Speech by Legal Adviser Vu Ka Vai at 9^th Annual Conference and General Meeting of IAACA

1. Foreword

The regime for declaration of assets in the Macao Special Administrative Region of the People’s Republic of China (“Macao”) was created in 1992. In other words, a regime for declaration of assets had been established in Macao in the early 1990s.

The first set of laws on the declaration of assets – Law no. 13/92/M, “Declaration of Financial Interests of Holders of Political Positions” – was adopted by the Legislative Assembly in 1992. However, the scope in which this law covers was not very wide, and was only applicable to holders of political positions, including members of the Legislative Assembly, members of the Consultative Committee, members of municipal institutions and other personnel stipulated by law. Moreover, the criminal punishment of this Law was rather incomplete, in particular, there was no criminal sanctions for unjustified wealth^[1].

In 1998, the Legislative Assembly approved Law no. 3/98/M, “Declaration and Public Supervision of Income and Financial Interests”, which extended the scope of application for the declaration of assets. It stipulated that holders of political positions, holders of public office and public administration employees are all obligated to declare their assets.

Since then, all personnel of public entities, despite their positions, are required to submit a declaration of assets. The Law stipulates, in more details, the proceeds and assets that need to be declared. The offence “Signs of Unjustified Wealth” was an addition in this Law, which is equivalent to “Unjustified Wealth” we have today.

In 2003, the Legislative Assembly carried out a comprehensive revision on the regime for declaration of assets adopted in 1998, and approved Law no. 11/2003, “Declaration of Assets”, in order to improve the procedures and operation of assets declaration. During this revision, “holders of political positions” and “holders of public office” were also combined, and commonly called “holders of public office”, corresponding to the legal order of Macao after the Handover.

In 2013, the Legislative Assembly carried out yet another revision towards the regime of assets declaration, and adopted the “Legal Regime of Declaration of Assets and Interests”. A major change in the new Law is the addition of Part IV of the Declaration of Assets and Interests, with the purpose of enhancing transparency of assets owned by holders of public office in the higher level and for better public supervision.

2. “Legal Regime of Declaration of Assets and Interests”

(1) Bodies obligated to declare

The following persons are required to present Declaration of Assets and Interests: holders of public office and public administration employees.

1. Holders of public office include:

i. Chief Executive and Principal Officials;

ii. Members of the Legislative Assembly;

iii. Judges and prosecutors;

iv. Members of the Executive Council;

v. Management personnel and heads of public administration services, including autonomous services, autonomous funds and other public institutions, as well as presidents and members of administration, management and supervisory organs of such public administration entities;

vi. Holders of positions of management and supervisory organs of public or publicly owned enterprises or enterprises with a majority public shareholding, as well as concessionaires of public property;

vii. Official directors and government delegates representing Macao Special Administrative Region;

viii. Holders of other positions equivalent to directors or chiefs of public services, in particular cabinet chiefs and advisors.

2. The following personnel, including those of autonomous services, autonomous funds and other public institutions, are considered public administration employees:

i. Those of definitive appointment or fixed term appointment;

ii. Those of provisional appointment or appointment with administrative contract;

iii. Those contracted to provide subordinated services;

iv. Civil or militarized personnel of the Macao Public Security Forces;

v. Personnel of Customs Services.

3. The following persons are required to submit Part IV of the Declaration of Assets and Interests to the Court of Final Appeal:

i. Chief Executive and principal officials;

ii. Members of the Legislative Assembly;

iii. Judges and prosecutors;

iv. Members of the Executive Council;

v. Cabinet chiefs;

vi. Directors and deputy directors, or holders of equivalent positions of public administration services, including autonomous services, autonomous funds and other public institutions, as well as the presidents and members of administration, management and supervisory organs of such public administration entities;

vii. Holders of positions of management and supervisory organs of public or publicly owned enterprises or enterprises with a majority public shareholding, as well as concessionaires of public property.

(2) Submission period for Declaration of Assets and Interests

Declarants are required to submit the Declaration within 90 days of commencement of duty.

