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

Meeting with the Administration

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

Mr Andrew CHENG informed the meeting that after careful consideration, he agreed not to pursue the proposal for an independent appeal mechanism in respect of dismissal of ICAC officers at this stage. However, he maintained that the future Chief Executive should consult the Advisory Committee on Corruption on appeals in respect of the dismissal of officers of directorate rank.

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

2. Members noted the letter dated 13 June 1996 from the Hong Kong Journalists Association on section 30 of POBO which had been issued vide LegCo Paper No. CB(2) 1610/95-96.

"Public interest" defence

3. Members noted the letter dated 13 June 1996 from Deputy Solicitor General attaching a seventh draft of the Administration’s Committee Stage amendments (CSAs). At the invitation of the Chairman, Mr R Allcock drew members’ attention to the draft amendments to section 30(3), in response to the discussion at the last meeting, which provided that a person had a reasonable excuse to make a disclosure under two specified circumstances. He also highlighted paragraphs 9 & 10 of the letter which set out why the Administration did not support the proposal of extending subsection (3) to cover disclosures that revealed a serious threat to national security, public order, public morals, or the rights and freedom of others.

4. The Chairman referred to the proposed subsection (3)(a) and remarked that the phrase "abuse of power or serious neglect of duty" would be more appropriate than "serious abuse or neglect of duty". Mr Allcock pointed out that the connotation of the word "abuse" had included a certain degree of seriousness. Mr J D Scott advised that, for the sake of consistency, the phrase was the same formula used in section 11(e) of ICACO. Legal Adviser however pointed out that "serious abuse of duty" might not involve the exercise of a power and the context of section 30 might justify the inclusion of the word "power". The Chairman further asked and Legal Adviser said that the word "abuse" was more proactive than "neglect". In this regard, Miss Christine LOH suggested that the formula of "abuse of power or serious neglect of duty" could be used. Mr Allcock said that the formula was acceptable to the Administration and he undertook to revise the CSAs accordingly.

Adm

5. Mr Albert HO queried why the factors of national security and public order were not included in subsection (3)(b). He held the view that, apart from investigation into and prosecution of cases involving threats to national security and public order, the media could play an important monitoring role in protecting the right to know of the public. Mr Allcock clarified that the media would not be prevented from reporting on problems relating to national security and public order. However, the Administration considered that disclosure should not be permissible if it would prejudice the investigation since it would be against the public interest. In this regard, Mrs Selina CHOW opined that the Administration’s view was acceptable if the scope of section 30 was as that held by the Privy Council. Yet, Mr HO remarked that reporting might unavoidably reveal a specific investigation. He added that a threat to national security or public order, as a threat to the health or safety of the public, would also involve a direct threat to individuals. Mr Allcock argued that reference to safety of the public would include the factors of national security and public order. After discussion, majority of members present agreed that the Bills Committee would move a CSA to include the factors of national security and public order.

(Post-meeting notes : The Administration subsequently agreed to extend subsection (3)(b) to cover a serious threat to public order or to the security of Hong Kong. Members therefore decided that it would not move a CSA to such an effect.)

Chairman

6. In response to the Chairman’s enquiry, Mr Allcock confirmed that the drafting amendments to section 30 in para. 11 of the letter would not affect the Privy Council judgement in respect of the scope of section 30.

Amendments proposed by the Administration

7. Members noted the further note dated 12 June 1996 prepared by the office of Hon Christine LOH on section 30 which proposed modifications to the Administration’s suggested amendments at the meeting on 10 June 1996 (LegCo Paper No. CB(2) 1552/95-96 referred). The note had been issued to members vide LegCo Paper No. CB(2) 1603/95-96. Mr Allcock said that the Administration did not agree to add to subsection (2) points (c), (e) and (f) in paragraph 1 of the note on the grounds of protecting the reputation of the suspect. Mr Kershaw cautioned that the persons concerned might not have been arrested or they could apply for return of their travel documents under these circumstances. Miss Christine LOH then asked and Mr Allcock pointed out that proposed section 17A of POBO empowered a magistrate to order a person who was only reasonably suspected to have been committed an offence under the Ordinance to surrender his travel document, the threshold of which was much lower than that for a decision to arrest. Mr Kershaw supplemented that if point (c) was added, the provision would in practice pressurise a suspect to make a voluntary disclosure instead of being required to disclose by notice issued by the ICAC Commissioner under section 14. The Chairman said that he needed more time to consider the matter in the light that such a side effect might also apply to points (e) and (f). Miss LOH indicated that she was not convinced by the argument presented by the Administration. Members noted that Miss LOH would move CSAs along the lines of the suggested modifications in paragraphs 1 and 2 of the note. After detailed deliberation, the Bills Committee agreed not to make decision to support or not to support any set of amendments, whether proposed by Miss LOH or by the Administration.

