Throwing the book at a minor offence

'In a handwritten mitigation letter submitted to the District Court yesterday, [Centaline Property Agency chairman Shih Wing-ching] wrote he believed the ICAC might not have enough resources to combat bribery and corruption in the private sector, which he considered more structurally complex than the public turf where the ICAC had its earlier successes.'

SCMP, June 4

What a star. Three of his property agents are convicted for paying referral fees but he stands by them in public, pledges to rehire them, makes it obvious that they have not offended their boss in any way and then, in a letter to the judge, tells the ICAC to grow up.

I think he is right, too. I think it is entirely arguable that the practice of referral fees in the property business does no great harm to society and should never have been made a criminal offence. If reprehensible, it is best left to the companies affected as a matter for internal disciplinary action.

More than that, this case says that legislators should limit themselves to what is possible for them. They do a disservice to society when they pass laws that require far more enforcement resources than are actually allocated to the job. It makes justice fickle, fosters defiance of the law and brands people as criminals when they are nothing of the sort.

What we have at issue here is a very common commercial practice. When A buys from B on C's credit, B shows his appreciation to A with a gift for steering the business his way. Neither of them mentions it to C. It used to be called tea money. We now call it a referral fee. This gift is, of course, invariably straight cash and the sums involved would routinely buy more tea than anyone can drink. What has happened here, you will say, is that C has been cheated and the law has a role to play in upholding C's property rights.