Malfeasance -- An Old Problem In A New Era
Mr Tony Kwok Man wai,
Head of Operations,
Independent Commission Against Corruption,
on Malfeasance 13.11.2000
at the First ICAC Symposium
Malfeasance -- An Old Problem In A New Era
Ladies and Gentlemen,
Before I touch on the problem of malfeasance, and how it affects our anti-corruption work, I think it is useful to take stock of what we, the ICAC have learned in our 26 years’ fight against corruption in Hong Kong.
In my 25 years’ experience with the ICAC and as Head of Operations, I believe there are four very important critical factors of success in effective corruption investigation:
1. Firstly it is the top government support - in a closed door forum like this, I want to be honest in putting this above “public support”. Top government support means the top political will which enables us to investigate corruption independently without any undue interference from any quarters. This is exactly what the HK ICAC enjoys now. We have the full backing of the Chief Executive who has told us time and again his determination to ensure that the HKSAR remains a clean society.
2. Second is Public Support - I don’t think I need to expand on the importance of this in front of this audience, as you are all distinguished law enforcement leaders. In the ICAC, we do enjoy wide public support. Every year, our annual public opinion survey shows that nearly 99% of the population supports the work of the ICAC.
3. The third is Professionalism – Corruption is a secretive crime committed mostly by consenting parties. Many of our targets of investigation are themselves professionals. We must maintain a high degree of professionalism to enable us to have an edge over the corrupt. In this, we are most fortunate to have the full backing of a dedicated team of government counsel from the Department of Justice in providing expert legal assistance in our work.
4. Last but not the least – effective legislation - I think we have very effective anti-bribery law in the form of the Prevention of Bribery Ordinance. This Ordinance covers all the different scenarios in the offering, soliciting and accepting of advantages in the public and private sector. Indeed we have two offences which have attracted considerable controversies in the early days of the ICAC, ie. Section 10 makes it an offence for any government servant to have in his control disproportionate assets which he can’t explain, and section 3 simply makes it an offence for any government servant, without the Chief Executive’s permission, accepts a gift or loan of certain amount, even without evidence of any corrupt motive. Over time, these statutory offences are accepted as a powerful and inevitable tool in weeding out corruption in the civil service. The point I am trying to make is that effective legislation is very very important in enabling success in the fight against corruption.
We are also governed by another ordinance called the ICAC Ordinance. It sets out the duties of the Commissioner and the ICAC. Amongst them, it is stated very clearly that it is the statutory duty of the Commissioner to investigate corrupt conduct of civil servants.
You may now appreciate why I have spent some time on the above background information. Because the central theme of my talk is that malfeasance is undoubtedly a form of corrupt conduct. It is a growing problem, not just in HK, but also I believe in many countries. In HK, whilst we, the ICAC have a statutory obligation to investigate such corrupt conduct, it does not even exist in our statute book. So what should we do.
Back to the title of my talk, “Malfeasance - an old problem in a new era” How old! Well, in the Old Testament, back in 1000BC, King David made use of his authority to transfer a soldier to frontline battles to get killed so that he could covet the latter’s beautiful wife! This is of course not the type of malfeasance I have in mind today.
Hong Kong Experience
Generally speaking, the HKSAR civil service is clean and bribery is not a serious problem. However, in recent years, there is an emerging new trend of isolated officers abusing their authority for suspected personal gains. I give you some typical real examples:-
A very senior government official was suspected to have delayed in the gazetting of restrictions of plot ratios in a residential area, whilst his family expedited the sale of the family’s property in that area, at a high price. It is interesting to note that as the result of the delay in gazetting, many building plans with much higher plot ratios were allowed to proceed and that area has become one of the most traffic congested area in Hong Kong.
A senior official in the Inland Revenue Department was suspected to have shown favour in approving tax settlement cases handled by a tax consultant firm owned by his wife.
A senior official in the Education Department, who was in charge of the revision of curriculums in text books, was found to be a co-author of a new text book which contains the revised curriculum, and the book hit the market well in advance of any other publication.
A postal officer deliberately set aside a large quantity of First Day Cover stamps for self purchase, whilst long queues of people had to wait overnight, and yet were unable to buy the stamps subsequently. The postal officer made a huge profit in selling the stamps to the stamp dealers.
There are also a number of other cases where government officials responsible for government contracts abused their authority in facilitating the awarding of contracts to companies owned by their close relatives.
