Hongkong's judiciary: last bastion of the people

SCMP May 19

 

Where can Hong Kong people look for accountability of the government, its ministers and bureaucrats? Clearly, they cannot look to Chief Executive Tung Chee-hwa to make ministers accountable to principles, rather than to his own whims and preferences. The scandal surrounding Financial Secretary Antony Leung Kam-chung and the purchase of his new Lexus, and episodes such as the hounding of academic Robert Chung Ting-yiu by another of Mr Tung's personal appointees, demonstrate that.

Constitutionally, Mr Tung is accountable to the central government and the National People's Congress, not Hong Kong people. Central government officials are unlikely to abandon their man. Loss of face is more important than the quality of leadership in Hong Kong.

What, then, of Legco. It showed last week that the people cannot look to it to hold Mr Tung accountable. That is hardly surprising, given the narrow interest groups - often with their eyes on contracts and other state favours here or on the mainland - which have the balance of power in the unrepresentative chamber. But all is not lost. Hong Kong's judicial system is one of the few institutions which has gained in public esteem. For all its flaws - costs and archaic procedures among them - it has enhanced its reputation since the handover.

Elsewhere, judicial activism can run to ridiculous extremes - but in Hong Kong, where other restraints on bureaucratic and corporate power are so weak, its potential is clear and needs to be developed by public action.

One of the more encouraging signs was a Court of Final Appeal judgment last year rejecting the appeal of a senior government official convicted of the common law offence of misconduct in public office. The official had failed to disclose his interests when steering some contracts to a company - controlled by a close relative - which was not properly qualified for the work. The common law offence is very broad, but the court accepted that the offence "is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers". It was not necessary to prove the officer personally benefited from his misconduct, only that the misconduct was wilful and serious.

This judgment was important and sweeping. Hopefully, the law will be applied again by the government against its erring officers. Failing that, cases should be brought by the public.

The ruling should also have made Mr Tung sit up. Did he disclose the large interest of the Li Ka-shing family-owned companies in his own family's shipping company prior to the Pacific Century Group being awarded the Cyberport contract on favourable terms without going through any of the normal tendering procedures? Was this not partial behaviour and damaging to the public interest?

At the very least, at the civil law level, the owners of non-subsidised competing office space could argue that the partiality amounted to misconduct by the government in general, if not by any particular individual.

The prison term of former legislator Gary Cheng Kai-nam, found guilty of abusing his power, may also seem unduly harsh, given the general past tolerance of failure to reveal conflicts of interest, particularly in cases where public servants move on to become executives of large companies for whom they had previously made favourable decisions. A more frequent problem than partiality is the secrecy and stubbornness demonstrated by the bureaucracy. Hopefully, the challenges are just beginning. Judgment is awaited in the case brought to prevent government-ordained reclamation of the Wan Chai waterfront, which opponents say is contrary to the Protection of the Harbour Ordinance. Whatever the result, it is at least encouraging that the court was willing to hear a case which challenges such unaccountable institutions as the Town Planning Board. Next on the list of projects hatched in quiet corners between ambitious bureaucrats and developers could be the plan for a $16 billion prison on Hei Ling Chau.

The fundamental issue with this and other schemes advanced in the name of progress is the secrecy with which they are moved forward and the lack of public discussion of alternatives. Behind most secrecy lies a desire not to speed up decision-making, but to avoid light shining on cronyism.

Misconduct in public office can also be as much about omission as commission. Deliberately failing to carry out one's duty as an official for fear of being disadvantaged is also a matter which should be brought to the attention of the courts. For example, as Kevin Sinclair has pointed out repeatedly in the South China Morning Post, land use regulations mean nothing in much of the New Territories thanks to the unwillingness of officials to take on local vested interests.

In the private corporate sector, it is encouraging to see shareholder activist David Webb draw attention to the conflicts of interests among board members of many listed companies and the abuse of rights to place shares in favour of those close to management, resulting in the dilution of interest of outside shareholders . There is a huge problem here, given shareholder lethargy and the preference of the stock exchange and the Securities and Futures Commission to protect the interests of issuers and managements against those of the investing public. But here again, there is potential to use the courts to redress the balance. The principle of breach of trust towards shareholders at large is as fundamental to private corporate governance as misconduct in public office is to civil servants.

Likewise, without wishing to encourage a culture of blame, there needs to be readier access to redress for victims of government and corporate failure due to negligence and wilful avoidance of public or corporate responsibility. Could the Sars outbreak, and Amoy Gardens in particular, provide impetus?

Unfortunately, the cost of bringing action against directors of the many listed companies in Hong Kong who have exploited their outside shareholders has deterred activism. The exploiters have the money to defend themselves, the victims are too impoverished to fight. Like libel suits, the cost of civil law provides a means by which corporate knaves and crooks can deter honest reporting of their activities.

But the instruments do exist, and a public deprived of democratic means of enforcing accountability on government should redouble its efforts to use the one choice still left.

 

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