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

Meeting with the Administration

Draft Committee Stage Amendments

Regarding the draft Committee Stage Amendments to produce a Chinese text to clauses 15, 16 and 17 (issued to Members vide LegCo Paper No. HB 450/95-96 on 11 January 1996), the Chairman suggested and the meeting agreed to deal with them later.

Matters arising from previous meetings

2. The Chairman invited Mr R ALLCOCK to brief Members on the Administration’s replies to various issues raised by Members at the previous meetings. (Mr ALLCOCK had set out the answers in writing vide his letter dated 11 January 1996 which was tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. HB 469/95-96.) The Chairman also invited responses from Members. The gist of discussions is summarized in the following paragraphs.

Production in court of tax records

3. Mr ALLCOCK said that the Administration did not support the suggestion that a court of trial should be able to consider, in camera, evidence of tax-records of a person who had not been charged. They considered that such action: (a) would be inconsistent with Article 14.1 of the International Convenant on Civil and Political Rights as applied to Hong Kong (which did not specify "protection of privacy of a person not involved in the proceedings" as a ground for excluding the press and the public from criminal proceedings) and (b) would contradict the new section 123(1) of the Criminal Procedure Ordinance. Mr ALLCOCK pointed out that the Administration had agreed to institute safeguards in respect of access to tax-records in order to meet Members’ concern that the secrecy of tax-records of an innocent third party should be respected as far as possible. These safeguards were: (a) to add statutory guidelines to the public interest test to section 13A(2)(c) of the Prevention of Bribery Ordinance (POBO) (as para. 2 of AGC’s letter dated 4 January 1996, issued vide LegCo Paper No. HB 414/95-96 had set out); (b) to amend section 13A(1) of POBO so that an application for a court order under the section must be personally approved by the Commissioner, or a Deputy Commissioner, of the ICAC; and (c) ICAC to draw up internal guidelines concerning such applications.

4. Mr Albert HO then asked the Administration to answer the other point raised by Mr Eric LI at an earlier meeting, which was allowing an innocent tax-payer to present his case against the production of information as evidence publicly in a closed-court session. Mr ALLCOCK replied that the Court should not be asked to prevent admissible evidence from being produced at a criminal trial. Legal Adviser (LA) pointed out that it was a matter of principle for the Administration to maintain such approach. He suggested Members to consider the matter along the line of suppressing the person’s identity when information concerning his tax-records was produced publicly in court as evidence. Mr HO then asked the Administration to consider providing relevant statutory or internal guidelines along the line suggested by LA for the ICAC officers in order to protect the identity of innocent tax-payers. Mr ALLCOCK agreed to consider.

Admin

Presumption under section 10(2) of POBO

5. Mr ALLCOCK submitted that there would be no risk of unfairness in respect of section 10(2) presumption cases because: (a) under the provision of section 31 of POBO, no section 10(1)(b) cases could be instituted except with the consent of the Attorney General; (b) the suspect would know whether the Crown would rely on the presumption (since ICAC would interview him, provide him with the matter that was the substance of the proposed charge and invite his explanation); and (c) the Court had a duty to ensure a fair trial. The purpose of amending section 10(2) was to improve the defendant’s position by no longer requiring him to disprove the presumed facts.

6. The Chairman held the opinion that in order to be fair to the defendant, there must be a provision in the legislation to require the third party to be present during the trial so that the defendant could solicit vital information from him. He quoted an example of a man who was a Crown servant but whose wife was not. The Crown servant suspected that his wife had earned income by unlawful means but she could not be found to give evidence, and he had no power to investigate or arrest.

7. Mr BUCKLE pointed out that the Crown servant could report his suspicion to the investigating officer who could investigate on his behalf. He said that such a problem could also arise in respect of other offences. Mr ALLCOCK said that the Prosecution must consider whether the case could be proved beyond reasonable doubt and whether the defendant’s answers raised or could raise a reasonable doubt. The rules had been designed to ensure fairness in a trial and the Court would certainly comment if there was failure in this respect. The Crown must decide what evidence to produce in a trial and, the move to direct it to produce evidence in a certain way would be an unprecedented one. Mr ALLCOCK further pointed out that if the requirement for the presence of a third party was laid down in the section, the Crown would never be able to rely on this provision if the third party had disappeared.

8. Mr Albert HO said that he did not recall any Ordinance which required the production of a particular witness and that he understood the difficulty on the part of the ICAC if such a requirement was laid down in the POBO. He pointed out that the Court would certainly comment on the fact that the Crown had failed to produce an important witness if it had omitted to do so. He agreed with the Administration that the section could be rendered useless if it contained a written stipulation about the presence of the third party.

