HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
9.2 Likely Changes to the Applicable Legislation of the Enforcement Body
of potential conflicts of interests concerning the chief executive of Hong Kong, members of the executive council and politically appointed officials, and to make recommendations including appropriate changes to the regulatory regime. In its report submitted to the Hong Kong government in May 2012, the IRC identified a major loophole in the POBO in that the chief executive of Hong Kong was not subject to Section 3 (which criminalises the solicitation and acceptance of advantages by “pre - scribed officers” with the chief executive’s permission) or Section 8 (which criminalises the offering of advan - tages to public servants while having dealings with the government department or the public body in which the public servant is employed). The IRC, therefore, recommended that legislation be enacted to render it a criminal offence: • for the chief executive to solicit or accept any advantage without the general or special permis - sion of a statutory independent committee; and • for any person to offer any advantage to the chief executive, without lawful authority or reasonable excuse, where the person has any dealings with the government.
Following the IRC’s submission of its report in May 2012, efforts made to implement the suggested changes have failed to gain traction. Although the government confirmed in 2019 that “[it] [had] been actively following up on the IRC’s recommendations, with a view to enhancing the robustness of the system concerned to effectively prevent and properly deal with potential conflicts of interests involving public officials”, comments made in 2020 by Carrie Lam, then Chief Executive of Hong Kong, that implement - ing the suggested changes might violate the consti - tutional position of the chief executive raised doubts about the prospect of such changes being implement - ed. In 2021, Carrie Lam indicated that she would not seek to extend the application of Sections 3 and 8 of the POBO to cover the chief executive, as doing so could hamper her ability to be accountable to the PRC government and would conflict with the constitutional principle that the POBO is intended to apply to other public officers. Since that time, no further update has been provided by the Hong Kong government on the proposed extension of the application of Sections 3 and 8 of the POBO.
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