CIRCULAR MEMORANDUM No.

9/2012
From : Secretary for the Civil Service To : Directors of Bureau Permanent Secretaries Heads of Department

Ref. : CSBCR/DP/5-020-006/64-6 Pt. 2 Tel. : 2810 2140

Date : 12 July 2012

Handling of Allegations of Corruption

(Note: Distribution of this circular memorandum is Scale C. It should be read by Directors of Bureau, Permanent Secretaries, Heads of Department, Departmental Secretaries and officers handling staff matters. A Chinese version is attached.)

************ Purpose
This circular memorandum sets out the actions to be taken by bureaux/departments (B/Ds) when allegations of corruption are received. It should be read in conjunction with CSB Circular No. 7/2012 on the reporting of criminal offences including corruption-related offences. 2. CSB Circular No. 9/94 and the Secretary for the Civil Services memorandum ref. CSBCR/DP/5-020-004/15 Pt.13 dated 24 January 2006 are hereby superseded.

Handling of Allegations of Corruption

3. For the purpose of this circular memorandum, allegations of corruption refer mainly to any alleged or suspected corruption offences under the Prevention of Bribery Ordinance (Cap. 201), the Independent Commission Against Corruption Ordinance (Cap. 204), and the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554). They may also cover corruption in the broader sense which does not necessarily involve solicitation or acceptance of an advantage and is caught by the common law offence of Misconduct in Public Office.

-24. Confidentiality and prompt action are of paramount importance in referring allegations of corruption to the Independent Commission Against Corruption (ICAC). B/Ds should designate a directorate officer to deal with referral of such allegations which should be handled by as few other officers as possible. 5. If a B/D receives an allegation of corruption involving its own operations, the original written allegation or report of oral allegation should be forwarded under confidential cover to the Head of Operations, ICAC 1 without delay. 6. If a B/D receives an allegation of corruption involving another B/D, such allegation should be forwarded under confidential copy to the Head of Operations, ICAC without delay, and should not be referred or copied to the B/D involved. The ICAC will notify the B/D concerned where necessary. 7. If a B/D receives an allegation of corruption involving an ICAC officer, such allegation should be forwarded to the Secretary for Justice (S for J) and copied to the Commissioner, ICAC for the Commissioners personal attention. 8. B/Ds should avoid making any enquiries or taking any action which may prejudice ICAC investigation. Strictest confidence and vigilance must be maintained for all allegations referred to the ICAC. Disclosing the identity of the suspect or any details of an ICAC investigation before the suspect is arrested may itself constitute an offence under section 30 of the Prevention of Bribery Ordinance (Cap. 201).

Action by the ICAC

9. The ICAC is empowered to investigate alleged or suspected corruption. It is also required by law to investigate any conduct of a prescribed officer as defined under the Independent Commission Against Corruption Ordinance (Cap. 204) which may be connected with or conducive to corrupt practices and report its findings to the Chief Executive. 10. Where findings of ICAC investigation reveal that there is prima facie evidence of a criminal offence, the ICAC will forward the case to the S for J for a decision on whether to proceed with criminal prosecution. 11. If the ICAC investigation does not result in prosecution or conviction of an officer or the conviction of an officer is quashed on appeal, but the investigation and/or court proceedings reveal misconduct or malpractice or other issues, the ICAC will, on the advice of its Operations Review Committee (ORC), refer such matters to the B/D concerned in a report, under confidential cover, for consideration of
1

The prevailing address is Ground Floor, 303 Java Road, North Point, Hong Kong. B/Ds may also call the report centre at 2826 4324 or the ICAC 24-hour hotline at 2526 6366.

-3disciplinary, administrative or other follow-up action (ORC referral). Where appropriate, a copy of the ORC referral will be sent to the Secretariat on Civil Service Discipline (SCSD) and Conduct and Discipline Division (CD Division) of Civil Service Bureau for reference. 12. On the other hand, if the ICAC investigation results in an officers criminal conviction in court, the ICAC will not normally provide the B/D concerned with any report unless a referral involving, for instance, alleged misconduct or malpractice of the officer or some other staff is considered necessary by the ORC. Insofar as the criminal conviction is concerned, B/D may, after examining the relevant facts of the case and court transcripts, punish the officer without any further disciplinary proceedings pursuant to section 11 of the Public Service (Administration) Order (PS(A)O) or the relevant provisions in the applicable disciplined services legislation 2, as appropriate.

