A Study On The Offence Of Misconduct In Public Office In Hong Kong

The offence of misconduct in public office is an ancient crime under the common law which originated in Bembridge in 1783.Since Hong Kong introduced the offence of misconduct in public office to fight against conflict of interest,which is also recognized as "soft corruption" at the beginning of the 21st century,the offence has played a positive role in promoting the criminal law against corruption of Hong Kong from anti-corruption to uphold integrity,in promoting the improvement of codes of conduct and guidelines for public officials,in fighting soft corruption,in strengthening the accountability of the chief executive and in fostering a clean society.It is a powerful weapon for Hong Kong to maintain integrity in the new era and the"Imperial Sword" used by the ICAC to check and balance public officials,especially senior officials.However,the offence of misconduct in public office in Hong Kong is controversial because of its wide scope and its unclear boundaries.The offence of misconduct in public office means to criminalize public officials’misconduct essentially.Due to the primary-derivative nature of the offence of misconduct in public office,its legitimacy is based on two points:first,the misconduct harms or endangers public institutions and practices,and the criminal law is a necessary and effective tool to prevent the harms and endangers;Second,public officials’misconduct violate other ordinance,norms or guidelines,and criminal law is a necessary and effective tool to guarantee the authority of those ordinance,norms and guidelines.Though it is legitimate to criminalize public officials’ misconduct,the offence of misconduct in public office in Hong Kong should comply with certain limits.Considering the primary-derivative nature of the offence of misconduct in public office,we suggest that the immoral nature or the principle of the second offence against the law should be the bottom line of the misconduct which can constitute the offence of misconduct in public office.According to the different elements of begehungsdelikte and negative crime while constituting the offence of misconduct in public office,the begehungsdelikte is inherently immoral because of its corrupt,dishonest or malicious motives.And the negative crime--namely neglect of duty--should be based on the second offence against the law,which means a breach of other ordinance,norms or guidelines is the precondition of constituting the offence of misconduct in public office.The behavior which is not immoral and does not violate other ordinance,norms and guidelines should not constitute a crime.It is the inevitable requirement of restraining criminal law and the bottom limit to prevent the infinite expansion of the offence of misconduct in public office.It is generally believed that the common law source is the main reason for the unclear boundary of the offence of misconduct in public office in Hong Kong.By reviewing of the internal and external disputes related to the offence of misconduct in public office in Hong Kong,it is found that the elements that constitute the offence of misconduct in public office is clear and well-defined.The controversy caused by the elements of misconduct in public office in does not lie in the common law form of the offence,but in the broad terms of its elements,and the broad terms is the key to maintain the openness,flexibility and ability to regulate different kinds of misconduct of public officials for the offence of misconduct in public office.The more important reason for the unclear boundary of the offence of misconduct in public office in Hong Kong is the unpredictability caused by the rapid development of law in the form of common law,and the embodiment of Hong Kong’s value-based approach of integrity management in the practice of the offence of misconduct in public office.The modification of the offence of misconduct in public office can increase its predictability,but at the same time it will weaken its effect of anti-corruption.This is the dilemma faced by the reform of the law source of offence of misconduct in public office.In order to balance the objective of the offence of misconduct in public office to fight against corruption and building a clean government and the objective of clarifying its boundary,it is suggested that the offence should be either modified in broad terms,or retained in the common law form but following the principle of second offence against the law of crime.Although the Hong Kong Court of Final Appeal rejected the position of second offence against the law for the offence of misconduct in public office,however,to maintain the unity of legal order and improve the predictability of the offence of misconduct in public office,it is necessary to make the offence of misconduct in public office follow the principle of second offence against the law.As for the limitations of the offence of misconduct in public office in regulating conflict of interest and in preventing and combatting political corruption such as policy capture,it is a reasonable price to pay for legal certainty.