9 Dec 2009

Members' Motions 'Motion under Rule 49B(1A) of the Rules of Procedure’

President, I oppose the motion moved according to Rule 49B(2A) of the RoP by Mr Paul TSE today, that no further action be taken on the censure motion moved by Ms Miriam LAU.

First of all, I declare that during the Legislative Council Election last year, I became acquainted with the former female assistant of Mr KAM Nai-wai, Ms Kimmie WONG, who is mentioned in the censure motion and whose identity was disclosed later. However, we are simply nodding acquaintances, not friends. In addition, since I am a member of the Committee on Members' Interests (CMI), in the course of deliberating what to do with this motion concerning Mr KAM Nai-wai's suspected misbehaviour, I received enquiries from people who claimed to be assisting Ms WONG in this matter about the work procedures of the CMI and some procedures and rules of this Council, to which I replied according to the facts that I know.

Today, it is the first time that a motion is moved in the Legislative Council according to Rule 49B(1A) of the RoP to deal with allegations against a Member and this is a very solemn procedure. Moreover, to the person concerned (that is, the Member concerned), the consequences can be very serious. For this reason, when considering whether or not to support this motion, I am being very prudent and must take into account the views of the public, the pros and cons of the Legislative Council passing this motion and the possible consequences of this motion becoming a precedent in future.

When considering the views of the public, I noticed that many people considered the expression of affection by Mr KAM towards Ms WONG and the subsequent dismissal of Ms WONG to be a matter between them and it should be dealt with by Mr KAM or the Democratic Party, to which Mr KAM belongs and that the Legislative Council should not commit its precious resources and time to an investigation. In fact, there are many other far more important territory-wide issues requiring the urgent concern and attention of Members, so they really should not waste their precious resources and time on this matter. To some extent, I subscribe to such views.

However, on the dismissal of Ms WONG by Mr KAM, the Complaints Division of the Legislative Council has received quite a number of complaints that must be addressed squarely. After summarizing the complaints, it can be seen that there are two points of concern to the public: first, whether or not, as a Member, Mr KAM did abuse his position and power to act unjustly and second, issues relating to Mr KAM's integrity.

These two points are important considerations in deciding whether or not to support the motion to proceed no further with the investigation. In the meeting of the Legislative Council House Committee on 16 October, when Members were discussing whether or not to follow up the complaint against Mr KAM according to Article 79(7) of the Basic Law, I indicated that the Legislative Council should follow up by carrying out an investigation or I would consider that to be unjust. Until mid-November, my position remained unchanged.

However, through her attorney, Ms WONG made clear to the Chairman of the House Committee, Ms Miriam LAU, on 17 November that since this matter made her feel a great deal of pressure and anxiety, she decided not to take part in any investigation any further. Since Ms WONG decided that she would not be involved in any investigation carried out by the Legislative Council, at that time, I could already foresee that even if the motion moved by Ms LAU could be passed, given that there is no plaintiff and without the evidence from a crucial party in the incident, the investigation would not yield any result. For this reason, when answering the enquiries of the mass media, I said publicly that I no longer supported any investigation.

However, the attorney of Ms WONG submitted her petition to all Members through the Legislative Council Secretariat on 3 December. Is the account given by Ms WONG at great variance with that given by Mr KAM before the release of the petition? This became an important consideration in reconsidering my position on this motion.

President, I have compared the versions given by Ms WONG and Mr KAM and found that the facts stated by them differ significantly. Let me cite a couple of examples. For example, in Ms WONG's version, Mr KAM expressed his affection for her in June this year. Ms WONG rejected him and made clear a number of times that she would resign (see line 2 of page 2 of Ms Kimmie WONG's petition). Mr KAM said that he hoped Ms WONG would not resign but he also requested that she reconsider their relationship at home. Subsequently, Mr KAM requested to meet Ms WONG in private a number of times. On 23 September, Mr KAM again invited Ms WONG to have lunch in private with him. After being refused by Ms WONG, Mr KAM pursued further by asking if she could have an appointment with him on the next day.

If we then look at the version given by Mr KAM, initially, he denied ever expressing his affection or sexually harassing her, still less dismissing Ms WONG due to her rejection of his advances. However, a couple of days later, Mr KAM admitted to having expressed his affection to Ms WONG and apologized to Ms WONG. Mr KAM had had private appointments with Ms WONG but subsequently, he said that he did not make any advances. Mr KAM invited Ms WONG to a meal in mid-September and said that he could not rule out having given Ms WONG the impression that Mr KAM was dating her again.

