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

Written submissions

Members noted that one submission from the Hong Kong Bar Association had been received in addition to the 25 submissions already received as at 28 November 1995. The updated summary table and the new submission were tabled at the meeting for reference of Members and representatives of the Attorney General’s Chambers (AGC) and Independent Commission Against Corruption (ICAC) (subsequently issued to Members not present vide LegCo Paper No. HB 327/95-96).

2. The Chairman asked and Members present agreed to follow up points of interest arising from these submissions with the Administration or the ICAC as they considered appropriate when the relevant provisions were being discussed.

Meeting with the AGC and ICAC

Matters arising from the previous meetings

3. The Chairman brought up the following outstanding issues arising from previous meetings, in relation to the provisions of the Prevention of Bribery Bill, for the Administration and the ICAC to respond.

Section 14 of the POBO. Power to obtain information

4. Mr R ALLCOCK informed the meeting that neither the Supreme Court Ordinance nor the Rules of the Supreme Court had made provision for challenge against an order made by a High Court judge in an ex parte application. At the Chairman’s request, Mr ALLCOCK agreed to consider from the angle of the Bill of Rights Ordinance (BRO) whether such a lack of appeal channel was appropriate.

Adm

5. At Mr Eric LI’s request, Mr ALLCOCK undertook to consider the need for rules of court under the Supreme Court Ordinance on how to handle court case applications in order to ensure confidentiality. Legal Adviser (LA) drew attention to Rules of Supreme Court Order 116, Rule 5 dealing with confidentiality in Organized and Serious Crimes Ordinance (OSCO) applications.

Adm

6. Mr ALLCOCK agreed that a broader definition of the word "control" might be helpful. He would make reference to similar sections of OSCO.

Section 16. Powers of search, and to obtain assistance

Section 17. Further powers of search and seizure

7. Mr ALLCOCK said that, if these amendments were passed, editorial changes to the headings of these sections would be made when the next loose-leaf edition was published.

8. Mr ALLCOCK agreed that the criterion of "the court is satisfied" in section 14 would apply to section 17(1A) (to replace "appear to the court") and to section 17(1B) (to replace "appear to the Commissioner").

Section 14C. Restraining orders

9. Mr ALLCOCK confirmed that leakage of information could be prevented by way of administrative arrangement.

Section 13A. Order to make material available and to render assistance

10. On Members’ request for examples to justify the full necessity for access to IRD tax records for non-IRD related cases, Mr de SPEVILLE undertook to provide Members with a note which would set out what was needed for an inquiry related to section 10 cases, i.e. possession of property above earning power.

ICAC

11. Two charts prepared by the ICAC, which compared the existing powers given to ICAC under the provisions of the POBO and the Independent Commission Against Corruption Ordinance (ICACO) respectively with those given to the Inland Revenue Department (IRD) under the provisions of the Inland Revenue Ordinance (IRO), were tabled for Members’ reference. The tables were subsequently issued to Members not present vide LegCo Paper No. HB 327/95-96. Mr Eric LI cautioned that the IRO was to enable the collection of revenue, and not to assist the law enforcing agencies to collect tax return information. It would be more appropriate to empower the ICAC to collect such information from the person concerned within the POBO instead of for ICAC to obtain them from the IRD. However, LA reminded Members that there would still be difficulty (to empower the ICAC within the POBO) since ICAC might need access to past documents lodged with the IRD many years ago. LA undertook to study the charts and would advise Members in a note.

LA

Consistency with the Bill of Rights Ordinance (BORO)

12. The meeting then considered Recommendations 9, 23, 24, 34 and 35 of the ICAC Review Committee which were to amend or repeal existing legislative provisions to make them consistent with the BORO.

Recommendation 9

(Section 13. Special powers of investigation)

13. Members noted that the proposed provision would require the Commissioner to have reasonable cause to believe that an offence under the POBO might have been committed before invoking his special powers of investigation.

Recommendation 23

(Section 17A. Surrender of travel document)

14. Members noted that the proposed provision would limit the Commissioner’s power (to apply to a magistrate for a notice requiring a person to surrender his travel documents) to situations in which the Commissioner reasonably suspected that such person had committed an offence under the POBO.

Recommendation 24

(Section 17B. Return of travel document)

15. Members noted that the proposed provision would give a person who had surrendered a travel document the option of applying to the Commissioner or a magistrate, or both, for its return. On LA’s enquiry, Mr ALLCOCK confirmed that although section 17B was replaced in its entirety, the only material change to the section was that the person could decide himself, without the leave of the Commissioner, to apply either to the Commissioner or to the court for the return of travel document.

Recommendation 34

(Section 20. Admissibility of accused’s declarations and statements)

16. Mr ALLCOCK explained that a statutory declaration or a written statement made by a person in compliance with a requirement under section 14 (power to obtain information) could be used against him under the current laws. The new provision would give greater protection to the person since a declaration or statement would only be admissible against him if he gave evidence that was inconsistent with it. Mr ALLCOCK informed Members that the Court of Appeal in England had recently decided on a case which had implications on the extent to which an involuntary statement made by a person could be used against him in a criminal proceeding. He undertook to study the new provision again in the light of the ruling and would revert to the Bills Committee at a future meeting. At the Chairman’s request, Mr ALLCOCK would supply the appeal case itself to Members for reference. The Chairman asked and Mr J E BUCKLE replied that ICAC rarely needed to use a statutory declaration or written statement made by a person section 14 against him in court. For Members’ information, LA tabled an extract of the Evidence Ordinance (Cap. 8) containing section 13 (proof of contradictory statement of adverse witness) and section 14 (cross-examination as to previous statement in writing) which were subsequently issued to Members not present vide LegCo Paper No. HB 327/95-96.

