to plead guilty and to testify against his corrupt associates in exchange for a lenient sentence. Whilst assisting ICAC enquiries or waiting to give his evidence, he will serve his sentence in the ICAC detention centre..
(c) Financial Investigation Unit
Because of the complexity in asset tracing and money laundering investigation, we now have a number of in-house investigative accounts who can offer professional expertise in this type of investigations.
(d) Computer Forensics Research and Development
The rapid development of Information Technology (IT) can be a very useful tool for investigation as well as for the corrupt offender. We have a specialized computer forensic and research unit to hopefully make us one step ahead, although we can never be sure of that.
Local Partnerships
We see great value of a partnership approach with other local law enforcement agencies, including the Police, Customs & Excise, Immigration and Correctional Services. In the old days, when ICAC arrested a government official, this might not be welcome by his head of department, who blamed ICAC for bringing a scandal to his department. If the dark days of corruption teach us anything, it is that turning a blind eye to corruption simply will not do. The problem will only grow bigger. We are pleased that heads of departments, particularly the law enforcement agencies, today have changed that attitude. Indeed, many of our most successful cases originated from their complaints or as a result of joint investigations.
International and Mainland Liaison
Corruption has no boundary these days and therefore we see close liaison and co-operation with overseas and Mainland law enforcement agencies as one of our top priorities. Indeed, every year, we hosted a regional seminar of law enforcement agencies in the Pacific Rim for this purpose. We also published quarterly regional newsletter for exchange of information amongst the participating agencies.
Conclusion
I believe an international forum like this provides an excellent opportunity for us to share experience and to work things out. We should make good use of this opportunity, particularly the closed door session for law enforcement agencies tomorrow,
�� to exchange modern investigation techniques
�� to explore how to further enhance our mutual legal and investigative assistance schemes
�� to consider the feasibility of establishing an international association of anti-corruption agencies, similar to the Interpol, in order that member agencies can exchange corruption intelligence and have a clear channel of communication for mutual investigative assistance.Finally, before I conclude my presentation, I’d like to share with you my dream. For 25 years I have been dreaming for a dedicated ICAC headquarters building. At the moment our offices are scattered around in different places. I am pleased to note that the government has now agreed in principle to let us have our own headquarters building, so it is hoped that when you come back for the 30th anniversary conference, the ICAC building will be there as a strong symbol of the top government support and independence.
Thank you.
March 1999