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Restricting loans of money to Hong Kong civil servants: social censure or violation of human rights?

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Abstract

Obtaining a loan is an individual’s private business and such a right should be free from interference. However, if Government officers obtain a loan from undesirable persons, they may be lured into committing an act which they would not otherwise have done but for the favours having been shown by the lenders. Section 3 of Hong Kong’s Prevention of Bribery Ordinance attempts to limit such behaviour of Government officers. Since the power of this provision is draconian, it may possibly violate human rights. This paper attempts to use a Social Censure perspective to explain why this provision was put in place in the 1970s and why it was not repealed in the 1990s in line with the rise of human rights standards in Hong Kong. It argues that the then British colonial government used a high-hand legal code to fight against corruption in the civil service to win its legitimacy in face of the rise of Red China in the 1970s. A review of twenty-one Section 3 cases suggests that most of the loans were not distributed for mere friendship but involved a wide range of culpability. Thus the coercion generated by Section 3 was approved by the masses, resulting in the reinforcement of a draconian but efficient legal provision in the service of the colonial administration.

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Notes

  1. See, [1]; and [2]. Reprinted in [3].

  2. See, [5].

  3. [7]. See also [8].

  4. See, for example, [9–11].

  5. T. Wing Lo, see [18].

  6. http://www.un.org/Overview/rights.html

  7. See p.498 in [23]. Rajagopal analyzes why a joint discourse of human rights and corruption is possible. He states, “The first such similarity that I see between corruption and human rights discourses concerns their relationship with development. A second similarity between these two discourses is in their attitudes towards the role of the state. A third similarity between the corruption and human rights discourses is with respect to their attitude towards culture” (p. 501-502).

  8. See note 6.

  9. N. Jayawickrama, see [32].

  10. P. Langseth, see [22].

  11. http://nbweekly.oeeee.com/Print/Article/303,8,3605,0.shtml.

  12. http://www.nanfangdaily.com.cn/southnews/jwxy/200707090046.asp and New Beijing News, 10 October 2005.

  13. Kin-man Chan, see [39].

  14. They include spouse (concubine), any person with whom the Government officer is living in a regular union as if man and wife; fiancée; parent, step-parent, lawful guardian; spouse’s parent, spouse’s step parent, spouse’s lawful guardian; grandparent, great-grandparent; child, ward of court; spouse’s child, spouse’s ward of court; grandchild; child’s spouse; brother, sister; spouse’s brother and sister; half-brother and sister; step-brother and sister; brother’s and sister’s spouse; brother’s and sister’s child; parent’s brother and sister; parent’s brother’s and sister’s spouse; parent’s brother’s and sister’s child.

  15. In the 1990s, the permissible amounts were only $2,000 and $1,000 respectively on any one occasion and had to be repaid within 14 days.

  16. Pursuant to paragraph 11 of the unpublished Civil Service Branch Circular (No.17/92), ‘official dealings’ is defined as (i) normal routine contact with a Government Department in making use of the services offered by that department is not ‘official dealing’, i.e. medical consultation with Government official, tax payment to Inland Revenue Department and emergency call to Fire Services for reporting fire and ambulance service; (ii) the solicitation or acceptance from a close personal friend in good faith and in circumstances where there was no knowledge of and no reasonable opportunity of having knowledge of any official dealings is permitted.

  17. Details can be found from an unpublished Consultative Document (No. 44/85) completed by Anthony Chan of the Corruption Prevention Department of the ICAC (1985). In the 1980s, opinions in relation to the Notice were expressed by different government departments in the form of ‘queries, comments and suggestions’. Some suggested that Government officers should be allowed to accept advantages from their subordinates since there were circumstances where a senior officer could unwittingly commit a ‘technical’ offence, such as payment of petty expenses by the junior while on official duty and the senior forgot to make immediate repayment afterwards. There was a general feeling among Government officers that obtaining special permission from the approving authorities for such a minimal amount was troublesome and therefore the Notice should be amended with general permission being given in prescribed circumstances. These comments had been taken into consideration but were found to be invalid. With respect to relaxing the permissible figure of loan, it was found that legitimate credit facility could be easily obtained through licensed financial institutions. In relation to accepting advantages from subordinates, it was considered to be inappropriate as this could lead to significant opportunities for corruption.

  18. [44]. Particularism requires a person to treat “insiders” with special favours even at the expense of fidelity to the “outsiders”.

  19. Rance Lee, see [44].

  20. It is interpreted as the conformity to indigenous Chinese folk norm.

  21. Heidenheimer made a differentiation between ‘black’ (most people condemn it), ‘grey’ (some people condemn it) and ‘white’ corruption (tolerated by most people). See [46].

  22. T. Wing Lo, see [18].

  23. Gramsci viewed the crisis of hegemony as a crisis of authority or a crisis of the state. See [47].

  24. The Independent Commission Against Corruption Ordinance (Cap. 204), the Prevention of Bribery Ordinance (Cap. 201) and the Corrupt and Illegal Practices Ordinance (Cap. 288), Laws of Hong Kong.

