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Outstanding issues which might require CSAs
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The Administration had been given a list of outstanding issues which might require Committee Stage Amendments (CSAs) and they had responded to such issues. The list of issues and the Administration's reply dated 29 March 1996 had been issued to members vide LegCo Paper No. CB(2) 948/95-96 on 1 April 1996. The Chairman took Members through the Administration's reply. Members had raised further queries and the Administration responded accordingly. The gist of the ensuing deliberations is summarised in paragraphs 2-14.
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2. Mr Albert HO had suggested to introduce the power to summons the party involved if the presumption was invoked during a pre-trial process at a previous meeting. Members noted that the Administration did not support the proposed new power and the rationale had been elaborated in the note attached to the letter dated 29 March 1996. Mr Allcock highlighted that if in all the circumstances the defendant could not receive a fair trial, the court would order a stay of the proceedings on application by the defence counsel. To avoid a stay of the proceedings, the Prosecution could also avoid invoking the presumption if it might lead to unfairness. The Administration therefore took the view that there were sufficient remedies to prevent unfairness against a defendant in this regard. The Prosecutions Division of AGC had been consulted on the proposal and it did not support it.
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3. Mr Albert HO was disappointed at the Administration's reply. Although he agreed that the defendant could apply to the court if there was unfairness, he held the opinion that more statutory protection would be required. The Chairman then remarked that a third party was not necessarily sympathetic to the defendant even if he/she had been unco-operative towards the ICAC. The third party therefore would not answer any question without summons.
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4. Legal Adviser (LA) said that although Mr HO's proposal was unusual in criminal procedure, the nature of the presumption under section 10(2) itself was equally unusual. Mrs Selina CHOW asked how anti-corruption work would be affected if such power was given. Mr Allcock responded that although such power might not affect anti-corruption work, it was considered unnecessary to ensure a fair trial from a criminal procedural point of view.
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5. Members noted that a CSA was being prepared to institute safeguards in respect of access to tax-records. The Attorney General would also spell out this restriction in his speech when the Bill resumed Second Reading debate. The Administration would also prepare two versions of a CSA to protect the anonymity of innocent tax-payers for members' reference.
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6. Members noted that the Administration would move a CSA to section 14(1) so that the Commissioner of ICAC could not issue a notice to third parties under paragraphs (c) and (d) unless the court was satisfied that there were reasonable grounds for suspicion. In this connection, LA remarked that it was an appropriate way to proceed for the Administration to write to the Judiciary conveying members' concern about the need for confidentiality and possibly rules in this respect.
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7. The Administration concluded that the word " control" in section 14C(1)(a) could adequately cover all means to control property in a modern economy. Members raised no further point in this regard.
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8. Members noted that a CSA was being prepared such that the same criterion, i.e. "the court is satisfied" would apply to section 17(1A) and section 17(1B).
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9. The Administration had undertaken to consider two possible approaches : (a) Advisory Committee would be given executive power to make decision on appeal ; or (b) the Governor in Council would make decision on appeal whilst the Advisory Committee remained as an advisory body. However, the Administration decided not to support the proposals and the reasons had been elaborated in the letter dated 29 March 1996.
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10. LA cautioned that the amendment proposed by the Bill would modify the principle of natural justice that a person should not be a judge in his own cause. Given the statutory relationship of the Governor with the ICAC, it could be assumed that the Governor would be involved in the decision of dismissal in the early stage even though the Bill had not so stipulated. Mr Allcock reiterated that it would be inconsistent with the constitutional structure to enable some other body to veto decisions of the Governor given that (a) he was the most senior government official and was personally and politically accountable to the public for his own decision; and (b) ICAC was only subject to the control of the Governor constitutionally. He reminded the meeting that the Governor's decision would be subject to judicial review. In this regard, the Chairman held a different view. He pointed out that according to the Public Order Ordinance, the Commissioner of Police's decision not to grant a licence for public meeting would be subject to review by an Appeal Committee even though he was only subject to the control and direction of the Governor.
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11. Mrs Selina CHOW asked and Mr Allcock responded that judicial review would have three bases, namely, (a) illegality; (b) procedural impropriety; and (c) irrationality. If the reasons given for an officer's dismissal were proved to be incorrect, the decision might be considered as irrational. In this connection, LA pointed out that judicial review was not a review of the merits of the reasons for a decision. It was a review by the court to ensure that a person entrusted with a power had acted lawfully.