The second example relates to what may have been the fuse for the dismissal of Ms WONG. President, Ms WONG said that on 24 September, she attended a staff meeting and was writing an article while having the meeting. Mr KAM was dissatisfied and requested other colleagues to leave the office and continue with the meeting at another venue. The next day, Mr KAM dismissed Ms WONG immediately on the ground that no further co-operation was possible. However, in the version given by Mr KAM, Ms WONG did not attend the staff meeting on 23 September and he dismissed Ms WONG on the next day immediately.

President, in view of the versions of the incident given by Ms WONG and Mr KAM, apparently, there is a case to answer in this complaint case of concern to the public and it can be referred to the Legislative Council for follow-up action by establishing an investigation committee. I think this is the right thing to do. Otherwise, this will amount to injustice. Although the details of misbehaviour as particularized by Ms LAU do not include the details in Ms WONG's petition and although Ms WONG pleaded with the public in her petition to respect her feelings and refrain from pestering her with questions, as I said at the beginning, my consideration is based on two points of concern to the public, that is, first, whether or not the Member has abused his position and power and second, whether or not there is any problem with his integrity.

Hong Kong is a highly developed place with a prosperous economy, an open society and the free flow of information. The education standard of the public is very high and together with the monitoring of the mass media, the public have set certain standards for public officers. In particular, as Members, we have the mandate from voters to comment on politics in the Council, scrutinize bills, examine and approve budgets, raise questions, handle complaints from members of the public, endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court, summon the persons concerned to testify or give evidence and even impeach government officials. We have powers and naturally, the responsibility to observe certain ethical standards in our conduct.

What is now called the Advisory Guidelines on Matters of Ethics in relation to the Conduct of Members of the Legislative Council of the Hong Kong Special Administrative Region in their capacity as such was issued as early as 1996 in the era of the former Legislative Council, so President, it can be seen that all along, the legislature has attached great importance to the ethics of Members.

After Ms WONG had publicized her petition, Mr KAM immediately held a press conference to give his response. I have read the relevant press reports and the impression he gave me is that he does not think that he is in the wrong.

I am a Christian, and I have the conviction that we should be forgiving. Everyone makes mistakes but with a forgiving heart, we can start anew and so can other people, so this is a blessing to other people and oneself. Ms WONG did not want other people to pester her with questions and I have also considered respecting her wish by supporting Mr TSE's motion and pursuing this matter no further. However, as I said just now, in this matter, I really cannot see Mr KAM express his sincere remorse or regret. His behaviour in the press conference made me feel that this makes me think that he may actually be the aggrieved party.

President, since the Democratic Party and Mr KAM are both willing to accept an investigation, I can sense that they feel they have been aggrieved in this incident. In that case, the motion moved by Ms LAU today will lead to the establishment of an investigation committee to carry out an investigation and it is a course of action that may vindicate them. This is the same consideration applied by me when I gave my support to the motion on conducting an inquiry into Mr LEUNG Chin-man, that is, to enable an investigation by the Legislative Council to do justice to various parties and to allay the doubts of the general public about the integrity and behaviour of a Member and whether or not he has abused his powers.

Some people hold that invoking Rule 49B of the RoP to carry out an investigation is somewhat making a mountain out of a molehill because given the nature of the incident and the division of camps in the Legislative Council, the investigation will not lead to the disqualification of Mr KAM from office. I understand that this may be the ultimate outcome, but given the existing terms of reference of various committees in the Legislative Council and the RoP, there is really no other channel to take lawful follow-up action. In response to any injustice in society and no matter what people are involved, apart from levelling criticisms, the Legislative Council can also carry out investigations to find out the truth and make justice prevail if necessary. Does one mean that we can turn a blind eye and a deaf ear to matters relating to the conduct and behaviour of Legislative Council Members on the ground that the existing channels and mechanism are not satisfactory? However, I stress that in the event that an investigation is really conducted in the future, we cannot simply rely on the reports of the mass media. The procedure of the investigation must be fair, impartial and stringent. In order to avoid the application of Rule 49B of the RoP to cases that Members consider not so serious again, in the future, the Legislative Council can separately reconsider whether and how follow-up action should be taken on complaints against the conduct and behaviour of Legislative Council Members but, President, this is a matter to be discussed in the future.

President, I so submit.