  25. See R. v. CHAN Chin-hung (1979) and R. v. WONG Joe-yiu (1979).

  26. See the judgement of Criminal Appeal No. 213, 219-222, 232-238 of 1976.

  27. Ibid., p.9.

  28. For the convicted defendants, a magistrate could exercise his discretion, in accordance with Section 36 of Magistrates Ordinance, Cap.227, Laws of Hong Kong, to order that the conviction be unrecorded. In this case, the defendants would very likely lose their jobs as well as pension if the convictions were recorded.

References

  1. Palmier, L. (1983). Bureaucratic corruption and its remedies. In M. Clarke (Ed.), Corruption: Causes, Consequences and Control (pp. 207–219). U.K.: Frances Printer.

    Google Scholar 

  2. Nye, J. S. (1967). Corruption and political development: a cost-benefit analysis. American Political Science Review, 61(2), 419.

    Google Scholar 

  3. Heidenheimer, A.J. (ed.) (1970). Political corruption: A handbook. NJ: Transaction Books.

  4. Goudie, A. W., & Stasavage, D. (1998). A framework for the analysis of corruption. Crime, Law and Social Change, 29(2/3), 113–159.

    Article  Google Scholar 

  5. Gardiner, J. (2002). Defining corruption. In A. J. Heidenheimer, & M. Johnston (Eds.), Political corruption: Concepts and contexts (pp. 25–40). NJ: Transaction.

    Google Scholar 

  6. Wraith, R., & Simpkins, E. (1963). Corruption in developing countries p. 35. London: George Allen and Unwin.

    Google Scholar 

  7. Klitgaard, R. E. (1988). Controlling corruption p. 3. Los Angeles: University of California Press.

    Google Scholar 

  8. Lee, R. (1981). Introduction: Definitions and patterns. In R. Lee (Ed.), Corruption and its control in Hong Kong (p. 4). Hong Kong: Chinese University Press.

    Google Scholar 

  9. Heidenheimer, A. J., & Johnston, M. (Eds.). (2002). Political corruption: Concepts and contexts (pp. 13). NJ: Transaction.

  10. Gong, T. (1994). Rethinking the definition of corruption. In T. Gong (Ed.), The politics of corruption in contemporary China: An analysis of policy outcomes (p. 10). Westpoint, Conn: Praeger.

    Google Scholar 

  11. Huntington, S. P. (1968). Political order in changing society p. 59. New Haven, Conn.: Yale University Press.

    Google Scholar 

  12. Pollack, B., & Matear, A. (1996). Dictatorship, democracy and corruption in Chile. Crime, Law and Social Change, 25(4), 371–382.

    Article  Google Scholar 

  13. Dalton, B. M. (2005). Corruption in cultural context: Contradictions within the Korean tradition. Crime, Law and Social Change, 43(4/5), 237–262.

    Article  Google Scholar 

  14. Johnston, M. (2008). Japan, Korea, the Philippines, China: Four syndromes of corruption. Crime, Law and Social Change, 49(3), 205–223.

    Article  Google Scholar 

  15. Findlay, M., & Chiu, T. (1989). Sugar coated bullets: Corruption and the new economic order in China. Crime, Law and Social Change, 13(2), 145–161.

    Google Scholar 

  16. Ren, J., & Du, Z. (2008). Institutionalized corruption: Power overconcentration of the first-in-command in China. Crime, Law and Social Change, 49(1), 45–49.

    Article  Google Scholar 

  17. Chan, H. S., & Gao, J. (2008). Old wine in new bottles: A county-level case study of anti-corruption reform in the People’s Republic of China. Crime, Law and Social Change, 49(2), 97–117.

    Article  Google Scholar 

  18. Lo, T. W. (1993). Corruption and politics in Hong Kong and China. Buckingham & Philadelphia: Open University Press.

    Google Scholar 

  19. Pavarala, V. (1993). Corruption as a site for contested meaning: elite constructions in India. ualitative Sociology, 16(4), 405–422.

    Google Scholar 

  20. Sumner, C. (Ed.). (1990). Censure, politics and criminal justice. Milton Keynes: Open University Press.

  21. Sumner, C. (ed.) (1997). Violence, culture and censure. London: Taylor & Francis Group.

  22. Langseth, P. (1999). Prevention: An effective tool to reduce corruption. Paper presented at the ISPAC Conference on Responding to the Challenge of Corruption. Milan, 19 November

  23. Rajagopal, B. (1999). Corruption, legitimacy and human rights: the dialectic of the relationship. Connecticut Journal of International Law, (14), 495–509.

    Google Scholar 

  24. Larmour, P. (1997). Corruption and governance in the South Pacific. Pacific Studies, 20(3), 1–17.

    Google Scholar 

  25. Pilapitiya, T. (2004). The impact of corruption on the human rights based approach to development (pp. 10–11). United Nations Development Programme, Oslo Governance Centre, retrieved on Oct 10, 2007 from www.undp.org/oslocentre/docs05/Thusitha_final.pdf.

  26. Alatas, S. (1999). Corruption and the destiny of Asia. Malaysia: Prentice Hall (M) Sdn. Bhd. and Simon & Schuster (Asia) Pte. Ltd.

