"Injustice in the end produces independence," said Voltaire. In 1973, the then governor, Sir Murray MacLehose, told the Legislative Council that good governance in Hong Kong required a dedicated anti-graft body, outside of the police force, noting that "clearly the public would have more confidence in a unit that is entirely independent".
Experience shows that for an anti-corruption agency to succeed, it must be supported by strong laws, properly supervised and be able to discharge its duties without fear or favour. Hong Kong's vaunted policy of zero tolerance of corruption has won it many friends, but it has come at a price.
Although the Independent Commission Against Corruption possesses draconian powers, it is still fully accountable for what it does. The ICAC reports directly to the chief executive and its operations are scrutinised internally, and its officers work closely with the Department of Justice. It has a formidable record in combating corruption. Yet, some people have taken advantage of its good offices to pursue private agendas.
Some complaints received by the ICAC are undoubtedly frivolous or ill-intentioned. There may well be cases in which, as the former deputy commissioner, Tony Kwok Man-wai, has noted, political rivals seek to damage one another by lodging baseless complaints. The ICAC, however, is legally required to take all referrals seriously, notwithstanding its own reservations, and this poses a dilemma.
However tempted the ICAC may be to nip a case in the bud, it must always observe due process, even in flimsy cases. Any complaint of corruption has to be fully investigated. An elaborate system of checks and balances is in place, and a weak case cannot simply be buried.
All corruption investigations are overseen by the ICAC's powerful Operations Review Committee, chaired by Michael Sze Cho-cheung, the no-nonsense former secretary for the civil service, and comprising experts from various walks of life, including law and business. The committee, which receives reports on all corruption complaints made to the ICAC, scrutinises the basis of particular decisions and the way cases are handled. It exercises a vital mandate, and an investigation will only be ended with its agreement.
It is vital that if it becomes apparent that a complaint lacks any element of corruption, and does not otherwise fall within its jurisdiction, the ICAC must speedily resolve it. If there is a suspicion that a non-corruption crime has occurred, it should be referred to the police or other law enforcement agency. There can, after all, be no justification for the ICAC retaining a case which is outside its purview, even if high profile, and the Operations Review Committee must ensure that this does not happen.
If a case is vexatious, the ICAC must be proactive. After all, it is a criminal offence, punishable with a year's imprisonment and a fine of HK$20,000, for a person to make a false report of an offence or to make false statements or accusations. When reports are found to be baseless, the offenders should be prosecuted. If this is not happening, the Operations Review Committee must ask why.
The ICAC, moreover, should consider if the existing penalties for false reporting are adequate, or whether it is time to seek their enhancement.
The ICAC, of course, like Caesar's wife, must be above suspicion. If cases involving political figures are referred to it, everything must be done to avoid any possible conflict of interest. When, for example, the former chief executive, Donald Tsang Yam-kuen, was referred to the ICAC last year for investigation, for allegedly receiving favours from tycoons, the then commissioner, Timothy Tong Hin-ming, who reported to Tsang, very properly announced that he would stand aside from the case (unlike the then secretary for justice, Wong Yan-lung, Tsang's legal adviser and also a Tsang appointee, who, despite urgings, declined to follow suit).
Although the investigation was sensibly entrusted to the capable hands of Tong's deputy, Daniel Li Ming-chak, Li has now retired, and the case is still, inexplicably, being processed. The Operations Review Committee must, in the public interest, crack the whip.
Now that Lew Mon-hung's allegations of impropriety against Chief Executive Leung Chun-ying have been received by the ICAC, the commissioner, Simon Peh Yun-lu, who reports to Leung, must follow Tong's example, and publicly recuse himself. Peh's deputy, Ryan Wong Sai-chiu, a respected veteran, is more than qualified to take full control of the investigation. After all, the secretary for justice, Rimsky Yuen Kwok-keung, Leung's legal adviser, has already declared his own withdrawal from the case.
As recent cases have shown, the investigations handled these days by the ICAC are increasingly complex and sensitive. They often involve tricky legal, technical and public interest issues, and a particular type of leadership is now required. Commissioners drawn from the administrative grade or law enforcement, however worthy, may lack the acumen necessary to guide the ICAC at a time of real challenge.
In the early 1990s, as the reunification loomed, the ICAC was fortunate to have been led, successively, by two very experienced lawyers: Peter Allan, a former Crown solicitor, and Bertrand de Speville, a former solicitor general. Each provided steady leadership at a critical time.
In the present climate, with an understaffed and overworked ICAC repeatedly in the firing line, special qualities are once again required at the top. It is now time for Peh, a former director of immigration, to step up to the plate and show his mettle. Cometh the hour, cometh, hopefully, the man.
Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors