Minutes of the Tenth 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

Hon Christine LOH’s proposal on section 30. Offence to disclose identity, etc. of persons being investigated

Members noted that Hon Christine LOH’s proposal was issued vide LegCo Paper No. HB 533/95-96. Her supplementary paper was tabled at the last meeting held on 2 February 1996 (and subsequently sent to absent Members vide LegCo Paper No. HB 613/95-96). The Administration’s view on the section was also set out in Annex 5 of the AGC’s letter dated 11 January 1996 tabled at the meeting held on 12 January 1996 (subsequently issued to absent Members vide LegCo Paper No. HB 469/95-96).

Briefing by Hon Christine LOH

2. Miss Christine LOH briefed Members on her proposal. Miss LOH pointed out that section 30 was unique in Hong Kong or among comparable jurisdictions because (a) it was unlimited in character which imposed a total media blackout; and (b) it was harsh and severe since it imposed criminal offence on news reporting in respect of corruption investigations. She explained that her original amendment was to add a defence, i.e., "likely to prejudice an investigation" and her supplementary paper was to reform section 30. She supplemented that the proposed provisions in her supplementary paper had addressed the five reasons for upholding section 30 given by the Administration in para. 3 of Annex 5 to AGC’s letter dated 11 January 1996. These specific provisions, which covered professionals, persons who came into contact with the investigation and ICAC officers, could protect the integrity of investigations at their early vulnerable stage. There would be no restriction on media reporting. She urged that it was the duty of legislators to tilt the right balance between media freedom and anti-corruption work. She stressed that individual reputation had already been adequately protected in the context of libel and defamation law.

Administration’s stance regarding the proposal

3. At the invitation of the Chairman, Mr R ALLCOCK responded to Miss LOH’s proposal by pointing out that section 30 did not impose a complete blackout on media reporting. Disclosure would be allowed if there was lawful authority or reasonable excuse. He referred to the Court of Appeal’s decision regarding the Ming Pao Newspapers case that section 30(1) did not impose an absolute prohibition. If a person had a bona fide belief that disclosure of details of an investigation was for the purpose of revealing abuse of power and irregularity, the defence of "reasonable excuse", i.e., in public interest, would apply. He reiterated that court judgements had demonstrated the justification of section 30 for the protection of corruption investigation and respect for the right and reputation of others.

4. As regards the original amendment, Mr ALLCOCK remarked that the arguments against the test of "intending to prejudice an investigation" as set out in Annex 5 of their letter dated 11 January 1996 could apply to the test of "likely to prejudice an investigation" as well. He described different scenarios of disclosures and pointed out that it would be extremely difficult, if not impossible, to prove that an offence under section 30 had been committed if the test of "likely to prejudice an investigation" had to be applied (even if the investigation had been prejudiced). The amendment thus failed to protect the integrity of an investigation. It would be difficult to prove a causal link between the disclosure and the effect on the investigation during a normal course of events. In addition, an investigation could still be prejudiced even though the disclosure was unlikely to prejudice it in the first place. He therefore concluded that the original amendment was not supportable.

5. As regards the supplementary proposal, Mr J E BUCKLE queried the feasibility of identifying particular groups of people to prevent disclosure. He was worried over the loss of control this would have on other persons privy to the information by way of association but not restrained by the legislation. He stressed that section 30 was an essential element of a comprehensive anti-corruption strategy. Mr ALLCOCK also held the view that the supplementary proposal was unacceptable in that the media would not be held responsible for any reporting even if an investigation of corruption was ruined as a result of it. In response to the Chairman’s enquiry, Legal Adviser (LA) confirmed that it was technically possible to redraft section 30 in such a way to target specific sources of leakage. However, he urged Members to consider whether it was their wish to exclude the media from the restriction. In this regard, the Chairman was of the view that it might be difficult to define what behaviour was to be prohibited even though certain groups of people could be identified. Miss Christine LOH responded that it might be the price to pay in striking a balance that investigation would be prejudiced in some cases.

Views of other Members present

6. Mr Andrew CHENG supported Miss Christine LOH’s proposal in principle and disagreed that an investigation regarding corruption needed more protection than that of the serious crimes. Although he acknowledged the difficulty of applying the test of "likely to prejudice an investigation", it was necessary to strike a balance between media freedom and the integrity of investigation. Mr CHENG pointed out that the professionalism of journalists should also be respected. The journalists would take the public interest into account in their reporting. He further asked whether there was comparable provision in other jurisdictions such as in New South Wales in Australia. Mr BUCKLE responded that there was no comparable provision in other jurisdictions to his knowledge. Mr CHENG suggested that the Bills Committee should make reference to overseas practices. In this regard, Mr C J KERSHAW reminded Members to give special consideration to Hong Kong as an unique geographical entity where ways of communication were well-developed for a person to depart from the territory easily. In response to Members’ request, Mr BUCKLE agreed to provide a paper, (a) to research whether other jurisdictions had similar provisions as section 30 in their legislation; and (b) to analyse the experience and problems of other jurisdictions which did not have a similar provision of section 30 in their legislation, for Members’ reference in two weeks’ time.

Adm

7. Mr Albert HO shared the view that the suspect’s reputation in corruption investigation cases should not need more protection than those involved in other serious crimes. He stressed the fundamental legal principle that it should not be a civil wrong to publish something which was true. He further opined that it was an issue to educate the public that investigation was not equal to proof of guilt. Sanction therefore should not be imposed on the press.

Way forward

8. To facilitate Members’ consideration of the proposal, LA was asked to work with Miss Christine LOH and to prepare two sets of drafting regarding the original amendment and supplementary proposal respectively.

LA

Views of the Hong Kong Journalists Association

9. LA drew Members’ attention to the representation from the Hong Kong Journalists Association which proposed to add a "public interest" defence to section 30 (issued vide LegCo Paper No. HB 534/95-96). Mr ALLCOCK undertook to consider their views and revert to Members at a future meeting.

Adm

Date of next meeting

10. The next meeting would be held on Wednesday, 14 February 1996 at 10:45a.m. to discuss other outstanding issues. The Clerk was asked to draw up an agenda and to remind Members to bring along relevant papers to the meeting.

Clerk

11. There being no other business, the meeting ended at 12:15 p.m..

LegCo Secretariat
11 March 1996