Minutes of the Ninth Meeting of the Bills Committee to study
the Prevention of Bribery (Miscellaneous Provisions)(No.2) Bill 1995

Meeting with the representatives of AGC and ICAC

The Chairman took Members through the letter dated 20 January 1996 from Mr R ALLCOCK who wrote on a number of outstanding issues (issued vide LegCo Paper No. HB 510/95-96). Members then discussed these issues. The gist of their deliberations is summarised in the following paragraphs.

Anonymity of ‘innocent’ tax payer

2. Members discussed the issue of tax anonymity at the last meeting. Members in general were reserving their position on the issue of preserving anonymity beyond the third party because they feared that this proposal might lead to "secret trials". Members asked the Administration to re-consider the matter and to identify precedents for imposing reporting restrictions in respect of judicial proceedings. Mr ALLCOCK had replied to Members’ questions on 30 January 1996 in his letter which was issued vide LegCo Paper No. HB 581/95-96.

3. The Chairman invited views from Members on the two possible restrictions which could be introduced to empower the court to prohibit, as follows :

1. the publication of any information likely to lead members of the public to identify the taxpayer or (possibly) others referred to in the tax returns; or
2. the publication of any information that the taxpayer reasonably regards as confidential.

The Chairman was of the view that the first restriction would be more appropriate because (a) it could serve the purpose of protecting the identity of the third or other party and; (b) it would be difficult to enforce the second restriction since it would be difficult to establish the objective criteria for information to be reasonably regarded by the tax payers as confidential. In this regard, Mr ALLCOCK said that the restriction imposed under the Crimes Ordinance was also along the line of the first restriction proposed. Mr Albert HO said that information which could not be related to a particular person or company could be disclosed for the sake of open trial. He would therefore support the first restriction which prohibited publication of any information which was likely to lead the public to identify the taxpayers or other parties. The second restriction was relatively too broad, the drafting of which should be narrowed down if it were to be adopted.

4. Mrs Selina CHOW and Mr Eric LI however held a different view. They felt that the second restriction could more adequately protect the innocent third party. Mrs CHOW pointed out that it was important to protect the integrity of the tax records and the court should be empowered to decide whether information should be allowed to be disclosed. It would not be too broad since the criteria as mentioned in para. 9 of the letter could be set out for the court’s judgement and the first restriction could be one of the criteria as well. Mr LI pointed out too that other information, apart from the name, could lead to the disclosure of a person’s identity, particularly to insiders or even people in the trade. He stressed that even if criminal activity was detected in the tax record, the Inland Revenue Department could not report to the police, due to the secrecy provision of section 4 of the Inland Revenue Ordinance. He further cited the case of medical records of patients being submitted to court openly and said that the patients’ privacy had been infringed even if their names were not disclosed. The second restriction which gave the taxpayers an opportunity to express themselves and then the court the power to judge was therefore more appropriate.

5. Mr Andrew CHENG supported the principle of the proposed restrictions in general. He opined that the court should be entrusted to balance between the investigation power of ICAC and privacy. It was therefore acceptable to have a broad restriction. However, the drafting would be delicate and needed to be considered carefully. At Mrs Selina CHOW’s suggestion, Mr ALLCOCK undertook to prepare preliminary drafting for both restrictions for Members’ further consideration.

Adm

6. In this connection, Legal Adviser (LA) noted that Members might wish to consider the legal policy point as to whether a person should have to apply for restriction at his own expense or whether legal aid should be available. This was relevant because such applications could be related to Bill of Rights protection of privacy grounds.

Presumption in section 10(2) of POBO

7. Members noted the cases which had quoted abuse of process of prosecution as a ground of defence, as provided by LA vide LegCo Paper No. LS 69/95-96.

8. Members also noted that the Administration did not agree with the Chairman’s suggestion that the prosecution should only be able to rely on the presumption in section 10(2) if it called the ‘other person’ as a witness. The Chairman referred to para. 23(i) of the Annex to the letter and asked if it was probable that a third party would be asked to prove the statement made by the ‘other person’. Mr J E BUCKLE responded that such a case would not be precluded but pointed out that the value of the statement would be assessed by the AGC. AGC would take a wide view of its relevance and the statement (even if regarded as misleading) would be served on the defendant. The Chairman maintained that the defendant would be deprived of the opportunity to disprove the truth of fact contained in the statement if the Crown decided not to call the ‘other person" as witness. Mr BUCKLE said that the trial would likely be adjourned if a material witness was missing. ICAC would in practice assist the defendant to trace such a witness if there was a request. The defendant could also have the power of compulsion via the court.

