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

Written submissions

The translation of the written submissions (Appendix I, Appendices 16 to 26) was tabled at the meeting for Members’ reference and subsequently issued to Members not present vide LegCo Paper No. HB 431/95-96.

2. The Clerk, as instructed by the Chairman, had issued a letter on 15 December 1995 inviting comments from the Administration on a number of written submissions on the Bill. The Administration’s comments had been set out in the letter of 3 January 1996 (issued vide LegCo Paper No. HB 402/95-96). The Chinese translation of the Administration’s letter was tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. HB 431/95-96.

Meeting with the representatives of AGC and ICAC

3. Members noted the letters of Mr R ALLCOCK dated 22 December and 23 December 1995 on the Court of Appeal’s judgement in the case of Attorney General v HUI Kin-hong and the recent ruling by the English Court of Appeal together with the English case (which was R V Saunders) respectively which had been issued vide LegCo Paper No. HB 386/95-96.

4. Members then proceeded to discuss the letter of Mr R ALLCOCK dated 4 January 1996 which set out the responses to various questions raised by Members at the meeting on 21 December 1995. The letter had been issued to Members vide LegCo Paper No. HB414/95-96. The gist of their discussion is summarised in the following paragraphs.

Statutory guidelines to protect confidentiality of tax records

5. Members expressed satisfaction with the Administration’s proposal to add statutory guidelines to the ‘public interest" test in new section 13A of the Prevention of Bribery Ordinance (POBO). However, Mr Eric LI pointed out that his concern about permitting the records of innocent tax-payers to be dealt with in closed court had not been addressed. Mr ALLCOCK agreed to revert to Members later.

6. The Chairman referred to section 13A(2)(c)(ii) and asked whether higher threshold should be set, as in other countries, to allow access to tax records only when all other avenues to obtain such information had failed. Mr ALLCOCK drew Members’ attention to para. 4 of the letter that tax records were often needed to cross-check information obtained from other sources. Mr J E BUCKLE supplemented that corruption was an unique kind of offence and thus its investigation should not be compared to other types of investigations. Mr de SPEVILLE added that tax records could be used to check the explanation given by a suspect and could help to clear him at the outset of the investigation. The Chairman then suggested and Members agreed to discuss the issue further at a later stage.

Adm

Internal guidelines for ICAC on application under section 13A

7. Mrs Selina CHOW asked whether the requirement of written authority regarding tax application to the court would be written down in section 13A. Mr de SPEVILLE confirmed that the section would be amended so that an application for an order must be personally approved by the Commissioner, or a Deputy Commissioner, of the ICAC. In response to Mr Albert HO’s enquiry, Mr BUCKLE explained that such guidelines would be similar to those for application for seizing travel document. In this connection, Mr de SPEVILLE agreed to provide the Standing Orders of the Independent Commission Against Corruption (the open part) for Members’ reference. Mr HO further asked and Mr ALLCOCK pointed out that it would be unusual for Standing Orders (which were administrative guidelines only) to form a subject of subsidiary legislation. However, these Orders had statutory authority from the Ordinance.

ICAC

Prosecution cases under section 10 of POBO

8. The Chairman referred to the largest and the smallest excess amounts involved in past section 10(1)(b) cases which were provided in para. 7 of the letter and noted that prosecution had been instituted in a very cautious and reasonable manner. However, he was still concerned that it would be unduly harsh for the defendant since the level of incommensurateness or disproportion of the possible excess amount and the length of time that could be traced back had not been defined. Mr BUCKLE responded that it would be difficult to stipulate an amount and that ‘excess’ needed to be explained to the satisfaction of the court. Mr ALLCOCK also informed Members that AGC had issued guidelines for prosecutors in deciding whether or not to prosecute a person. In deciding whether prosecution would be in the public interest, prosecutors needed to consider (among other things) the gravity of the offence, likely penalty & staleness of the offence. He further remarked that it would be easy for the defendant to give satisfactory explanation if the amount was small. Mr KERSHAW supplemented that ‘control’ of the material possessions had to be proved as well. To enable Members to understand more of the prosecution policy, Mr ALLCOCK agreed to provide a copy of the AGC’s Prosecution Policy : Guidance for Crown Counsel for Members’ reference.

Adm

9. Mr Eric LI agreed that section 10 of POBO was very useful and that the prosecution would not be instituted if the amount involved was minimal. However, there might be a case to establish specific prosecution guidelines within AGC in respect of section 10 and such guidelines would set out the extent of pecuniary resources or property over the total official emoluments as worthy of instituting a prosecution under section 10. The Chairman shared his view. The Administration was asked to consider establishing prosecution guidelines in respect of section 10 cases. In this connection, Mr de SPEVILLE reiterated that the fact that three parties were involved in a prosecution case, namely, the ICAC, AGC and the court was already a safeguard. He opined that it would not be appropriate to set prosecution guidelines for the AGC to follow.

