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ICAC Committee's Independence, Competence Should Be Respected

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ICAC Committee's Independence, Competence Should Be Respected 8 | Thursday, December 27, 2018 HONG KONG EDITION | CHINA DAILY COMMENT HK Editor’s note: China Daily Hong Kong Edition has launched a photo-sharing campaign on Instagram. You can share your photos by tagging #hk24hr, and ICAC committee’s independence, we’ll choose the best ones to publish in the newspaper. Birds at dawn competence should be respected Tony Kwok argues Hong Kong should have full confidence in anti-corruption watchdog’s advice on former chief executive’s case, and that it’s time to end briefing out prosecution cases n recent years, the Hong Kong Bar and a well-known public fi gure. There are also Association has lost much of its pub- two expatriate members — Hans Michael Jeb- lic credibility by, seemingly, taking a sen and Nicholas Robert Sallnow-Smith — both habitual anti-government and anti- very prominent businessmen in Hong Kong. China stance on many controversial Are these people likely to be rubber-stamping issues. The latest such example is its the SJ’s decision, as alleged by opposition law- relentless criticism of the joint check- maker Lam Cheuk-ting? point (co-location) arrangement at the West Tony Kwok Lam’s recent comment that the ORC always IKowloon Terminus of the Hong Kong Section of The author was the fi rst Chinese deputy com- endorses the justice chief’s legal opinion is the Guangzhou-Shenzhen-Hong Kong Express missioner and head of operations of the ICAC really a big insult to them! Lam was so junior Rail Link despite the facility’s substantial and, currently, an adjunct professor of HKU while working for the ICAC that he never had Space and an international anti-corruption advantage of convenience to the public. Well, the chance to attend any ORC meeting, which consultant. they got a big slap on the face recently when explains his lack of real understanding of the the High Court ruled in a judicial review that committee. The ORC would have received Birds fly below pinky clouds in the blue sky of Aberdeen, delivering a the co-location arrangement is both legal and Kong because it’s vested with the responsibil- reports every six weeks on the progress of the feeling of romance as well as freedom. ROY LIU / CHINA DAILY constitutional. ity to check all the law enforcement aspects of ICAC investigation of Leung. The fi nal report In the same vein, the HKBA also launched the ICAC, including whether they have failed should be a full comprehensive investigation a vicious attack, backed with protest marches, to take up any public complaints for investiga- report and the legal advice from the Depart- against Secretary for Justice Teresa Cheng Yeuk- tion, whether they have conducted a thorough ment of Justice should also be comprehensive. wah over her decision not to prosecute former investigation, and whether the decision by the I’m sure all members were well aware of the HK must push forward chief executive Leung Chun-ying for alleg- SJ to prosecute or not to prosecute is proper sensitivity of this case and would have asked edly receiving an inappropriate payment after and appropriate. There are 13 independent all the relevant questions and received satisfac- assuming o ce. members in the ORC — all prominent citizens tory answers before they would have agreed to after a memorable year Their contention is that Cheng should have representing major sectors of our society. On the ICAC’s recommendation to close the inves- sought independent legal advice in the case. the committee’s current membership list, there’s tigation and endorsed the SJ’s decision not to s 2018 draws to a close, But, they should know better that, under all John Yan Mang-yee, who was appointed senior prosecute. Hong Kong has learnt common law countries’ constitutions, the counsel in 2003. In the same batch was former This group of professionals has been monitor- a lot. attorney-general or SJ is always the sole arbi- secretary for justice Rimsky Yuen Kwok-keung ing the investigation closely for four years, and The biggest lesson ter to decide on public prosecutions. I have and other prominent senior counsels Paul Shieh has examined a full investigation report and the Afor the Hong Kong public and, never heard of any case in Australia or Canada Wing-tai and Kevin Zervos, currently a High legal advice. This means they have access to the particularly, its politicians, is of them seeking legal advice from a private Court judge. Yan was called to the Hong Kong case information no less than any independent that we should all work diligent- Ho Lok-sang Queen’s Counsel in the United Kingdom to Bar as early as 