Decision not to prosecute ex-ICAC chief needs to be out in the open

For the sake of public confidence in one of Hong Kong’s most important institutions, the government ought to consider ways that are more transparent

PUBLISHED : Friday, 29 January, 2016, 1:25am
UPDATED : Friday, 29 January, 2016, 1:29am

Three separate investigations have publicly censured Timothy Tong Hin-ming for wasting public money by overspending on entertainment, gifts and official visits during the five years he ran the Independent Commission Against Corruption until 2012. This did incalculable damage to the watchdog’s well-earned and widely envied reputation as one of the world’s finest anti-graft agencies. That someone entrusted with its leadership should be responsible shook public confidence. Expectations that he would be held to account legally were understandable. News that he will not, and is off the hook, has sparked wide debate. The Department of Justice says there is no reasonable prospect of securing a conviction if Tong were prosecuted, because of a lack of evidence of corrupt intent or dishonest concealment behind rule breaches including lavish entertainment and gifts, some for mainland officials. This is despite a finding by lawmakers that he hosted 37 meals that exceeded the spending ceiling and another by a government-appointed review that found 42 rule breaches.

However, a British queen’s counsel consulted by the department advised that it would not be appropriate to prosecute Tong for misconduct in office or any criminal offence. Not a few people have found this hard to take, calling the reasons for not prosecuting for violations of the law unconvincing, and for full disclosure of the QC’s opinion. They have compared the decision with the ICAC’s laying of charges against former chief executive Donald Tsang Yam-kuen, cited as an example of no-one being above the law. The decision not to prosecute cannot be said to vindicate Tong. His transgressions fall far short of what is expected of a top official. On the face of it he took advantage of his position as head of the ICAC. It could hardly look worse.

Rightly, we hold our top officials to high standards. But there is no evidence that failure or lack of civil service mechanisms or regulations are to blame. It has to be remembered that the whole affair was revealed by an Audit Commission report – an independent check and balance on the operations of government and public officials.

The department has declined to make full disclosure of its legal advice; the ICAC is covered by legal profession privilege and disclosure could reveal sensitive operational matters. These may be legitimate concerns but, for the sake of public confidence in one of our most important institutions, the government ought to consider whether there are ways to be more transparent.