In 1998, we referred 51 cases of alleged abuse of authority by civil servants to the Civil Service Bureau for consideration of disciplinary action. In 1999, there were 72 such cases, an increase of 41%
Many of the above cases have caused public concern and are regarded by the media as public scandals. There are mounting pressure from public opinions, newspaper editorials and our legislators demanding effective remedial steps be taken.
Having said that, let me assure you these cases are relatively small in number, compared with our establishment of over 180,000 civil servants. Our civil service remains clean and efficient. There is no slippage of civil service ethical standard. It is only that this kind of corrupt behaviour, I suspect, occurs even in the best of civil services and hence this is a mutual problem we should all address to-day.
Such misuses of office for personal gain are generally viewed by the community as a form of corruption. However, they are not covered in our statute, as no offering or accepting of bribe takes place. This appears to be a gap in our anti-corruption law. Fortunately, the Department of Justice, through research, has discovered a common law offence of “Misconduct in Public Office”.
It originated in an 18th Century case law but since then, there have been very few prosecutions and hence the full scope of such offence is not entirely clear.
Summing up from the limited case laws, it would appear that the offence covers a situation where a public officer wilfully neglects to perform an official duty. The neglect has to be culpable to such a degree that the misconduct impugned was calculated to injure the public interest so as to call for condemnation and punishment.
It should be noted that corruption and personal gains are not mentioned as ingredients of the offence. Indeed in the case of R v Dytham (1979), a police officer was prosecuted for failing to intervene in a public fight where a man was beaten to death outside a nightclub. As you can see, the type of conduct it captures can be extraordinarily broad. Indeed I wonder how many of my colleagues in the civil service are aware of such criminal sanction for gross negligence of duties.
So far, we have instituted 13 prosecutions under this common law. 9 had failed for one reason or another and 4 are still pending trial.
The Problem of Common Law
We consider it unsatisfactory to use the common law offence as a sanction for the corrupt conduct of malfeasance:
• It is an 18th Century old case law that is no longer appropriate to the changing condition of our modern society.
• The common law offence is uncertain and confusing in its scope and elements and dependent upon old English law. For example, there is little guidance in case laws on what constitutes “injurious conduct” , what makes it conduct of a kind which calls for “condemnation and punishment” Are these matters to be decided by a judge or jury?
• As the offence is vague as to precisely what are the essential ingredients required to establish a charge, and the evidence required to prove such a charge, it makes investigation work most difficult.
• Because it is not on the statute, it also makes it difficult to develop public awareness of the offence amongst the civil servants and deprives the public of ready access to the law.
• It reduces the deterrent effect of criminal law and hence civil servants may be tempted to engage themselves in such behaviour on the misperception that it would only be a disciplinary matter.
• As it is a common law offence, the sentence is not defined, hence it goes against a principle of legal policy that a person should not be penalised except under clear law.
• It goes against the trend of most common law countries who are taking steps to codify all common law offences.
• Most important of all, it is unfair to the persons prosecuted under this common law offence. For the cases we have dealt with, nearly all defendants expressed bewilderment of the existence of such an offence and to a certain extent, this applies to the legal counsel and judicial officers as well.
Our proposed solution to the problem is that the common law offence related to the corrupt conduct should be codified and included in our anti-corruption legislation in the form of “Misuse in public office for personal gain”. Such a statutory offence will ensure fairness to all parties concerned and to enhance the awareness amongst civil servants against this sort of corrupt conduct.
In determining the essential ingredients of the offences, we propose to emphasize the following :
• the misuse in public office must result in financial gain, either by himself, his relatives or business associates. Mere abuse or neglect of duty will not be prosecuted under this offence.• adequate safeguards should be built into the offence, such as
- the abuse or misuse of office must be wilful
- there should be a defence of "without lawful authority or reasonable excuse"
- prosecution should only be instituted with the consent of the Secretary for Justice, similar to bribery offences
The above are just our initial thoughts at the moment. What we want to emphasize is that we are not proposing to create a new offence. We merely propose to codify an existing common law offence. However, it is important that this problem should be properly resolved because as I have mentioned earlier, effective legislation is the most important foundation of an anti-corruption strategy.
We understand that many jurisdictions already have a statutory offence covering malfeasance and therefore this panel is an ideal forum for us to share our thoughts and experience on how to solve this problem.
Just in case you can provide me with any useful information on this subject after the Symposium, I have left my e-mail address on the screen.