Handling of ORC Referrals

Departmental investigation 13. B/Ds should take prompt follow-up action upon receipt of an ORC referral in order to achieve the desired punitive and deterrent effect. Generally speaking, preliminary investigation with a decision made on the way forward should be completed within two months from the receipt of the referral. 14. On receipt of an ORC referral, the B/D concerned should request the ICAC investigation team to conduct a briefing to explain the case background and to advise on the records and documentary evidence available to facilitate departmental investigation 3 . The request should be addressed to the ORC Secretary within two weeks of the receipt of the ORC referral using the form at Annex 1. Staff of SCSD may also attend the briefing for cases involving civil servants subject to the PS(A)O. The B/D should, after the briefing, obtain further information from the ICAC where necessary to facilitate their internal investigation. It should examine all relevant facts and circumstances of the case to ascertain if there is prima facie evidence of misconduct and to consider whether disciplinary or administrative action should be taken.

Referring to the legislation applicable to certain disciplined services grades/ranks. B/Ds should request ICAC investigation team to conduct a briefing for each and every ORC referral which is referred to them for consideration of disciplinary and/or administrative action. For ORC referrals which are referred to B/Ds for information, the B/D concerned may, after examining the relevant facts of the case, request a briefing on a need basis.

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Disciplinary/administrative action 15. In case an officer is not prosecuted after investigation by the ICAC but the investigation findings reveal that there is prima facie evidence of misconduct, the B/D concerned should, after departmental investigation as in paragraph 14 above, consider taking disciplinary action against the officer concerned, including formal disciplinary action under section 9 or 10 of the PS(A)O or the relevant provision in the applicable disciplined services legislation, as appropriate. 16. If the ICAC investigation results in prosecution against an officer, but the officer is subsequently acquitted of the charges or his/her criminal conviction is quashed on appeal, the B/D concerned should examine whether the investigation and court proceedings have revealed any misconduct which may warrant disciplinary action 4. 17. In case disciplinary action is not considered advisable or warranted but the B/D concerned has lost confidence in an officers suitability, including integrity to continue discharging his/her duties as a public servant, to remain in the service due to the circumstances of the case (e.g. the officer has succeeded in quashing his/her conviction on appeal on technical grounds which do not however undermine the prosecution evidence accepted by the court), the B/D concerned should consider taking action under section 12 of the PS(A)O to require the officer to retire in the public interest. 18. In the event of criminal prosecution having been instituted against any officer(s), if the B/D concerned intends to start or continue (if already started) an internal investigation with the purpose of ascertaining whether there is misconduct (e.g. negligence, failure of supervisory accountability) on any other officers not prosecuted for any criminal offence, such investigation should be carried out in a manner that will not undermine the administration of criminal justice through the court system. The B/D concerned is required to consult the ICAC on the intended action beforehand. The ICAC, in consultation with the Department of Justice, will consider whether there are any objections to such action on the basis that it may prejudice on-going criminal proceedings. Disciplinary or administrative action may be contemplated against these other officers after having duly considered the evidence

When considering disciplinary action, the B/D should observe section 15 of the PS(A)O or the relevant provision, if any, in the applicable disciplined services legislation that an officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he/she has been acquitted. The officer may nevertheless be punished on any other charges arising out of his/her conduct in the matter which do not raise substantially the same issues as those on which he/she has been acquitted. The Department of Justice should be consulted as appropriate.

