24 August 2019
Hong Kong needs to put in place a law that would ensure greater protection for people who take personal risks to bring wrongdoings of public and private sector entities to light, argues Kenneth Leung. Photo: Bloomberg
Hong Kong needs to put in place a law that would ensure greater protection for people who take personal risks to bring wrongdoings of public and private sector entities to light, argues Kenneth Leung. Photo: Bloomberg

Time for new legislation on whistleblower protection

As I mentioned in a previous column, whistleblowers had been instrumental in helping bring to light the faulty construction and the subsequent cover-up attempts in relation to some works on MTR’s Shatin-to-Central rail link project.

The incident highlighted the fact that whistleblowers have a pivotal role to play in probing wrongdoings and seeking truth in defense of common good.

In order to safeguard whistleblowers who are acting in the public interest against any possible retaliation, for example, from their employers, I am currently drafting a Public Interest Disclosure Bill.

Back in 1998, the then provisional legislature carried out a study on providing greater legal protection to whistleblowers. 

However, the legislative proposal was later struck down by the government, which argued that the existing legal provisions were already able to provide whistleblowers with substantial legal shield.

Later, several lawmakers again brought up the issue and urged the administration to act accordingly.

Unfortunately, again, government officials still refused to pass another piece of legislation, arguing that they didn’t see substantial calls from the public for legislating on protecting whistleblowers.

True, there are currently several laws in place that can offer legal protection for whistleblowers. One can cite laws such as the Employment Ordinance, section 30A of the Prevention of Bribery Ordinance, section 22 of the Securities and Futures Ordinance, the United Nations (Anti-Terrorism Measures) Ordinance, the Organized and Serious Crimes Ordinance, as well as the Drug Trafficking (Recovery of Proceeds) Ordinance.

However, these laws have proven to be so piecemeal and uncoordinated in such a way that, in reality, all they do is waive some of the legal liability of those who have blown the whistle on their company or organization rather than protect them against retaliation from their employers.

For example, according to recent media reports, three individuals who had reported their company’s code violation in waste emissions to the Environmental Protection Department were later fired by their employer.

In the course of preparing a private member’s bill, I have closely referred to the Public Interest Disclosure Act passed by the British parliament in 1998.

The 1998 act clearly lays down what categories of whistleblowing initiatives are protected under the law in order to ensure that the legislation only applies to incidents that affect huge public interest, such as those that involve: 1. a criminal offence; 2. a breach of a legal obligation; 3. a miscarriage of justice; 4. the health or safety of any individual being endangered; and 5. environmental damage.

In the meantime, the law also stipulates that in order for any whistleblowing to fall within its jurisdiction, such an act must be carried out based on good faith rather than personal gain.

Moreover, there must be substantial and reasonable grounds for the whistleblower to believe that the classified information he or she discloses is true.

We should bear in mind that whistleblowing that is carried out in the public interest can not only guarantee self-discipline among private business corporations, it can also prevent serious malpractice and ensure quality corporate governance.

At present, there is no specific law in Hong Kong to provide legal protection for whistleblowers. We are lagging far behind the rest of the world in terms of keeping up with the latest trends in corporate governance and legislation.

I sincerely believe my bill, if pushed through to legislation, can help enhance the quality of governance of business enterprises in Hong Kong and ensure proper legal protection for employees who take risks to bring malpractices to light.

This article appeared in the Hong Kong Economic Journal on Sept 12

Translation by Alan Lee

[Chinese version 中文版]

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Member of Legislative Council (Functional Constituency – Accountancy)

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