9. The Chairman held the view that if a witness could be traced, ICAC should be obliged to make the witness available for the defendant because of the special nature of such a presumption under section 10(2). Mr ALLCOCK pointed out that any defence counsel could argue during the trial that reasonable doubt was cast on the allegation in the absence of a key witness. The court could then make its own judgement to reach a fair verdict. He said that there was no precedent for such an obligation on the prosecution and the suggestion was unworkable. Mr BUCKLE supplemented that such a legal obligation would defeat the effect of section 10 in that it would be subject to manipulation by the defendant, and would result in an unnecessary prolonged trial. It would also be difficult for the ICAC to prove that it had discharged such an obligation In this regard, the Chairman maintained that the court could decide whether ICAC had taken all reasonable steps to trace the witness and stressed that an absolute duty was not called for.

10. The Chairman queried why a similar provision in the Drug Trafficking (Recovery of Proceeds) Ordinance which required reasonable steps to be taken to trace an absconded defendant before a court could make a confiscation order against such person could not apply. Mr ALLCOCK remarked that it was because recovery of proceeds required completion of confiscation proceedings whereas a trial was a different matter.

11. Mr Andrew CHENG shared the Chairman’s view that ICAC should be required to exhaust all means to produce the witness requested by the defendant for the sake of a fair trial although he appreciated the difficulties which ICAC would face. LA remarked that although the intention in expressing this as a statutory duty was to equalise a perceived unequal trial situation, he was worried that such a legislative provision might in practice distort the balance between prosecution and defence.

12. Mr Albert HO asked whether the defendant could be given the power to summon the party involved if the presumption was invoked during a pre-trial process. If the defendant applied for the invocation of such power from the court, the ICAC and the Police should make the party involved available for the purpose of taking a statement. Mr BUCKLE commented that it was a reasonable request during the investigation stage. The Chairman requested the Administration to consider the points expressed at the meeting, particularly the suggestion made by Mr HO.

Adm

Section 14 of POBO

13. Members noted that the Administration agreed to move an amendment to limit the Commissioner of ICAC’s ability to obtain information from third parties, as set out in para. 9 of the letter. Mr ALLCOCK pointed out that it would further limit the power of ICAC to obtain documents to those which were relevant to the investigation.

14. Members then proceeded to discuss other outstanding issues arising from previous meetings. The ensuing discussion is summarised in the following paragraphs.

Discussion papers for the ICAC Review Committee .

15. Mr Albert HO briefed Members on the view of the Democratic Party regarding the issue. He said that the Party had decided not to pursue the issue in order not to delay the enactment of the Bill. It was reiterated that the discussion papers for the ICAC Review Committee were not requested for the purpose of a comprehensive review. Nevertheless, issues concerning other provisions of the POBO which had not been covered by the Bill would still be raised. The Party further suggested that the LegCo Security Panel should set up a subcommittee to follow up the matters and such discussion papers might then be requested.

Chairman

16. Members noted that the Chairman was preparing issues concerning other provisions which had not been covered by the Bill for the Bills Committee to consider such as section 7 and section 9. Miss CHAN Yuen-han requested and the Chairman agreed to forward the issues for Members’ consideration as early as possible.

Section 30 of the POBO

17. A supplementary proposal from Hon Christine LOH which addressed ICAC’s concerns regarding her original proposed amendment to section 30 of POBO (issued vide LegCo Paper No. HB 533/95-96) was tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. HB 613/95-96. Miss Christine LOH urged the Bills Committee to reconsider section 30 in light of this supplementary proposal which could protect the integrity of ICAC’s investigation.

Date of next meeting

18. The next meeting would be held on Thursday, 8 February 1996 at 10:45 a.m. to discuss section 30 of POBO. The Clerk was asked to inform Members accordingly and to remind them to bring along relevant papers to the meeting.

Clerk

19. There being no other business, the meeting ended at 10:20 a.m..

LegCo Secretariat
7 March 1996