SCMP – 21 June 2012

We have been alerted to an interesting wrinkle in the case of Chief Executive Donald Tsang Yam-kuen and the two holiday trips he took on private jets. Readers will recall that several months ago, Tsang admitted flying to Phuket with his wife on a private jet. He then made great play of saying that he paid for the trips. “I always pay for the trip at the market price, even though this may give an impression of being petty-minded,” he had said on RTHK.

In most places, it is illegal for operators of private jets to accept payment for trips. It is certainly the case for private jets registered in Hong Kong, where both the operator and the pilot can be held liable for breaking licensing laws as private jets and jets used for taking paying passengers have different licences. So Tsang may have unwittingly dobbed his tycoon-friend in. It was either that or say – horror of horrors – the flight was free.

http://www.asiaone.com/News/AsiaOne%2BNews/Asia/Story/A1Story20120621-354383.html

HONG KONG – Hong Kong’s leader-elect on Thursday publicly apologised for an illegal glass canopy at his home, months after his election rival admitted to building an unauthorised basement.

In a city where people are regularly prosecuted over illegal additions to their homes, Leung Chun-ying said the canopy had been demolished as soon as he realised it had been built without the necessary approvals.

“I tender my apologies to the public for this oversight. It was not intended,” he told reporters.

“I never tried to hide this from the public,” he said, noting that he had hosted many journalists in his home and showed them around his cherished vegetable patch in his back yard.

The glass canopy measured 110 square feet (10 square metres) and hung over the back door leading into the garden.

“I want to stress this was a glass canopy, not a glass house,” the incoming chief executive, or de facto mayor of the southern Chinese city, said.

Leung was chosen to replace outgoing chief Donald Tsang by a pro-Beijing committee in March, promising to improve governance and uphold the rule of law in the former British colony of seven million people.

His main rival in the election race, Henry Tang, was engulfed in scandal during the campaign when he admitted to having built an elaborate entertainment den below his luxury home without construction permits.

Clear the Air says: Denise Yue is wrong, yet again. Misconduct in public office , a common law offence, does apply to Tsang , and Henry Tang also, unless the two did not hold public office and were not paid from Government funds ?

Principle

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

Definition of the offence

The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 (‘AG Ref No 3’).

The offence is committed when: http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/

• • a public officer acting as such
  • wilfully neglects to perform his duty and/or wilfully misconducts himself
• to such a degree as to amount to an abuse of the public’s trust in the office holder
• without reasonable excuse or justification

http://www.onc.hk/pub/oncfile/publication/criminal/1203_EN_Is_Donald_Tsang_Guilty_of_the_Offence_of_Misconduct_in_Public_Office.pdf

Read the Legal opinion attached

Cap 221   Section: 101I Punishment of indictable offences 10 of 2008 09/05/2008

(1) Subject to subsections (2) and (5), where a person is convicted of an offence which is an indictable offence

and for which no penalty is otherwise provided by any Ordinance, he shall be liable to imprisonment for 7 years and a fine. (Amended 12 of 1986 s. 2; 50 of 1991 s. 4(1); 49 of 1996 s. 6; 10 of 2008 s. 15)

www.oecd.org/dataoecd/0/5/35592738.pdf

read what the ICAC says

1.                      Sir Anthony Mason NPJ stated:

“… to quote the words of PD Finn, ‘Public Officers: Some Personal Liabilities’ (1977) 51 ALJ 313 at p 315: ‘The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.’  It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held and the nature of the conduct said to constitute the commission of the offence.”[1]

2.                      The centrality of abuse of the public office in the sense discussed above is reflected in Sir Anthony Mason NPJ’s encapsulation of the elements of the offence:

“In my view, the elements of the offence of misconduct in public office are:  (1) A public official;  (2) who in the course of or in relation to his public office; (3) wilfully and intentionally; (4)  culpably misconducts himself.  A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or

discretion which he has by virtue of his office or employment without reasonable excuse or justification.”[2]

3.                      The reformulation runs as follows:

“The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.”

legalref.judiciary.gov.hk/doc/judg/word/…/FACC000003_2011.docx

[2] Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §84.

