Minutes of the Twenty-first Meeting of the Bills Committee on
the Prevention of Bribery (Miscellaneous Provisions)(No.2) Bill 1995

Meeting with the Administration

Section 30 (Offence to disclose identity, etc. of persons being investigated) of the Prevention of Bribery Ordinance (POBO)

"Public interest" defence

Hon Christine LOH had prepared a paper which identified circumstances as ‘public interest’ defences under section 30 of POBO. The paper was tabled at the meeting and subsequently issued to absent members vide LegCo Paper No. CB(2) 1593/95-96.

2. Mr R Allcock said that the Administration welcomed the move. As a preliminary observation, he said that the Administration could accept the specified circumstances in para. 8(a) and (c) of the paper as defences, provided that they were actually either unlawful activity or serious threat and not purely suspicion or allegation. Miss Christine LOH then asked and Mr Allcock responded that under the ordinary principle of criminal evidence, the defendant had to establish the defence on the balance of probability. In this regard, Legal Adviser advised that the legal implication was that the set of circumstances which could be relied upon in practice was very limited. Legal Adviser asked and Mr Allcock confirmed that the Administration would not support introduction of the test of "reasonable cause to believe" because the threshold was too low and the test could be subject to manipulation. Mr Albert HO remained unconvinced and said that it was an objective test for the court to be satisfied that the defendant had the reasonable cause to believe. As regards para. 8(b), Mr Allcock pointed out that corruption offences were mostly related to public officials who performed public functions. Hence, this investigation presumably would affect the discharge of a public function by any person directly and seriously. Such a defence would defeat the purpose of the section. The Chairman and Mr Eric LI also expressed reservation on the specified circumstance in para. 8(b), since the meaning of public function could be very broad.

3. In response to members’ concern about the possible undue influence of section 30 on media reporting, Mr Allcock pointed out that (a) section 30 would only apply to persons under investigation; (b) section 30 would not prevent reporting relating to a reporter’s own investigation; and (c) the ambit of section 30 as far as para. 8(b) was concerned was very narrow since it would only apply when an investigation was taking place, according to the draft Commission Stage amendments (LegCo Paper No. CB(2) 1568/95-96 referred).

4. Mrs Selina CHOW queried whether specified circumstances of public interest could be exhaustive. She worried that investigation would be jeopardised if the specified circumstances were too broad. She pointed out that the test of reasonable excuse in the existing provisions might have already covered all the specified circumstances in para. 8 and she asked if a discretion should be left to the court. Legal Adviser then advised the meeting that the element of public interest had never been regarded by the court as a reasonable excuse although it did not mean that it should not be as such. If it was a policy view to inject the element of public interest, it had to be done specifically. Miss Christine LOH added that her proposed amendments were to stipulate guidelines to explain the criteria of public interest and they were not going to restrict the traditional interpretation of reasonable excuse.

5. Mr Albert HO queried why public order, public morality and liberty of other individuals which had been enshrined in international covenants were not included in para. 8(c). Legal Adviser advised that the Bills Committee could consider including other elements of public interest as necessary. The Chairman was of the view that neglect in performance of duty in para. 8(a) should be specified as serious negligence. He also remarked that disclosure should only be allowed in respect of unlawful activity. In light of members’ views expressed, Mr Allcock undertook to prepare relevant draft CSAs for further discussion at the next meeting.

Adm

Independent Commission Against Corruption’s proposed amendment

6. At the invitation of the Chairman, Legal Adviser took members through his research into the records of the legislative intent of section 30. Members noted that there had been no focused debate about the intent of section 30 at the time of the legislation. Although Mr Allcock agreed with the finding that it had not been spelt out specifically in these legislative documents that section 30 was to cover general investigation, he urged members to address the policy issue as to whether it was justified to protect general investigations in the light of the policy behind section 30 and its prime purpose to protect integrity of investigation.

7. Mrs Selina CHOW inferred from these legislative documents that section 30 applied only to disclosure of suspect-related investigations. She remarked that any change to apply section 30 to general investigations would mean widening the control imposed by section 30. Mr C J Kershaw reiterated that the ICAC’s proposed amendment was to reinstate ICAC’s previous understanding of the provision. The Chairman suggested and Mr LI Ming-chak agreed to provide written justifications for members’ further consideration.

ICAC

Section 8(2) (Appointment of officers) of Independent Commission Against Corruption Ordinance

8. Mr Andrew CHENG reiterated that he would accept revising his proposal such that the Governor would hold the ultimate authority to make the decision on appeal, along the recommendation of an independent appeal body. Mr Allcock maintained that the Administration would not support Mr CHENG’s proposal because it would be a breach of constitutional arrangement to transfer the appeal decision power from the Governor to another body. In response to Mr CHENG’s enquiry, Mr Allcock said that it was possible for the Governor to refer the case back to the Advisory Committee on Corruption (ACOC) for advice if a new point was raised on appeal and there was no need for statutory provision to such an effect. The Chairman suggested that Mr CHENG could present his proposed amendment to section 8(2) at the next meeting.

Mr Andrew CHENG

Section 13 (Special powers of investigation) of POBO

9. The Chairman informed the meeting that the Administration had agreed that a distinction should be made between requirements imposed under the section directed at suspects and those directed at third parties, and court control would be imposed only over requirements directed at a suspect. Mr Allcock agreed to provide draft CSAs for members’ consideration.

Adm

Date of next meeting

10. The next meeting would be held on Friday, 14 June 1996 at 10:45a.m. to consider draft CSAs and to continue discussion with the Administration.

11. There being no other business, the meeting ended at 10:40 a.m..

LegCo Secretariat
6 August 1996