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12. Mrs Selina CHOW further asked whether it was acceptable to add a statutory provision to involve an advisory body, i.e., Operations Review Committee, during the process of deciding the dismissal in the light that it might not erode the ICAC Commssioner's power. Mr Allcock said that the ICAC Review Committee had recommended that the Commissioner should seek the advice of the Advisory Committee on Corruption (ACOC) before making a decision to terminate the appointment of the officer. Mr C J Kershaw confirmed that such recommendation had been implemented since September 1995.
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13. Mrs Selina CHOW held the view that an additional compulsory advisory level could be stipulated in section 8(2)(b) of the Bill such that the Commissioner was required to consult ACOC before terminating an appointment. As regards the feasibility to refer a non-statutory advisory body in the Bill, Mr J D Scott said that it would be possible to add a minor amendment to require the Governor to consult a statutory body, such as the Public Service Commission, so long as the advisory body could not overturn the decision by the Governor. Introduction of an appellant body with the power to overturn the Governor's decision would be contrary to the power of the Governor to remove and appoint an officer. Mr Allcock undertook to reconsider the issue and revert to members at a future meeting. In this connection, the Chairman reminded the meeting that Mr Andrew CHENG might consider moving an amendment to such an effect that there would be a statutory appeal channel.
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Adm
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14. The Administration concluded that it would be contrary to the public interest to prevent evidence of corruption discovered by virtue of section 13 from being used in a prosecution. However, Mr Allcock informed the meeting that a CSA was being prepared to circumscribe the power so that ICAC Commissioner could only have access to documents relating to the procedures of the public bodies. Members noted that the Chairman might consider moving an amendment to delete proposed subsections 13(2) (b) and (c). The Chairman suggested and members agreed to discuss the issue further when the relevant CSA from the Administration was available.
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Other outstanding issues
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POBO - Section 30. Offence to disclose identity, etc of persons being investigated
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15. Members noted the Administration's paper relating to legislation elsewhere that was similar to section 30, in response to members' request at a previous meeting, attached to the letter dated 15 April 1996 from the AGC (issued vide LegCo Paper No. CB(2) 1025/95-96).
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16. Members also noted a revised amendment to section 30 as proposed by Hon Christine LOH in consultation with Hon Albert HO, which had been issued vide LegCo Paper No. CB(2) 1021/95-96. At the invitation of the Chairman, Miss Christine LOH highlighted the revised text for members' reference. Mr Allcock then recapitulated the main arguments against the tests of "likely to cause prejudice to the investigation" and the "public interest" defence. As regards the additional test of "which is shown to have caused such prejudice", Mr Allcock pointed out that it would be very difficult, if not impossible, to prove the causal link between the publication of a story and the failure of an investigation. It would therefore cause enormous problems for the prosecution to establish the fact beyond reasonable doubt that prejudice had actually been caused by the disclosure. In this regard, Miss Christine LOH remarked that it clearly manifested the fact that section 30 aimed at a complete blackout.
17. LA cautioned that introduction of a "public interest" defence would be a significant step, as a principle of legislation, for the legislature. He further explained that such a defence, if enacted, would transfer the duty of deciding what was in the public interest to the court. The only criteria available to the court would be derived by the inference of the legislation. Mr Allcock added that such a defence would alter the normal position relating to statutory criminal offences by leaving it to the court to decide whether a certain act was an offence or not.
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18. Mrs Selina CHOW referred to the variation in section 30(1) where the phrase "under this Ordinance" had been changed to "under Part II of this Ordinance" in the revised amendment. She expressed worry that such variation might mean that section 30 would only apply to offences under Part II and could erode the effectiveness of investigation significantly. Miss Christine LOH explained that the purpose of such a narrow application of section 30 was to restrict its effect to corruption offences. One possible option could be to particularise all the various sections and to exclude those non-corruption offences.