"Likely to prejudice" test

8. Miss Christine LOH explained that the proposed test of likelihood to prejudice an investigation, as set out in her further note dated 12 June 1996, was a less preferred alternative to her proposed modifications to the Administration’s amendments. Mr Allcock responded that the proposed formulation remained unacceptable to the Administration although her proposed subsection (2)(2) was an attempt to address the difficulty to prove the linkage between tipping off a suspect and the likelihood to prejudice an investigation. He maintained that it was difficult to establish beyond reasonable doubt the causal link between the disclosure and the failure of an investigation. Mr Kershaw supplemented that it was difficult to prove that (a) the information was not previously known to the suspect in her proposed subsection (2)(2); and (b) there had been prejudice to an investigation unless the proof of the committed offence was established. Mr Albert HO insisted that the "likely to prejudice" test was an objective one which existed in other common law jurisdictions. It would be up to the court to draw common sense inferences as to whether disclosure would cause substantial prejudices. Mr Allcock reminded members that the "likely to cause prejudice" test did not stand alone and it was coupled with (a) the need to show that substantial prejudice had been caused and (b) the defence that the person who made the disclosure did not know or have reasonable cause to believe that the disclosure was likely to prejudice the investigation. In this regard, Mrs Selina CHOW said that she inclined not to support this alternative approach.

Independent Commission Against Corruption’s proposed amendment

9. Members noted the paper attached to the letter dated 14 June 1996 from the ICAC Commissioner which expressed concerns on the post-Ming Pao "reduced" section 30 of POBO (issued vide LegCo Paper No. CB(2) 1611/95-96). Mr C J Kershaw stressed that (a) a general investigation needed to remain covert and was equally vulnerable to being prejudiced by a disclosure as one in respect of an identified suspect; and (b) the "reduced" scope of section 30, as interpreted in the Privy Council judgement, was not practicable.

10. Miss Christine LOH asked and Mr Kershaw advised that reference to an investigation in section 30 would amount to opening of an investigation file. Mr Albert HO expressed concern that media reporting would be banned at such an early stage. Mrs Selina CHOW was of the view that the matter should be left to the court to decide, having regard to the existing provisions of section 30. After discussion, Mrs Selina CHOW said that the inclination of the Liberal Party was not to support the ICAC’s proposal to amend the section to include a general investigation and Mr Albert HO said that the Democratic Party would need time to consider it. Miss LOH also indicated that she would not support such an amendment. The Chairman therefore advised that it would be up to the Administration to decide whether or not to move CSAs in this regard.

Section 7 (Bribery in relation to auctions) of POBO

11. Members noted the letter dated 13 June 1996 from Deputy Solicitor General attaching a paper on which certain conduct in relation to public auctions amounted to offences, either under section 7 of POBO or under the common law relating to conspiracy to defraud.

Section 13(1) (Special powers of investigation) of POBO

12. At the invitation of the Chairman, Mr Allcock briefed members on the proposed amendments to be moved by the Administration in respect of section 13, which had been set out in his letter dated 13 June 1996. Members noted that the Administration agreed that a distinction should be made between requirements imposed under the section directed at suspects, and those directed at third parties (e.g. banks), in order to address members’ concern. The Administration would move CSAs to impose court control over requirements directed at a suspect so as to protect his right. Mr Allcock also informed members that references to safe-deposit boxes would be deleted and a requirement of reasonable cause to believe that documents to be produced were "likely to be relevant" for the purposes of an investigation would be introduced. In this connection, Legal Adviser advised that the proposed amendments in this respect were significant. The Bills Committee agreed to support the CSAs to be moved by the Administration in this respect.

Section 8(2) (Issue of summons to defendant and mode of service thereof) of the Magistrates Ordinance

13. The Bills Committee supported the proposed provision.

Draft Committee Stage amendments

14. Members agreed that the final draft CSAs would be sent to the Hong Kong Bar Association and the Law Society of Hong Kong for comments and the Clerk would circulate the comments received, if any, to all members of the House Committee for consideration.

Clerk

15. Members further noted that with the exception of CSAs relating to section 30, the Administration agreed to move all the CSAs including those initiated by members and supported by the Bills Committee as well as by the Administration itself.

Adm

Legislative Timetable

16. The Bills Committee recommended that the Bill should resume its Second Reading debate on 10 July 1996. In this regard, members noted that the Bills Committee would report to the House Committee on 28 June 1996 and the deadline for giving notice of CSAs was 1 July 1996. The Chairman further suggested and members agreed that the draft report to the House Committee would be circulated to members for comment on 24 June 1996 before issuing to members of the House Committee.

17. There being no other business, members agreed that the next meeting scheduled for 18 June 1996 would be cancelled.

18. The meeting ended at 1:35 p.m..

LegCo Secretariat
12 August 1996