9. LA appreciated that it was a question of fairness. He felt that there was at present no pressing need for a reform beyond the scope of the Bill. He suggested that Members await the decision in a relevant appeal case before they considered the appropriateness of the provision, and they could then initiate a Private Member’s Bill if they still considered that such a provision was necessary.

10. Mr Andrew CHENG remarked that the present situation did not warrant such stipulation and he agreed that such stipulation, if made, would impose difficulties on the part of the ICAC. He then asked about the extent of evidence that would be expected from the defendant under the provision of "in the absence of evidence to the contrary". Mr ALLCOCK replied that the Prosecution had to satisfy the court beyond reasonable doubt on the evidence as a whole, and the defendant would not have to prove anything. All he would be required to do was to introduce evidence (or point to evidence led by the prosecution) which, if believed, might create a reasonable doubt on the issue.

11. The Chairman then asked the Administration to set out in point form the arguments for and against the provision to produce the third party as witness in a trial to enable further discussion of the matter.

Guidelines for prosecutions under section 10

12. Mr ALLCOCK referred Members to paragraph 13 of the Prosecution Policy issued by AGC for guidance for Crown Counsel (issued to Members vide LegCo Paper No. 429/95-96 on 8 January 1996) which set out, among other provisions, that "the graver the offence, the less likelihood there will be that the public interest will allow a disposal less than prosecution". He said that if a case involved only a small amount of money or happened years ago, it was not likely that there would be prosecution. He said that the rights of the accrued to a fair trial were vital and would always be respected, and the interests of the victim were an important factor in determining the balance of the public interest and should be taken into account. He considered that it was unnecessary to have a specific guideline for section 10 cases. Moreover, any specific guideline would have to be an arbitrary figure or percentage, which might not prove satisfactory in practice. LA added that any amount prescribed might have the undesirable effect of being taken as the maximum amount allowed for corruption by a Crown servant. As a matter of principle, Mr ALLCOCK reminded Members that corruption itself was an offence, irrespective of the amount. Mrs Selina CHOW agreed that the general guidelines were sufficient and allowed flexibility and there was no need to set down specific and restrictive guideline for section 10 cases. To enable further consideration of the matter, LA agreed to the Chairman’s request to provide Members with cases which had quoted abuse of process of prosecution as a ground of defense.

LA

Presumption for section 10(1)(a)

13. Mr ALLCOCK said the Administration had considered Members’ question as to whether a presumption was needed in respect of section 10(1)(a) of POBO, given that one existed in respect of section 10(1)(b) and had concluded that there was no need for it since there could not be a fair presumption.

Section 30 of POBO

14. Members noted that the Administration had explained and elaborated on the aims and purposes of section 30 of POBO (vide Annex 5 of the letter dated 11 January 1996) and had pointed out that if Miss LOH’s proposed amendments were passed, the section would be deprived of most of its utility and that some activities (as spelled out in paragraph 22 of the letter) would no longer be offences. Miss LOH thanked the Administration for providing the information and said that she would prepare a discussion paper for the next meeting.

Miss LOH

Discussion Papers submitted to the ICAC Review Committee

15. The Chairman requested the Administration to provide the Bills Committee with the discussion papers of the ICAC Review Committee, so that it could be assured that the Bill represented a comprehensive review of the powers of the ICAC and had fully considered all points of interests from all quarters and that Legislators could defend and support it in the period ahead. Mr ALLCOCK expressed the concern that this request could lead to the review being started over again and would mean prolonged and duplicating efforts. That was why he had suggested to Members in the first meeting to take the recommendations of the ICAC Review Committee as the basis of discussion. LA remarked that it was in order for the Chairman to request for relevant background papers to understand the context of the amending Bill. The question of whether any specific proposed amendment was relevant to the bill was, however, a separate issue. Miss Christine LOH said that the discussion papers consisted of the ICAC’s recommendations, the Administration’s supplementary considerations and the Legal Advisers’ (to the Review Committee) opinions and would enable Members to have a better understanding of the Bill. Mr ALLCOCK agreed to consider the request.

Admin

Date of next meeting

16. The next meeting would be held on Thursday, 18 January 1996 at 8:30 a.m..

[Post-meeting note: At the instruction of the Chairman, the next meeting has been re-scheduled for Thursday, 25 January 1996 at 8:30 a.m..]

17. The meeting ended at 10:45 a.m.

LegCo Secretariat
24 January 1996