The Recent Scandal of Donald Tsang



"As far as the Prevention of Bribery Ordinance is concerned and as it now stands, the Chief Executive falls outside the ambit of Section 3 of the Ordinance.
Under Section 3, a prescribed officer (includes but not limited to civil servants) must have the general or special permission of the CE before they solicit or accept any advantage. Entertainment means the provision of food and drink and any other entertainment (such as performance including singing, dancing, talk show or magic show etc.) provided and consumed on the occasion but entertainment does not include passage (land, sea or air) and discounts unless the discounts are equally available to everyone (all members of public) such as the offer of trade discount during sales promotion.
Under Section 3, there is no need to prove whether the prescribed officer has done anything in return i.e. by showing favour or assistance whatsoever or the solicitation and acceptance is connected with his official duties as the CE of Hong Kong. From what has been revealed in the press, a civil servant would definitely have committed an offence under Section 3 if he has not obtained the special permission from the CE for accepting what the CE has accepted. Assuming Donald Tsang had not done anything in connection with his official duties in return for the acceptance of the sea and air passages, he still has committed a very serious and stupid mistake in putting his integrity in doubt and bringing disrepute to the Hong Kong Government. Civil servants would definitely have to face disciplinary actions if they do the same as what the CE has done. Is this fair? While we have a higher expectation of the integrity of the CE, he is subject to a much less stringent control!
To be frank, since we do not know who were the owners of the private jet and who were on board the boat and the private jet, it is difficult to know whether those involved have anything to do with the Hong Kong government or to fairly assess whether he has committed any offence sunder Section 4 of the Prevention of Bribery Ordinance or Misconduct in Public Office under Common Law.
In my humble view, members of public would have much higher expectation on the personal integrity of the CE than from an ordinary civil servant. It is illogical that an ordinary civil servant would commit an offence by accepting what Donald Tsang has accepted while Donald is free to accept whatever he likes as long as there is no evidence to show that he has done something in return.
Being the CE, he should avoid not only actual or potential conflict of interests but also perceived conflict of interests. Perceived conflict of interests means that it is whether the members of public would perceive there is any conflict no matter whether there is actual or potential conflict!
Further, the acceptance of an offer of rental which is much lower than the market price is definitely an advantage and the fact that he had exercised his discretion to allow Lee Kwok Cheung to become one of the directors in the radio company of which the landlord ofthe property in Shenzhen is a single major shareholder and the fact that the Shenzhen property owner has offered him rentals much lower than market value has already constituted at least a prima facie case against DonaldTsang. He may be charged under Section 4 of the Prevention of Bribery Ordinance or Misconduct in Public Office, of which the CE has no exemption if the ICAC could secure sufficient evidence to prove that he did exercise the discretion and that the rentals offered to him is indeed lower than market value.
As I said to TVB during an interview the day before yesterday, Donald Tsang must publicly admit his mistake and make a sincere apology to the people of Hong Kong as far as his acceptance of the seaand air passage from his "friends" is concerned and he must reveal the identities of the private jet and boat owners and who were on board the boat and the private jet. In fact he should invite the ICAC to investigate and be cooperative with the ICAC if there is any investigation against him. His explanation that those who have offered him advantages were his personal friends is no defence. Further, those "friends" were not his classmates or people he had got acquainted before he had joined the government! There is definitely a big cloud over head as far as his personal integrity is concerned.
To make this complete, I wish to add one more point : Those who have offered advantages (sea and air passagesor discount) to Donald Tsang might have committed an offence under Section 8 of the Prevention of Bribery Ordinance because, like Section 3, there is no need to prove the offer is an inducement to or reward for or otherwise on account of the prescribed officer doing or not doing anything connected with his official duties as long as the offerors have dealings with the government!
The above is my personal view as a former ICAC officer and a citizen of Hong Kong.
It does not represent EC members of the Legal Subsector of the CE election or the Civic Party. " Thank you

From Stephen Char

 
posted by 查錫我 (Stephen Char) at 10:55 AM, |

5 Comments:

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