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19. As regards the Administration's objection to the test of "likely to cause prejudice to the investigation", LA opined that, unlike the test of "intending to prejudice", even though a reporter had considered and concluded in his/her own opinion that a reporting was unlikely to cause any prejudice, it could still constitute an offence if the revised amendment was added to section 30. However, Mr Allcock held a different view by referring to the revised draft section 30(3)(a) proposed by Miss Christine LOH. He pointed out that it would be a defence to prove that he did not know or suspect that the disclosure was likely to cause substantial prejudice to the investigation. LA agreed that the interpretation could be subject to argument. In this regard, Mr Albert HO indicated that they might consider deleting the revised draft section 30(3)(a).
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20 Miss CHAN Yuen-han referred to section 30(2) and asked whether the circumstances prescribed would normally be in a mature stage of an investigation. Mr LI Ming-chak responded that an investigation was still on-going under the prescribed circumstances. However, the person being investigated would have already known the investigation and thus disclosure would not cause any prejudice to an investigation. Miss CHAN further asked and Mr Allcock said that the Administration did not rule out any amendment. Nevertheless, any amendment should adequately protect the reputation of a suspect and the integrity of an investigation. In this connection, members noted that Miss CHAN might consider moving an amendment allowing person(s) other than the Commissioner to disclose the identity of a person being investigated under the circumstances prescribed in section 30(2).
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21. Members noted the letter dated 15 April 1996 from the AGC, which set out the monitoring role of the Government regarding co-operation between the ICAC and the Police (issued vide LegCo Paper No. CB(2) 1023/95-96). The Chairman suggested and members agreed that the issue could be brought up for further discussion at the LegCo Panel on Security.
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Clerka
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POBO - Section 7. Bribery in relation to auctions
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22. Members noted the letter dated 15 April 1996 from the AGC, giving a legal opinion on a land auction case cited by Members at the meeting held on 19 March 1996 (issued vide LegCo Paper No. CB(2) 1028/95-96).
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23. Mr Albert HO referred to the cited case and wondered whether the agreement reached before the auction could amount to an agreement on the part of each party to offer advantage to other person. Mr Allcock remarked that it was arguable but it might be difficult to prove what happened. It might also be impossible to identify a particular person who solicited, offered or accepted an advantage. Mr Ambrose LAU took the view that it would be difficult to substantiate proof of the conspiracy to defraud since no victim could be identified. Mr Allcock pointed out that it could constitute an offence of fraud if the combination succeeded in the auction or the combination was the only bidder. He added that it would be difficult to give a clearcut answer and the interpretation would be subject to contest in court. The Chairman opined that an amendment might be required to provide that the behaviour described in the cited case would constitute an offence under section 7. In this connection, Mrs Selina CHOW cautioned that the issue should be carefully considered to avoid any unnecessary intrusion into genuine commercial activities or business agreements although she maintained that the behaviour described should constitute an offence. Mr Allcock supplemented that further legislative action was considered unnecessary on the grounds that (a) the conduct of public auctions had been reviewed by the Review Panel on Land Auction Arrangements and guidelines had been drawn up to ensure proper order; and (b) there were other common law offences related to auctions. In response to members' enquiry, LA undertook to study whether the section was legally effective or not, having regard to members' views expressed. The Administration was also asked to consider members' views.
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LA
Adm
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POBO- Section 13. Special powers of investigation
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24. Members noted the letter dated 13 April 1996 from the Commissioner of ICAC, elaborating its opposition to the proposed transfer of special powers under section 13 from the Commissioner to the courts. The Chairman informed the meeting that he might move an amendment to section 13 to give such an effect that special powers under section 13 would be transferred to the courts.
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25. Members noted the submission dated 28 March 1996 from the Law Society of Hong Kong on the Bill and the Administration's responses as set out in the letter dated 30 March 1996 from the AGC which had been issued vide LegCo Paper Nos. HB 931/95-96 and CB(2) 949/95-96 respectively.
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26. As regards proposed section 20, LA undertook to consider the legal drafting point as to whether it was the only interpretation, as suggested by the Administration, that "the person" referred to in subsection (b) was "the accused".
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LA
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27. The next meeting would be held on Tuesday, 30 April 1996 at 8:30 a.m. to study CSAs.
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28. There being no other business, the meeting ended at 10:45 a.m..
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LegCo Secretariat
7 May 1996
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Hon James TO Kun-sun (Chairman)