Declarants are required to submit a Declaration with the most updated information within 90 days of the following:

1. Termination of office;

2. Re-appointment, being elected or renewal of post;

3. Change in entity or service to which the public administration employee renders services, change in the legal and functional situation involving a change of duty, or a change in salary, basic remuneration or permanent bonus equivalent to or higher than the index of 85 on the public services salary scale;

4. If there are no changes in the situation of the post of the public administration employee, corresponding to the previous paragraphs, a new declaration shall be submitted after five years.

(3) Composition of the Declaration

Declaration of Assets and Interests are composed of the following four parts:

1. Part I: contains personal information of the declarant and his/her spouse or de-facto spouse, as well as the salary index or monthly remuneration of the declarant;

2. Part II: contains information for strict assessment of the assets and income covered by the Declaration at the time it is provided, relative to the declarant and his/her spouse or de-facto spouse, namely:

i. Assets, including real estate property, commercial enterprises or industrial establishments, shares, stocks, participation or other shares of capital in civil or commercial companies, ownership of ships, aircrafts or vehicles, securities portfolios, as well as bank accounts, cash, debentures, works of art, jewelry and other objects with a value higher than the index of 500^[2] on the public services salary scale;

ii. Income relating to employment or professional activities, including allowances and retirement or reform pensions, commercial or industrial activities, real estate property, copyright or industrial property and capital investments;

iii. Liabilities, including debts with a value higher than the index of 500 on the public services salary scale;

iv. Positions, functions or activities carried out as a concurrent post, which provides remuneration or other material advantage;

v. If the declarant is commencing or re-commencing his/her functions, the declarant shall provide identification of the entities to whom he/she has rendered services in the two years prior to submission of Declaration.

3. Part III: contains information of direct or indirect economic benefits or privileges obtained in the previous two years while holding public office, namely financial sponsorship, payment of travel and accommodation abroad, economic benefits obtained from public or private entities, other than those resulting from holding his/her position.

4. Part IV: contains ownership information regarding real estate property, commercial enterprises or industrial establishments, shares, stocks, participation or other shares in capital in civil or commercial companies, and positions held in any non-profit organizations.

(4) Location for submission of Declaration of Assets and Interests

Holders of public office, personnel of the Commission against Corruption and his/her spouse or de-facto spouse shall submit the Declaration of Assets and Interests to the Court of Final Appeal. Other public administration employees and his/her spouse or de-facto spouse shall submit the Declaration to the Commission against Corruption.

(5) Procedures for Access to the Declaration of Assets and Interests

Access to the register of Declarations, as well as Parts I and IV of the Declarations are free; Part IV is open to public through the Court of Final Appeal website. On the other hand, the declarant has free access to his/her Declaration and its case file.

Prosecutors, judges, the Commissioner against Corruption, criminal police bodies or authorities may have access to the entire Declaration or part of it for the purpose of criminal investigation. Access to the Declaration kept at the Court of Final Appeal is subject to prior authorization by the President of the Court of Final Appeal; whereas, access to the Declaration kept at the Commission against Corruption is subject to prior authorization by the Commissioner against Corruption. The application for access to Part II of the Declaration shall contain facts stating which the knowledge of the contents of the Declaration is indispensable to the discovery of truth in criminal proceedings, and shall be accompanied by evidence of such facts.

In addition to prosecutors, judges, the Commissioner against Corruption, criminal police bodies or authorities, other public entities with respective responsibilities, as well as any natural or legal person may have access to Part III of the Declaration, provided they demonstrate a legitimate interest relevant to the knowledge of the contents of the Declaration.

(6) Failure to submit Declaration

In case an obligated declarant has been found to have failed to submit a Declaration within the deadline, the President of the Court of Final Appeal or the Commissioner against Corruption shall order the declarant to submit a Declaration within a deadline of no more than 30 days.

Failure to comply with this order will result in disobedience offence, in which the case shall be transferred to the Public Prosecutions Office for criminal proceedings.

If the declarant presents a written justification for the delay in submission of Declaration, the President of the Court of Final Appeal or the Commissioner against Corruption may consider this a reasonable delay in submission.

(7) Inaccuracy of information declared

He/she who provides inexcusable inaccuracy of information in any Part of the Declaration is subject to a fine equivalent to three months to one year of remuneration of the position held.