-5gathered in the process and further information that an ORC referral (if any) may reveal at a later stage. 19. B/Ds should consult SCSD if there is doubt as to the appropriate disciplinary action to be taken under the PS(A)O (as stated in paragraphs 12, 15, 16 and 18 above). For ORC referrals involving an officer on or above Master Pay Scale Point 34 or equivalent, the department concerned should not proceed with any action (disciplinary or administrative) intended to be taken against the officer without prior consultation with SCSD. In case action under section 12 of the PS(A)O is contemplated (as stated in paragraph 17 above), B/Ds should forward a recommendation to CD Division setting out the grounds on which it is proposed to require the officer concerned to retire in the public interest. The Department of Justice should be consulted as appropriate. Monitoring of action on ORC referrals 20. B/Ds should designate a directorate officer to monitor the progress in handling ORC referrals. B/Ds with large number of ORC referrals should consider forming a monitoring committee to ensure prompt action. 21. To make sure that the ORC referrals are duly followed up, B/Ds are required, in line with the existing practice, to compile a progress report at quarterly intervals (ending March, June, September and December) for each ORC referral in the format provided at Annex 2. The progress report, to be signed by the designated directorate officer, should reach the Head of Operations, ICAC by the 15th day of the following month, with a copy to SCSD and CD Division where appropriate. 22. For cases where the preliminary investigation takes longer than two months to complete, or cases where action is yet to be completed one year after receipt of the referrals, the reasons for the time taken should be specified in the progress report. 23. When action on an ORC referral is completed, the B/D concerned should notify the Head of Operations, ICAC by way of a memo, with a copy to SCSD and CD Division where appropriate. The Head of Operations, ICAC will in turn inform the ORC.

Applicability
24. The procedures set out in this circular memorandum in relation to handling of allegations of corruption and ORC referrals are applicable to both civil servants and non-civil service contract staff. The PS(A)O and the disciplined services legislation are not applicable to non-civil service contract staff whose disciplinary and

-6related matters should be dealt with by B/Ds in accordance with the provisions of their contract.

Circulation
25. This circular memorandum should be re-circulated every six months to officers handling staff matters.

Enquiries
26. Enquiries about the content of this circular memorandum should first be addressed to Departmental Secretaries who, if in doubt, should contact Assistant Secretary (Conduct and Discipline) at 2810 3195 or Senior Executive Officer (Conduct and Discipline)5 at 2810 3182 of this Bureau.

(Ms Ivy LAW) for Secretary for the Civil Service c.c. Judiciary Administrator Commissioner, Independent Commission Against Corruption The Ombudsman Secretary, Public Service Commission

RESTRICTED (STAFF)
Annex 1

ORC Secretary, ICAC (Attn : ORC Assistant Secretary) (Fax : 2522 5865)

Request for Briefing on ORC Referrals

This bureau/department wishes to have a briefing on the following ORC referral(s) Ref. No. Areas / Issues of concern (e.g. unauthorised absence of an officer)

2.

Officers who will attend the briefing are listed below Name Rank

Signature : Name : Post/Rank :

Tel. No. : Bureau/Department : Date :

c.c. SPEO (Discipline Secretariat) (for civil servants who are subject to the PS(A)O) (Fax : 2119 0846)

RESTRICTED (STAFF)
Annex 2 Quarterly Progress Report on Action Taken in respect of Operations Review Committee Referrals (position as at end of March/June/September/December (Year) (Note 1)) To : Head of Operations, ICAC

From: __________________________ (Bureau/Department) S/N

(Note 2)

Ref. No.

Date of ORC Meeting

Officer(s) Involved (Name and Rank)

Subject Matter/ Recommended Action

Course of Action/ Present Position/ Outcome (Note 3) (with dates)

Where a case remains outstanding for over 1 year or the preliminary investigation has taken more than 2 months (Note 4), please give reasons here.

Signature : Name & Post (Note 5) : Date :

c.c. Senior Principal Executive Officer (Discipline Secretariat) (for civil servants who are subject to the PS(A)O) Conduct and Discipline Division, Civil Service Bureau (for civil servants in all grades/ranks) Notes (1) This return should reach the Head of Operations, ICAC by the 15th day of the month immediately following the quarter in question. (2) In chronological order (i.e. the oldest case as S/N 1). (3) Cases on which follow-up action has been concluded and reported in the preceding return need not be included in the current return. (4) Prompt investigation should be conducted and completed within 2 months from receipt of each referral with a decision made on the way forward. (5) This form should be signed by a designated directorate officer.