Adm

Presumption for section 10(1)(a) of POBO

10. Mr Andrew CHENG asked if the presumption in section 10(2) could be applied to section 10(1)(b) too. Mr LI Ming-chak responded that section 10(1)(a) was to deal with Crown servants who had no money whereas section 10(1)(b) was to deal with those who had money. Control of property was not the issue for prosecution under the former section whilst investigation under the latter section involved establishment of a person’s life style beyond his emoluments over a long period of time. Mr de SPEVILLE further explained that the presumption in section 10(2) was dealing with control of property and thus would only be relevant to section 10(1)(b) which was about control of pecuniary resources or property. However, Mr CHENG maintained and the Chairman asked the Administration to consider whether a presumption was needed in respect of section 10(1)(a), given that one existed in respect of section 10(2). In this connection, LA urged Members to study the Court of Appeal’s judgement in the case of Attorney General v HUI Kin-hong on section 10(1) of POBO.

Adm

Proposed amendment by Hon Christine LOH

11. The amendment to section 30 of the Prevention of Bribery Ordinance (POBO) proposed by Hon Christine LOH had been issued to Members vide LegCo Paper NO. HB 410/95-96. The paper was also tabled before the representatives of the Attorney General’s Chambers (AGC) and Independent Commission Against Corruption (ICAC).

12. The Chairman enquired about the Administration’s stance regarding the proposed amendment. Mr de SPEVILLE responded that the proposed amendment would nullify the effectiveness of section 30. It would be impossible to prove an intent to prejudice an investigation and thus would never result in any successful prosecution. Mr ALLCOCK supplemented that section 30 was not only to protect the integrity of the investigation, but also the reputation of the suspect. The question of intention was a subjective test and so the fact that a disclosure was likely to prejudice the investigation would not be sufficient to establish guilty. In this connection, the Chairman opined that the court could draw an inference of intention from the facts.

13. Members in general acknowledged the necessity of section 30 for protecting the integrity of investigation. However, Miss Christine LOH queried why an amendment along the line of section 7 of the Organised and Serious Crimes Ordinance (OSCO) could not be applied to POBO. Mr ALLCOCK explained that section 7 of OSCO was a compromise during the legislative process and its utility had yet to be established. He referred again to the Court of Appeal’s judgement in the case of Attorney General v HUI Kin-hong and stressed that experience of the court had already demonstrated the utility and justification of section 30 of POBO.

14. The Chairman shared Miss Christine LOH’s view and asked why the suspect’s reputation regarding a corruption investigation needed more protection than that of other serious crimes. Mr de SPEVILLE explained that corruption was unique because of its difficulty in detection and proof. It was vital to depend on information which might be given because of a variety of motives. Protection of reputation and information at the very beginning was also important. Mr ALLCOCK added that section 30 was to prevent malicious allegations from damaging the reputation of an innocent party. In this regard, the Chairman and Miss Christine LOH were not convinced of the uniqueness of corruption which rendered protection of the suspect’s reputation essential.

15. Mrs Selina CHOW and Mr Eric LI held a different view which was that protection of one’s reputation was important. Mr LI asked why safeguards in existing legislation against defamation and libel were considered not sufficient. Mr ALLCOCK responded that a statement that a person was under ICAC investigation, following a malicious allegation, would not be a libel since it would be a true statement. Mrs CHOW said that reporting could prejudice an investigation of corruption which would not be in the public interest. Information disclosed prematurely would damage one’s reputation and Members should carefully strike a balance between protection of reputation and public disclosure.

16. Mr Albert HO wondered whether there was justification for inconsistency in the legislation between section 7 of OSCO and the current section 30 of POBO. Legal Adviser (LA) drew Members’ attention to the fact that there had already been different criteria in similar sections of the Drug Trafficking (Recovery of Proceeds) Ordinance (DTO) and OSCO. It would be an offence under section 24 of DTO if a person made any disclosure which was likely to prejudice the investigation.

17. Mr de SPEVILLE further pointed out that section 30 was vital to protect professional advisers in having to provide information to ICAC although they had a duty not to disclose information of client to a third party. He explained to Members the aims of section 30 which were summarised as follows :

1. to protect corruption investigations at the early and vulnerable stage ;
2. to protect professionals (bankers, lawyers, and accountants etc.) who provided ICAC with client information under their statutory duties whereas they also owed a duty of confidentiality to their clients ;
3. to protect the reputation of suspects who might not be guilty of criminal wrongdoing ;
4. to protect those who assisted the ICAC (any disclosure of investigation at an early stage would narrow or actually pinpoint the source of information) ; &
5. to enhance by statute the requirement for professional confidentiality on ICAC officers.

18. The Chairman requested and Mr de SPEVILLE agreed to explain and to elaborate on the aims and purposes of section 30 of POBO in writing for Members’ further consideration. At Miss Christine LOH’s request, ICAC would also explain how their considerations were different from other law-enforcing agencies in investigating and processing cases. Mr Albert HO asked whether disclosure of information was allowed just before a charge was to be laid. Mr BUCKLE pointed out that disclosure of identity of person being investigated had already been allowed under section 30 if there was reasonable excuse. After discussion, Members agreed to consider the proposed amendment at a later stage.

ICAC

Dates of future meetings

19. The next two meetings would be held on

1. Friday, 12 January 1996 at 8:30 a.m.; and
2. Thursday, 18 January 1996 at 8:30 a.m..

20. The meeting ended at 10:35 a.m..

LegCo Secretariat
22 February 1996