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Misconduct in Public Office

Clear the Air says: she is wrong, yet again which is probably why CY Leung does not want her. 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 ?

Misconduct in Public Office

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

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

read what the ICAC says

Civil service chief faults Tsang for accepting gifts

But Denise Yue, who played role in Leung Chin-man’s job fiasco, says anti-graft rules leave boss in the clear

Tanna Chong 
Jun 21, 2012

The outgoing secretary for the civil service yesterday called Chief Executive Donald Tsang Yam-kuen’s acceptance of gifts from tycoons “misconduct”, but said her boss had not broken any rules because none applied to him.

Denise Yue Chung-yee’s remarks came in response to a question at a farewell media session about the recent uproar over Tsang’s rides on private yachts and jets and his bargain deal to rent a luxury penthouse in Shenzhen.

The scandals have exposed gaps in the anti-graft law, which currently does not apply to the chief executive. An independent commission to review the situation chaired by former chief justice Andrew Li Kwok-nang said earlier this month that the exception was “totally inappropriate”.

“I agree [Tsang’s dealings] were misconduct,” Yue said. “But he did not violate any rule since there was no mechanism whatsoever until Andrew Li Kwok-nang proposed one.”

Yue, who turns 60 in October, will end 38 years of government service on July 1, when she and Tsang leave to make way for the administration of chief executive-elect Leung Chun-ying.

Reflecting on the Tsang case, Yue recalled the conflict of interest controversy row surrounding her decision in 2008 to let former housing chief Leung Chin-man work for a developer with whom he had official dealings. She called the case “a milestone” that taught her a lesson.

In 2004, Leung Chin-man, who was then housing director, played a key role in the sale of a government housing estate to a subsidiary of New World Development at a discount. After retiring four years later, he drew fire when the company gave him a job, a move some saw as a deferred reward for helping the sale.

The scandal led last year to restrictions on post-civil-service employment for government officials. Yue said it was important for government officials to avoid both real and perceived conflicts of interest.

“Apparently there was a gap between my balance and public perception between an individual’s right to work and public interests,” said Yue, who has been leading the city’s 160,000 civil servants since January 2006. “It was a milestone and I learnt my lesson.”

Yue said what she would miss most after retirement was the sense of satisfaction she got from her job, but joked about her retirement plans.

“Maybe I will regain that sense of satisfaction by watching early-bird movies, which are offered at a discount,” Yue said.

Yue has no plans to take up a paid job herself. “Even if I do you do not have to worry about me. I can recite the post-service rules to its last word.”

tanna.chong@scmp.com

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