Sovereign immunity is a legal doctrine by which a sovereign cannot commit a legal wrong, and is immune from criminal prosecution. In England, in earlier times, it was the sovereign who created the courts, which had no power to compel the king or queen to submit to their authority, given that their mandate was solely to protect the sovereign’s subjects. In the United Kingdom now, as well as in the Commonwealth countries of which she is head of state, the queen cannot be convicted of a criminal offense.
Indeed, as prosecutions, in all those places, are brought in the queen’s name, she could not prosecute herself. In the unlikely event, therefore, that she committed a crime, the queen would face no consequences, short of abdication, as she transcends the law. This situation is reflected in the legal maxim, “the queen can do no wrong”.
In colonial Hong Kong, the governors, as the sovereign’s representative, enjoyed a similar immunity from criminal prosecution. The notion that a governor could, for example, be charged with dangerous driving, shop theft, or criminal damage, and would then have to appear in the magistrate’s court to defend himself, was unimaginable, and never arose. If an offense of any gravity occurred, it would have been dealt with by removal from office, followed by possible proceedings in the UK.
Before 1997, the governors could not be prosecuted for an offense of corruption, contrary to the Prevention of Bribery Ordinance, although, for example, the chief secretary, as deputy, could. This, of course, was less than satisfactory, as it meant that they, alone of public servants, were above the law. After the reunification, however, this anomaly was rectified, and the most serious POBO offenses were extended to cover the chief executive, which was widely welcomed.
They can, therefore, now be prosecuted for bribery (Section 4, punishable with a fine of HK$500,000 ($64,300) and seven years’ imprisonment), bribery over the procurement of government contracts (Section 5, punishable with a fine of HK$500,000 and 10 years’ imprisonment), and, most serious of all, possession of unexplained wealth (Section 10, punishable with a fine of HK$1 million and 10 years’ imprisonment). The only offense to which the chief executive did not become subject after 1997 was the POBO’s most minor offense, and this is the one which prohibits officials from soliciting or accepting an advantage without the chief executive’s permission (Section 3, punishable with a fine of HK$100,000 and one year’s imprisonment; “the Section 3 offense”).
As to what constitutes an “advantage” under the Section 3 offense, the term is broadly defined (Section 2). It includes, for example, a gift, an employment, a payment, a service or a favor, but does not cover entertainment. Although a chief executive can grant a subordinate permission to accept an advantage, he or she obviously cannot, unless the whole system were to be turned on its head, grant it to themselves.
In 2012, the exclusion of the chief executive from the ambit of the Section 3 offense attracted public attention when the former chief executive, Donald Tsang Yam-kuen, was suspected of accepting bribes from a businessman. He established a committee, chaired by a former chief justice, Andrew Li Kwok-nang, to examine the situation regarding the acceptance of advantages, and make recommendations. When it reported, the committee concluded that the chief executive’s exemption from the Section 3 offense was “totally inappropriate”, and that, if a chief executive wanted to accept an advantage, permission should be obtained from a three-member statutory independent committee, appointed jointly by the chief justice and the president of the Legislative Council.
If, therefore, a chief executive accepted an advantage without the committee’s permission, he or she would become criminally liable. This recommendation, of course, required a change in the law, as a prosecution is not possible on the current formulation of the Section 3 offense. By stipulating, in the 1970s, that it was the governor who grants permission to an official to accept the advantage, the legislative intent was that the governor would be beyond the ambit of the Section 3 offense, with any possible issues involving his integrity being dealt with separately.
That being so, if a governor received a gift from somebody, he was trusted to decide on its most appropriate disposal, just as the chief executive is now. The POBO, moreover, was a part of the body of laws that was carried over into the Hong Kong Special Administrative Region by the Basic Law (Art.8), and was thus deemed by the central authorities to be compatible with the new constitutional order. To subject the chief executive, as Li’s committee recommended, to restrictions which had not existed under the POBO for some 50 years, would have marked a drastic shift, with wide implications.
On Dec 1, 2020, the chief executive, Carrie Lam Cheng Yuet-ngor, having earlier favored a change, indicated that the Section 3 offense would not be extended to cover her office, as this would affect her “constitutional role” in the political system. This, presumably, reflects the view of legal scholars and others that, since the chief executive is appointed by the central authorities, to which he or she must answer, it cannot be right to legislate, in a way not contemplated by the Basic Law, for a special committee to control the chief executive in any way. Apart from anything else, this could create a precedent for other committees to be created to regulate other aspects of the chief executive’s portfolio, and this might conflict with national responsibilities.
If, Lam explained, she was involved in any misconduct, it would be open to the central authorities to follow up on it. On July 17, she reiterated that stance, emphasizing that it was not a cause of concern, as the chief executive “is also a central government official”, and would not “be free from any monitoring”. In other words, if an integrity issue arose out of the acceptance or solicitation of an advantage, the chief executive would be accountable to the central authorities. At this point, it must be emphasized that, nowhere in the Section 3 offense, is there any mention of the word “corruption”, or a variant of it, as there is elsewhere in the POBO, and this is because it is solely concerned with the preservation of integrity, and not with actual criminality, which is why the penalties are so low.
As chief executive, Lam will sometimes receive gifts from visitors, often from elsewhere, and she may reciprocate. Gifts are expressions of goodwill, and, in many cases, to refuse a gift would appear insulting. Provided there is no conflict of interest or element of corruption, it is hard to see how the acceptance of an advantage in such circumstances can be problematic. Unlike many other officials, the chief executive has to operate in an open way for the bulk of the time, and, if gifts are received, they are passed to her staffers for disposal. If, however, a chief executive wished to retain a particular item, the practice in government, if its value is other than minimal, is for the recipient to pay the going rate for it.
Lam did not, of course, suggest for one minute that she was not subject to the far more draconian POBO offenses, under Sections 4, 5 and 10, concerning bribery and unexplained wealth, although anybody listening to the commentariat would not have realized that. The Democratic Party chairman, Lo Kin-hei, for example, described Lam’s decision as “utterly irresponsible behavior”, and of a type which would drag Hong Kong back “to an era where we are turning a blind eye to bribery and corruption”.
Like many others, however, Lo appeared unaware that the chief executive only enjoys an exemption from the POBO’s least serious offense, but not from its principal crimes. He also seemed not to appreciate that, if a chief executive abuses the system in a serious way, he or she is prosecutable for the common law offense of misconduct in public office, as Tsang found out to his cost. In other words, even without the Section 3 offense, there are checks and balances in place, as well as levels of scrutiny, and these protect the system from abuse.
Although everybody agrees that public officials should, wherever possible, abide by the rules, this certainly does not mean that exactly the same arrangements are applicable to all, or that their particular roles within the government are irrelevant. Under the Basic Law, the chief executive occupies a unique position, and is answerable to the Central People’s Government, as well as to the Hong Kong SAR (Art.43). He or she is appointed by the CPG, with the incumbent being what Lam calls “a central government official”. In terms of criminal liability, the chief executive now faces constraints that never applied to the colonial governors, and, since 1997, an overall balance has been achieved which, on any objective analysis, is fair, practical and reasonable.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.