    Google Scholar 

  27. Cockcroft, L. (1998). Corruption and human rights: A crucial link. Transparency International Working Paper, (TI website: http://www.transparency.de).

  28. Rashid, H. (2007). A crucial link between corruption and violation of human rights. The Daily Star, February 18, 2004. Retrieved on October 11, from http://www.thedailystar.net/2004/02/18/d40218020335.htm

  29. Gupta, S., Davoodi, H., & Tiongson, E. (2000). Corruption and the provision of health care and education services. IMF Working Paper No. 116. Washington: International Monetary Fund

  30. Kaufmann, D., Kraay, A., & Zoido-Lobaton, P. (1999). Governance matters. World Bank Policy Research Department Working Paper No. 2196. Washington: World Bank.

    Google Scholar 

  31. Green, P. (2005). Disaster by design: corruption, construction and catastrophe. The British Journal of Criminology, (45), 528–546. doi:10.1093/bjc/azi036.

  32. Jayawickrama, N. (2003). Corruption: a violation of human rights? East European Human Rights Review, 9(1), 127–139.

    Google Scholar 

  33. Rose-Ackerman, S. (1999). Corruption and government. Causes, Consequences and Reform pp. 137–138. Cambridge: Cambridge University Press.

    Google Scholar 

  34. Klaaren, J., & Ramji, J. (2001). Inside illegality: migration policing in South Africa after Apartheid. Africa Today, (September), 35–47. doi:10.1353/at.2001.0054.

  35. Litton, H. (1989). Public order. In T. L. Tsim, & B. H. K. Luk (Eds.), The other Hong Kong report (pp. 275–276). Hong Kong: Chinese University Press.

    Google Scholar 

  36. Bernard, D. (1976). Combatting corruption: the Hong Kong solution. Hong Kong Law Journal, 6(1), 62–63.

    Google Scholar 

  37. Wilsher, D. (2006). Inexplicable wealth and illicit enrichment of public officials: a model draft that respects human rights in corruption cases. Crime, Law & Social Change, 45(1), 27–53.

    Article  Google Scholar 

  38. Lo, S.-H. (1996). Anti-corruption and crime. In M.-K. Nyaw, & S.-M. Li (Eds.), The Other Hong Kong Report 1996 (p. 183). Hong Kong: Chinese University Press.

    Google Scholar 

  39. Chan, K.-M. (2001). Uncertainty, acculturation and corruption in Hong Kong. International Journal of Public Administration, 24(9), 909–928.

    Article  Google Scholar 

  40. Lau, E. (1988). Graft-busters and 1997. Far Eastern Economic Review, 142(49), 28–29 8 December.

    Google Scholar 

  41. Legislative Council Secretariat (1994). Enquiry into the Circumstances Surrounding the Termination of the Employment of Mr. Alex TSUI Ka-kit, former Senior Assistant Director of the Independent Commission Against Corruption. Vol.I: Report p. 12. Hong Kong: Hong Kong Government Printer.

    Google Scholar 

  42. Lo, T. W. (1999). The political-criminal nexus: the Hong Kong experience. Trends in Organized Crimes, 4(3), 75.

    Google Scholar 

  43. Lethbridge, H. J. (1985). Hard graft in Hong Kong p. 159. Hong Kong: Oxford University Press.

    Google Scholar 

  44. Lee, R. (1981). Incongruence of legal codes and folk norms. In R. Lee (Ed.), Corruption and its control in Hong Kong (pp. 78–83). Hong Kong: Chinese University Press.

    Google Scholar 

  45. Medard, J. F. (1986). Public corruption in Africa: A comparative perspective. In Corruption and Reform Vol. 1:2. pp. 115–131. Netherlands: Martinus Nijhoff.

    Google Scholar 

  46. Heidenheimer, A. (1989). Perspectives on the perception of corruption. In A. Heidenheimer, M. Johnston, & V.T. LeVine (Eds.), Political corruption: A handbook (pp. 149–163). NJ: Transaction.

    Google Scholar 

  47. Gramsci, A. (1971). Selections from the Prison Notebooks p. 210. London: Lawrence and Wishart.

    Google Scholar 

  48. Lethbridge, H. J. (1985). Hard draft in Hong Kong p. 78. Hong Kong: Qxford University Press.

    Google Scholar 

  49. Kuan, H. C. (1981). Anti-corruption legislation in Hong Kong: a history. In R. Lee (Ed.),Corruption and Its control in Hong Kong (p. 42). Hong Kong: The Chinese University Press.

    Google Scholar 

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Acknowledgement

The authors gratefully acknowledge their profound debt to Tina Rochelle and Guoping Jiang for the assistance they provided in preparing this paper.

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  1. City University of Hong Kong, Kowlon, Hong Kong

    T. Wing Lo & Paul Ngan

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Correspondence to T. Wing Lo.

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Lo, T.W., Ngan, P. Restricting loans of money to Hong Kong civil servants: social censure or violation of human rights?. Crime Law Soc Change 52, 385–403 (2009). https://doi.org/10.1007/s10611-009-9189-x

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