He/she who intentionally declares inaccurate information in any Part of the Declaration shall be liable to a punishment equivalent to the offence of providing false statement or declaration; in case a fine is sentenced, the amount shall be no less than six months remuneration of the position held.

For the purposes of criminal proceedings for the offence under the preceding paragraph, the President of the Court of Final Appeal or the Commissioner against Corruption shall, as appropriate, present to the Public Prosecutions Office the certificate of Declaration with incorrect information and other procedural documents deemed relevant.

(8) Unjustified wealth

Those obligated to present a Declaration are found personally or through an intermediary, in possession of assets abnormally higher than the assets declared, and are not able to provide any concrete explanations as to how the assets were obtained or reasonably demonstrate their lawful origin, are punishable to imprisonment of up to three years or subject to fine.

The assets or income whose possession or origin has not been justified under the preceding paragraph may, with a sentence of conviction, be declared forfeited in favor of the Macao Special Administrative Region.

(9) Prohibition of exercise of duties or functions

Those convicted of providing inaccurate information or unjustified wealth may be banned from public office or from exercising public functions for up to ten years.

(10) Spouse’s duty to cooperate

The declarant’s spouse or de-facto spouse is required to provide all information necessary in the Declaration, but may choose to submit individually Parts I and II of the Declaration.

Those who intentionally and unjustifiably fail to comply with the obligation mentioned above are punishable to imprisonment of up to two years or subject to a fine of up to 240 days.

3. Corruption case of former Secretary for Transport and Public Works and the regime of declaration of assets

Ao Man Long, the former Secretary for Transport and Public Works of Macao was arrested in December 2006 on charges of accepting bribes, unjustified wealth, amongst other offences.

During the first stage of investigation, law enforcement agencies found that Ao Man Long had ownership of approximately US$100 million worth of assets. However, at the time, only US$22.5 million were proven to be obtained from accepting bribes, the remaining was subject to further investigation.

Law enforcement agencies provided criminal evidence of Ao Man Long to the President of the Court of Final Appeal, requesting the approval for access to Ao’s Declaration of Assets and Interests and to issue certified copies of the Declaration, which was granted.

After comparing the information provided by Ao Man Long in his Declaration of Assets and Interests, it was found that a majority of assets in which he actually owned was not declared. The abnormal increase of wealth was equivalent to 56 times of his total salary during this period, yet, he was unable to justify the origin of these assets or demonstrate its lawful origin.

In January 2008, Ao Man Long was convicted, by the Court of Final Appeal, a total of 57 counts of accepting bribes, abuse of power, inaccuracy of information declared, unjustified wealth and money laundering, where he was sentenced to 27 years of imprisonment, a fine of US$30,000, and a total of US$100 million worth of cash and assets were declared forfeited in favor of the Macao Special Administrative Region^[3].

The declaration of assets played an important role in this case, allowing law enforcement agencies and judiciary organs prompt confiscation and forfeiture of unjustified wealth possessed by Ao Man Long. In subsequent investigation, a majority of Ao’s corrupt acts were identified.

Based on the decision of the Court of Final Appeal made in January 2008, local authorities in Macao initiated the recovery of illegal assets.

With the assistance of the Independent Commission against Corruption of Hong Kong Special Administrative Region and through civil proceedings, Macao was able to recover assets worth approximately US$55 million Ao Man Long kept in Hong Kong.

In addition, with the help of UK Crown Prosecution Service and through mechanisms for legal assistance in criminal matters, Macao was able to recover assets worth approximately US$40 million Ao kept in the UK.

Along with the assets confiscated or forfeited in Macao, most of Ao’s assets obtained through corruption were recovered.

4. Conclusion

In Macao, all civil servants, despite his/her position, are required to present a Declaration of Assets and Interests.

The declaration of assets reflects the financial situation of the declarant and his/her spouse at the time of declaration, thus, letting us know whether his/her assets have abnormally increased.

According to the “Legal Regime of Declaration of Assets and Interests”, failure to declare may constitute a disobedience offence.

Intentionally providing inaccurate information may constitute an offence of inaccuracy of information declared.

Abnormal increase in assets and failure to provide justification on their lawful origin may constitute an offence of unjustified wealth.

So far, the “Legal Regime of Declaration of Assets and Interests” has been working well.