Download PDF : 1203_EN_Is_Donald_Tsang_Guilty_of_the_Offence_of_Misconduct_in_Public_Office

http://online.wsj.com/article/SB10001424052702303836404577474313122249478.html

By TE-PING CHEN

HONG KONG—Donald Tsang is preparing to leave office after seven years as Hong Kong’s leader mired in scandal and record-low approval ratings, tainting a legacy that until just a few months ago would remember him for his market acumen and decades of loyal government service.

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Associated Press

Hong Kong Chief Executive Donald Tsang attended a question-and-answer session at the Legislative Council in Hong Kong on March 1.

This year, a series of scandals pointing to a cozy relationship with local tycoons, including acceptance of private jet and yacht rides, provoked public ire and drew thousands to street protests.

As the end of his term nears, critics are lambasting the 67-year-old Mr. Tsang, nicknamed “Bow Tie” for his accessory of choice, mostly for failing to address the city’s widening wealth gap or to boost its competitiveness.

His abrupt fall from grace followed a career that had earned praise for several accomplishments, including steering Hong Kong through the global financial crisis and helping pass the city’s first minimum-wage bill. He was awarded British knighthood just before Hong Kong’s 1997 handover to China. He is a practicing Catholic known to attend church every morning.

Mr. Tsang’s support level has dropped to 39%, his lowest ever, according to a poll taken this month by the University of Hong Kong, compared with a popularity rating of 72% when he first took office in 2005.

“It’s disappointing,” says political observer Cheung Chor-yung of Mr. Tsang’s final months in office. “People didn’t anticipate that he would leave office like this.”

Mr. Tsang, who steps down on June 30 as chief executive after 45 years in government, will be succeeded by former cabinet leader Leung Chun-ying, who was chosen to lead Hong Kong on a platform promising affordable housing and a government free of ties to powerful tycoons. Mr. Leung was selected by the city’s election committee after lobbying by Beijing, a choice that underscored the public’s broad resentment over Mr. Tsang’s administration.

Mr. Tsang, for his part, had resisted calls to resign and repeatedly issued tearful apologies for his errors in judgment, which include staying at luxury hotel suites costing more than US$6,000 a night on official trips, a sum nearly three times the local median monthly income.

He admitted to legislators in a recent session that he failed to adequately address the city’s wealth gap, currently the highest in the developed world.

“Before, I always believed that you just needed to make the economy grow, to make the pie grow bigger—and through the trickle-down effect, every level of society could benefit,” he said. “But practice and theory aren’t the same thing.”

His office didn’t return calls seeking comment on Monday.

Under Mr. Tsang’s administration, the ranks of people in poverty rose 5.4% to 1.2 million, while the waiting list to receive public housing—home to nearly half the city’s population—also expanded. Last year, the average wait time was two years.

Meanwhile, the city’s fiscal reserves ballooned, growing from 296 billion Hong Kong dollars (US$38 billion) in 2005, when Mr. Tsang took office, to HK$679.9 billion this year. Such growth has been fueled, in part, by a surge in Hong Kong’s property market, which has seen prices rise 82% since late 2008. The government, which owns all land in the city, has been a major beneficiary of the boom.

Last year, the government used part of its surplus to give HK$6,000 payments to all permanent residents, a move widely panned by lawmakers and administration critics.

“The government isn’t without money,” says Christine Fang, who heads the Hong Kong Council of Social Services. “But they just give it out as candy. There’s no real planning.”

As a seasoned bureaucrat, Mr. Tsang was criticized for being too hesitant in his approach. “He didn’t need to account to the people, and of course he didn’t want to bite the hand that feeds him,” said Alan Leong, member of the city’s Civic Party who unsuccessfully ran against Mr. Tsang for the city’s top job in 2007.

In his previous role as the city’s finance chief, however, Mr. Tsang won wide praise for successfully staving off short-sellers and currency speculators during the 1997-1998 Asian financial crisis by buying billions of dollars worth of stock in Hong Kong-listed companies.

In 2005, Mr. Tsang—then the city’s No. 2 official—was tapped for leadership by Beijing after mass protests effectively ousted his predecessor, Tung Chee-hwa, over the former chief executive’s handling of a severe acute respiratory syndrome, or SARS, outbreak, and for controversial antisubversion legislation. Mr. Tsang was selected for his post not by popular vote, but by an election committee of 800 largely pro-Beijing business and political elites.

