Law can silence the whistle-blowers

ALLEGATIONS levelled against the Independent Commission Against Corruption and Correctional Services Department last week pointed to cover-ups by officials. While the public focus is on the contents of these disclosures and in the case of the ICAC maybe the motives behind them, we should perhaps also spare a thought for the sources of these kinds of revelations, the whistle-blowers who dare to tell the truth as they see it.

Under normal circumstances, Alex Tsui Ka-kit, formerly deputy director of operations at the ICAC, would not have claimed that the commission had bugged the phones of former secretary for transport Yeung Kai-yin and former executive and legislative councillor Rita Fan Hsu Lai-tai.

Nor would Mr Tsui have said the commission drew up a list of people whose private lives were put under surveillance, allegedly for political reasons.

In fact his allegations, still being evaluated by the Legislative Council's security panel, have been described by the Governor Chris Patten as totally groundless.

But the more important point is, had Mr Tsui not actually been sacked for reasons he found unacceptable, would he have made these allegations? The answer is no. Under the ICAC's strict rules, which he would have had to follow and enforce on his subordinates, he would have been barred from speaking out.

If Mr Tsui had retired from the ICAC in the normal way, it would still have been unlikely that he would have washed the ICAC's dirty linen in public because to do so would have still been against the rules.

As for the allegations against the CSD of using excessive force to remove 1,500 boat people from the Whitehead Detention Centre, Commissioner for Correctional Services Eric McCosh will probably want to find the source who leaked the actual number of tear-gas canisters fired and the number of Vietnamese injured.

Was it one of the 1,250 CSD officers and policemen involved in the operation who blew the whistle, causing the department so much embarrassment and prompting the Governor to order an independent inquiry? If the source could be traced to one of the officers in the disciplinary services, it is likely that he or she would be subject to disciplinary action, including demotion and even dismissal.

The Civil Service Regulations provide that ''an officer, whether on duty or on leave, may not publish anything which may reasonably be regarded as of a political or administrative nature, without the permission of his head or deputy head of department or head of grades''.

The price of blowing the whistle can be high for civil servants who dare to speak out.

In Britain, which forms the basis for Hong Kong's legal system, the case of Graham Pink shows how little protection the British common law system offers whistle-blowers.

Mr Pink, a nurse at the acute geriatric wards of a hospital in Stockport near Manchester, was concerned patients were dying because of a lack of care resulting from staff shortages.

In 1992, after a series of letters to his superiors and the powers-that-be, including the British prime minister, failed to increase staff numbers, he released his correspondence with the authorities to the press.

The leak sparked off a national debate on the standard of care in geriatric wards, but it also brought about Mr Pink's dismissal.

A subsequent set of guidelines prepared by the National Health Service (NHS), while stressing that staff who raised problems with managers must not be penalised, also stipulated that unauthorised disclosure to the media would represent a ''potentially serious breach of contract''.

The stipulation was based on the common law principle that employees have ''an implied duty of confidence and fidelity''.

The guidelines also said while staff might, as a last resort, ''contemplate'' disclosing unsatisfactory conditions to the media, they should ''contemplate'' the consequences before doing so.

Mr Pink brought a case of unfair dismissal against the NHS at an industrial tribunal. He won, but only because public pressure forced the NHS to withdraw from the tribunal.

In Hong Kong there has been no equivalent of Mr Pink, and, if there was, local lawyers are not optimistic he or she would get a satisfactory settlement because there is no remedy in law for an employee, in the public or private sector, who is sacked for breach of confidence. IF a person was sued for breach of confidence, the defence could argue the unauthorised disclosure concerned was a matter of public interest, one lawyer said. ''But public interest is not a tool I could use to have the person reinstated,'' she added.

Even in the United States, where the culture as a whole encourages people to speak out, the luck of whistle-blowers is not necessarily better.

The media there has chronicled many cases where whistle-blowers, who brought embarrassment to their employers, were harassed and victimised.

Nevertheless, whistle-blowing can also be financially rewarding if one happens to work in the defence industries.

Under the False Claims Act originally passed in 1863, anyone who provided information on racketeers who profited by selling defective ammunitions to the then Union Army was rewarded.

An updated version of the law now grants whistle-blowers 15 to 25 per cent of money the government is able to claw back from corrupt government contractors if they have provided compelling evidence of fraud.

A former General Electric employee was awarded US$13.4 million (about HK$104 million) for exposing a massive fraud against the US Government, prompting many other employees of government contractors to blow the whistle.

But as a general rule, whistle-blowers are more likely to be victimised than rewarded even though the community benefits from their speaking out. In fact, the absence of any protection for whistle-blowers in most countries places an enormous burden on people who are knowledgeable about improper practices within their organisations.

This predicament was brought to light by a case in France where two doctors at the National Centre for Blood Transfusion were convicted last year for allowing the continual supply of blood products contaminated by HIV to haemophiliacs. One of the doctors actually protested to the centre's management against the supply, but to no avail.

However, he was still charged with not telling the truth to the haemophiliacs' association. Had he told the association, he would have been flouting the centre's rules and it was an open question whether the subsequent row would have enabled him to keep his job.

The French court's decision is akin to saying that knowledgeable whistle-blowers have a duty to blow their whistles when the circumstances are appropriate. The ruling is cold comfort to anyone who possesses knowledge of wrong doings.

Should he or she keep quiet and face being punished for not speaking out or should he or she speak out and face the sack? Perhaps Mr Tsui could share with us his thoughts when his former boss Jim Buckle allegedly told him to prepare a list of political targets to be investigated by the ICAC.