Adm

Recommendation 35

(Section 14A. Restriction on disposal of property, etc.

Section 14B. Reversal or variation of Commissioner’s decision

Section 25. Presumption of corruption in certain cases

Section 26. Comment on failure of accused to give evidence)

17. Mr ALLCOCK explained that section 25 contained a mandatory presumption by which any advantage proved to have been offered or accepted by the accused should be presumed as having been offered or accepted as an inducement or reward in proceedings under section 4 or 5. This presumption which put the onus of proof on the defendant should be repealed in order to be in line with the BORO. The Chairman asked in relation to cases after enactment of BORO and Mr de SPEVILLE replied that ICAC or the court had never used this mandatory presumption.

18. Mr ALLCOCK said that section 26 provided that it was lawful for the court to comment on the failure of the accused to give evidence on oath. The Bill sought to repeal that provision which prejudiced the accused’s right to silence. The Chairman asked and Mr de SPEVILLE replied that courts had never relied on this provision to make such a comment.

Clause 3

(Section 10(2)(possession of unexplained property))

19. Mr ALLCOCK drew Members’ attention to Clause 3 which amended section 10(2) so that the presumption that certain assets were in the control of the accused arises "in the absence of evidence to the contrary" rather than "until the contrary is proved". The amendment was to make the provision compatible with the BORO by replacing the legal presumption with an evidentiary presumption so that the accused was not required to prove that the assets were not in his control but only to provide evidence to rebut the presumption.

20. The Chairman asked how ‘closeness of relationship’ was defined and how far its extent would be stretched. Messrs de SPEVILLE and BUCKLE explained that it would depend on the circumstances of each particular case and it would be important to trace the link, not necessarily a blood relationship, through assets shown in the IRD records. The Chairman remarked that it might not be fair to the defendant if information was to be traced back to many years ago. In this connection, Mr ALLCOCK observed that it was for the court to decide whether the presumption should apply, having regard to the closeness of the person to the accused and the reasons to believe that such a person was holding property on behalf of the accused. ICAC agreed to the Chairman’s request to provide examples in writing to illustrate ‘closeness of relationship and other circumstances’ that might give rise to the presumption under section 10(2).

Adm

21. Miss Christine LOH confirmed that she would move an amendment to section 30 of the POBO along the lines of the Organised and Serious Crimes Ordinance.

Provisions of the Independent Commission Against Corruption Ordinance (ICACO)

22. The meeting then deliberated on Recommendations 41 and 44 which dealt with the power of the Commissioner of ICAC to dismiss an officer under section 8(2) of the ICACO.

Recommendations 41 and 44

(Section 8(2)(appointment of officers))

23. Mr ALLCOCK briefed Members on the proposed section 8(2). It would require ICAC to inform the officer of the reasons for the proposed termination and permit the officer to make written representations. The officer’s right to appeal to the Governor against the termination would be set out in writing too. Mr de SPEVILLE said that such procedure and right already existed. The amendments were only to set them out expressly in the legislation.

24. Mr Andrew CHENG welcomed the move. However, he queried the usefulness of an officer’s right to appeal to the Governor since the approval of the Governor had to be obtained for the dismissal of an officer of the Directorate rank. The Chairman and Miss Christine LOH shared the view. The Administration was then asked to reconsider whether the Governor should make a decision on an appeal against termination made by a staff under the provision of the ICACO. Mr CHENG then advanced that there should be a statutory appeal channel. Mr ALLCOCK pointed out that the objective of the Bill was to implement the recommendations of the ICAC Review Committee which did not cover any statutory appeal system for the dismissal of an officer. On Mr CHENG’s enquiry, Mr ALLCOCK confirmed that judicial review would not be excluded by the provision. LA also drew Members’ attention to the recommendation by the ICAC Review Committee that the Commissioner should seek the advice of the Advisory Committee on Corruption (ACOC) before making a decision to terminate the appointment of an officer and should obtain the Governor’s approval if an officer of the Directorate rank was involved. However, he noted that the involvement of the ACOC and the Governor prior to the termination were not prescribed in the Bill.

Adm

25. Mr ALLCOCK explained that since ACOC was only an advisory body, it would not be given legal power. The main legal protection which the officer would require had already been built into the proposed section 8(2).

26. The Chairman pointed out that since many important functions had been added on to the ACOC and the Operations Review Committee (ORC) since the Report of the ICAC Review Committee, and that there was a trend to upgrade monitoring bodies (particularly those related to law enforcement agencies) to statutory bodies, the Administration should consider making the ACOC and the ORC statutory bodies and prescribing their functions and roles in the legislation. Mr de SPEVILLE, however, held a different view. He said that since ICAC was a disciplinary body, the Commissioner should have the power to appoint and to dismiss an officer although he would give due regard to ACOC’s advice. He further drew Members’ attention to the recommendation of the ICAC Review Committee which clearly stated that there were no compelling reasons for the ICAC committees, which were advisory in nature, to become statutory bodies. In addition, to give these committees statutory status would mean a fundamental change of the structure of the Commission and its chain of accountability, as provided for in the ICACO and reflected in the Basic Law.

27. Miss Christine LOH and Mr Eric LI were of the view that creation of an extra layer of statutory bodies was a complicated issue and would require further deliberation. Mr LI also pointed out that the issue might be outside the purview of the Bills Committee. The Chairman said that it would be important to stipulate the procedure of ICAC committees, particularly the ORC, in legislation for the sake of the future administration.

Dates of future meetings

28. Two meetings had been scheduled as follows :

1. Thursday, 21 December 1995 at 8:30 a.m.
2. Friday, 5 January 1996 at 8:30 a.m.

Members agreed that they would continue with section 10(2) of the POBO in the next meeting.

29. The meeting ended at 4:35 p.m..

LegCo Secretariat
15 January 1996