Mr. Tsang’s administration will be remembered for a number of accomplishments, among them helping successfully shepherd the minimum-wage bill, as well as a bill to ban anticompetitive practices. Still, the minimum wage’s benefits have been offset by rising inflation, particularly food prices, which rose 7% in 2011. Legislators likewise say the city’s competition bill—passed last week—has been watered down.

Under Mr. Tsang’s watch, Hong Kong weathered the global financial crisis relatively well, helped by the government’s transparent communications and tightening measures, says HSBC economist Donna Kwok.

Mr. Tsang’s team also helped successfully launch and develop a robust offshore business for the Chinese yuan in the city, capitalizing on efforts to internationalize the currency. In 2011, for example, Hong Kong handled 1.9 trillion yuan ($298 billion) in trade settlement and clearances. Meanwhile, retail growth has climbed, fueled by millions of tourists from across the border.

“The continued resilience of the job market and consumer spending is reflective in part of all the ground work that the authorities have done,” said Ms. Kwok.

However, Mr. Tsang’s successor faces a host of problems, including levels of air pollution that surpass most major Chinese cities, and an international school system oversubscribed by locals and expatriates. Surveys repeatedly indicate such poor air quality and difficulty finding schools have made regional rival Singapore—whose gross domestic product eclipsed that of Hong Kong in 2011— a more attractive base for expatriates in the region.

—Trinna Leong
contributed to this article.

http://thestandard.com.hk/news_detail.asp?we_cat=11&art_id=123657&sid=36791652&con_type=1&d_str=20120621&fc=7

Phila Siu

Thursday, June 21, 2012

The man tipped to become the next housing chief says property prices are so high in popular urban areas that he cannot afford to live there.

Anthony Cheung Bing-leung, president of the Hong Kong Institute of Education, said he is moving to somewhere else in Tai Po when he vacates the property that comes with the job which ends on June 30.

“I have looked at a lot of housing information in urban areas and the prices are very high,” he said.

“That’s why I will be staying in Tai Po. I cannot afford to move to the urban areas.”

Cheung, also chairman of the Housing Authority’s subsidized housing committee and an Executive Council member, is moving into a 2,000-square-foot apartment.

“Can many in the new generation afford the downpayment within 10 years of their graduation?” he asked.

“If we use this criteria, it seems property prices at present are very high.

“If many people think the government must intervene, the government should consider doing so.”

But he said it would be wrong to make the generalization all properties in Hong Kong are too expensive as prices reflect supply and demand.

Cheung agreed with Chief Executive-elect Leung Chun-ying’s earlier proposal that property sales in some projects should be made only to Hongkongers.

The proposal was part of Leung’s election platform, which was based on helping people who cannot afford a private flat and are also not eligible for subsidized housing.

Cheung believes this proposal can be carried out by organizations such as the Hong Kong Housing Society and the Urban Renewal Authority.

It should be implemented because there has been concern that overseas buyers will drive up prices, he added.

However, Leung has since changed his stance. On Monday he said it was not time to implement this proposal because the entry of mainlanders into the market has not greatly affected Hongkongers.

Cheung also said that if the prices of new subsidized flats are set at 70 percent of market levels, they may still be too high for the target market.

But the Housing Authority has not made a decision on price levels yet, he added. The final level will be one that the public will find affordable.

Meanwhile, Cheung said the Hong Kong Institute of Education is now being run as a university, though it will be about two years before it can be accredited as one

Teflon man SCMP Lai See    20 June 2012

We see that Edward Yau Tang-wah, the former secretary for the environment, has landed another government job as director of the chief executive’s office. Although well-flagged, it is still shocking that someone who performed so badly can waltz into another job.

Jim Middleton, chairman of Clear the Air, put it more strongly: “Normally, someone who totally failed in his job and visited overseas 59 times in 60 months at public expense whilst his portfolio, the local stagnant stinking air and environment worsened, should be fired.”

One wonders how this happened. Was there a deal? Yau was assured that if he just sat there for five years and did nothing at the Environment Bureau, Donald Tsang Yam-kuen would explain things to his successor to ensure Yau wasn’t slung out of the government?