The case of former Chief Executive Donald Tsang Yam-kuen, who has been charged with misconduct in public office, has sparked debate over whether or not chief executives can be prosecuted.

As it stands currently, sections 3 and 8 of the Prevention of Bribery Ordinance (POBO) dealing with public servants accepting advantages or bribes, do not cover the chief executive, whether former or incumbent.

An independent committee headed by then Chief Justice Andrew Li Kwok-nang suggested amending the sections in 2012, but Chief Executive Leung Chun-ying has yet to implement the recommendations.

Former Secretary for Justice Elsie Leung Oi-see said on a Commercial Radio programme on Tuesday that it was unlikely that the current chief executive can be prosecuted.

Elsie Leung. File

“If the current head of a region can be prosecuted easily, it will affect the stability of the government,” she said, “as he [the chief executive] is appointed by the sovereign state…only the court of the state can exercise judicial power over him.”

“But if the chief executive is involved in a serious breach of law, there is a process in the Basic Law to pass a motion of impeachment,” she added, “and then it can be reported to the NPC Standing Committee, for the Central People’s Government to make a decision.”

Ronny Tong Ka-wah. File Photo: Stand News.

However, Stephen Char Shik-ngor, former ICAC investigator, said on RTHK that the chief executive should not be exempt from the POBO.

“Someone said he is above the executive, legislature and judiciary, but it does not mean he is above Hong Kong’s law.”

Barrister and former lawmaker Ronny Tong also commented on the RTHK programme concerning the need to amend the POBO.

“It is time for society to press future candidates for chief executive strongly to make appropriate responses.”

Leung Chun-ying (left) and Donald Tsang (right). File Photo: Gov HK and HKFP.

Chief Executive Leung Chun-ying has also broken his silence and commented on the case.

“The decision in the case of Mr Donald Tsang has been made independently by the Department of Justice, there are no political considerations,” Leung stated before his meeting with the Executive Council on Tuesday morning.

He also said that people should not make further comments about Tsang or anyone related to the case, as it has now entered the judicial process.

He has not made any comments on if, or when, the POBO will be amended to encompass the chief executive.

Kris Cheng

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.