By Uncle Cheng
The case of Alexander Litvinenko, the former Russian spy whose life came to a bizarre end when he was poisoned by a rare radioactive isotope, continues to haunt Moscow and is attracting worldwide attention. Acres of newsprint and hundreds of hours of television coverage have been devoted to the mysterious circumstances that led to his death in a London hospital.
The case has all the hallmarks of a James Bond thriller or a Le Carre triple-twist plot but the Litvinenko case is unique in that it is being played out in the full glare of public investigation.
As I followed the incredible twists and turns of Litvinenko's life and death, my lawyer's mind became intrigued by what had happened to Litvinenko in 1999. At the time he was a high ranking officer in the KGB, which was the notorious and infamous Soviet security agency and the equivalent of the British MI6 or the American CIA. Following the demise of the Soviet Union the KGB changed its name to FSB but it appears it did not change its tactics. Litvinenko continued to work in the FSB until he fled to exile and arrived in London in November 2000.
Just before he managed to escape Russia first to Turkey and then to London (he claimed asylum at Heathrow airport while in transit) Litvinenko had been incarcerated for eight months in what the Russian legal system calls 'pre-trial detention' and which to us means that he was refused bail pending his trial. What most intrigues me as a lawyer is the details of the criminal charges he faced. They are of great legal interest because he was charged with what we in Hong Kong call 'misconduct whilst in public office' and which the Russian legal code calls 'abuse of power whilst in public office'.
What, I wondered, was the actual background to the charges? Presumably, like all secret agents and possibly most civil servants the world over, Litvinenko surely took an oath of secrecy on his original appointment as a spy. He must have known the nasty details of many of highly unpleasant operations conducted by the spy agency. Like any spy he could cause chaos if he broke his oath of confidentiality and told the public or foreign governments what he knew.
It is well known that Litvinenko took a special dislike to our friend President Putin of Russia, who had himself worked for the KGB. Litvinenko allegedly leaked secrets — important and very embarrassing secrets — about his bosses' wishes to eliminate a man who is one of the richest Russian tycoons and a sworn enemy of Putin. No doubt he leaked directly or indirectly many other secrets that he had sworn to keep secret.
Now, dear readers, come the awkward questions? What is your moral position on this issue? Do you condemn Litvinenko or praise him? There is hardly any doubt in my mind that most sensible people outside Russia will applaud Litvinenko's actions and praise him for exposing such wickedness, if true. However, on the other hand he was clearly in gross breach of his duty of confidentiality to his bosses. In that case his misconduct in public office was a very grave one.
Which brings me to the relevance to Hong Kong's law. There is perhaps a lesson to be learned here for Hong Kong. In 2002 our highest court ruled that misconduct in public office has always been a criminal offence under the common law, even though no one has ever been charged in Hong Kong with such an offence. And because it is a common law offence the maximum possible sentence is life imprisonment.
On the hypothesis that one of our compatriot civil servants in Hong Kong were to reveal something remotely akin to what Litvinenko exposed, what would your reaction be? Would that civil servant be a hero or a villain? Should he be charged with misconduct or should the law be ignored? Does the rule of law have certain limits?
Saturday, January 13, 2007
By Uncle Cheng