1984 and had once served on the private briefi ng counsel would have, if not more. ly and deliver to the best of our The author is the dean of business at Chu determine whether public o cials should be Bar Council in 1993-94. So, is there anyone in So, in this case, is there really any point in seek- ability. For politicians and poli- Hai College of Higher Education. prosecuted. the Bar Association who would challenge Yan’s ing any briefi ng-out private counsel, and costing cymakers, to “deliver” means If their suggestion is to seek advice from a qualifi cation to give his independent legal opin- taxpayers hundreds of thousands, if not millions to serve the people. Gone are Queen’s Counsel in the UK, they should know ion as a member of the ORC in this case? of dollars, in legal fees? the days of empty talk and useless political posturing. Politicians and public that Leung’s case is, basically, an alleged private In addition, there is prominent solicitor John ORC members are always vigilant in their policymakers must set their priorities right, and work within the constraints sector corruption case. The UK did not crimi- Chan Chong-kun, who happens to be a found- examination of the report. During my time, of the law and the accepted norms of society. nalize private-sector corruption until recent ing member of the Democratic Party. there were occasions when the ORC was The recent Kowloon West legislative by-election saw pro-establishment years and, thus, their law development in this The ORC’s chairman is Benjamin Tang Kwok- uncomfortable with the legal advice not to candidate Chan Hoi-yan secure 106,457 votes, or 48.52 percent, of the fi eld is very limited, compared to Hong Kong’s bun. During his tenure as director of audit, he prosecute and urged the SJ to reconsider popular vote, far surpassing the amount of ballots garnered by the Labour 40 years of very well-developed case law on had no hesitation in censuring various govern- and, in the end, the SJ did overturn the legal Party’s Lee Cheuk-yan and former chairman of the Hong Kong Association private-sector corruption in Hong Kong courts. ment departments. advice given by his prosecutor and decided to for Democracy and People’s Livelihood Frederick Fung Kin-kee combined. Hence, it would be tantamount to having a uni- Others on the committee include Dr Kelvin institute prosecution. They are defi nitely not a This is as much a wake-up call for the “pan-democrats” as the victory of the versity student seeking homework advice from Wong Tin-yau, chairman of the Hong Kong rubber stamp and Hong Kong should have full Kuomintang’s Han Kuo-yu over the Democratic Progressive Party’s Chen a secondary school kid! This is absurd, to say Institute of Directors and non-executive direc- confi dence in them. Chi-mai in the Kaohsiung mayoral election. Han is not a native of Kaohsi- the least. tor of the Securities and Futures Commission, The Department of Justice “has been bending ung which is, traditionally, the DDP’s stronghold. It had been unthinkable If it’s suggested that the SJ should seek local hence very conversant in public governance over backward” to accommodate the HKBA in for the DDP to lose. However, Han not only won, but mustered 53.87 percent legal advice, it would have enabled one of the and enforcement issues; Chew Fook-aun, a briefi ng out most of the prosecution cases to of the votes, compared to Chen’s 44.8 percent. HKBA members to fatten his or her purse. qualifi ed accountant and a senior executive private counsel, much to the detriment of the Considering that both Lee and Fung are veteran Hong Kong politicians It should be noted that the justice chief had in a major business enterprises; Irene Chow professional development of public prosecutors. with a long history of serving the local community, Chan is just a novice. already received independent legal opinion Man-ling, a chartered fi nancial analyst in an With the Bar Association showing contempt for Chan said she intended to put citizens’ welfare above politics. Similarly, through the ICAC Operations Review Com- international bank; Professor Paul Man Kwan- the SJ’s constitutional role, it’s time to recruit Han had chosen to put aside political issues that had deeply divided Taiwan mittee (ORC). This is one of the most powerful sing, vice-president of a local university; and more public prosecutors to abolish this ill prac- people, and vowed to fi ght for a better life for the people of Kaohsiung. independent watchdog committees in Hong Dr Tik Chi-yuen,a former Legislative Councilor tice of private briefi ng out prosecution cases. Many young people who had left Kaohsiung for a better life in Taipei and elsewhere actually returned to the city to vote for him.
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