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

Confirmation of Minutes of the first meeting

The minutes of the first meeting held on 26 October 1995, issued to Members vide LegCo Paper No. HB74/95-96, were confirmed without amendment.

Internal discussion

2. Members noted that 15 submissions had been received as at 20 November 1995. These submissions with the summary table prepared by the Secretariat were tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. HB 194/95-96. New submissions and the updated summary table would be tabled at subsequent meetings.

Clerk

3. Since the Bill was to implement the recommendations of the ICAC Review Committee which must have discussed the general principles and merits of relevant issues, Members agreed with the Chairman that the Bills Committee could proceed to scrutinise the proposed legislative changes.

Meeting with the Administration

Briefing by the Administration

4. The Chairman welcomed representatives of the Administration and ICAC for attending the meeting and invited the Administration to give a brief introduction on the Bill.

5. Mr R ALLCOCK said that the Bill was to make amendments to existing legislation in order to implement the recommendations of the ICAC Review Committee. The amendments could be grouped into three categories : (i) introduction of court control : by which certain powers at present vested in the Commissioner, ICAC were to be transferred to the courts ; (ii) consistency with the Bill of Rights Ordinance (BRO) : amending existing legislation relating to the ICAC to ensure their consistency with the BRO ; & (iii) other amendments.

6. Mr ALLCOCK also provided Members with the following updates since the last meeting of the former Bills Committee :

1. the Attorney General’s Chambers (AGC) had agreed to the former Bills Committee’s request not to invoke section 25 (presumption of corruption in certain cases) of the Prevention of Bribery Ordinance (POBO) on the part of the prosecution before the proper enactment of the Bill ;
2. the Court of Appeal had recently ruled that section 30 (offence to disclose identity, etc. of persons being investigated) was consistent with the BRO; appeal against such judgement was to be made to the Privy Council; and
3. the authentic Chinese text of Independent Commission Against Corruption Ordinance (ICACO) was produced since the Bill was gazetted and there would be amendments to the Chinese version of Clauses 15 to 17 at the Committee Stage.

Adm

7. Mr ALLCOCK urged Members to accept the recommendations of the ICAC Review Committee, which had been the outcome of a long deliberation process, as the basis for the present legislative exercise and not to re-open issues which had already been studied by the Review Committee. In response, the Chairman agreed to start with the recommendations. However, other issues not covered by the recommendations, such as the standing of section 30, could be brought up for discussion, if deemed necessary. In this regard, the Chairman undertook to furnish the written submission of the Democratic Party, which had previously been submitted to the Governor and subsequently directed to the ICAC Review Committee, for the Administration’s reference.

Chairman

Deliberations on the Bill

8. Members agreed to scrutinize the Bill in the order of the recommendations as set out in paragraph 3 of the LegCo Brief issued by the AGC dated 16 October 1995 (Ref : AGC LP 372/00C). The ensuing deliberation is summarised in the following paragraphs.

Recommendation 11

(section 14. Power to obtain information)

9. Mr Albert HO asked why it should be an ex parte application and not an inter parte application to the High Court for an order to require a person to supply information. Representatives of the Administration and ICAC explained that they were concerned with due protection of information. Inter parte application might give prior warning to the suspect and might enable him to find out all the evidence against him that was being held by the ICAC during the hearing, and would seriously impede and prejudice an investigation at its early stage. There was comparable provision in the Organised and Serious Crimes Ordinance.

10. Mrs Selina CHOW agreed that prior warning should be avoided in order not to jeopardise investigation. Legal Adviser (LA) then highlighted that there was a provision which required the High Court to be satisfied on reasonable grounds that an offence had been committed before granting an order.

11. In response to the Chairman’s enquiry, LA and the Administration would check whether the Supreme Court Ordinance or the Rules of the Supreme Court provided an appeal system against an order made by a High Court judge in an ex parte application. Mr B E D de SPEVILLE also agreed to consider LA’s suggestion about whether there should be a provision for confidentiality since an application for court order could pose a risk to leakage of information and hence could jeopardise the reputation of an individual.

LA
Adm
Commission

12. In response to the Chairman’s question, representatives of the ICAC estimated that section 14 would be invoked not more than 50 times per year.

Recommendation 15

(section 16. Powers of search, and to obtain assistance

section 17. Further powers of search and seizure)

13. Representatives of the ICAC explained that the power of search was proposed to be deleted from section 16 and relocated in section 17 since practically speaking there was no difference between the test adopted for a written consent of the Commissioner in the existing section 16 (1)(b) and the test adopted for the warrant given by the Commissioner in section 17 with regard to search of premises. The Administration explained that the section heading to section 17 would need to be amended, but that this could be achieved editorially rather than by the Bill. Representatives of the ICAC also confirmed that the power to obtain assistance under section 16 would be from "any public servant" instead of from "any other person".

Adm

14. The Chairman asked whether the same criterion, i.e. "the court is satisfied" in section 14 should apply to section 17(1A) (to replace "appear to the court") and to section 17(1B) (to replace "appear to the Commissioner"). Mr Andrew CHENG remarked that the change might have an impact on the standard of proof required by a court for granting a search warrant. The Administration agreed to review the drafting.

Adm

15. LA asked why "court" in section 17 meant "a magistrate and the High Court". Representatives of the ICAC said they would apply to the High Court for search warrant for certain cases for the sake of confidentiality, whereas generally they would apply to the magistrate for search warrant. In response to the Chairman’s enquiry, representatives of the ICAC said that the number of warrants issued would be around 500 - 600 per year. Exact figures for the past years would be provided for Members’ reference.

Commission

Recommendation 26

(section 14C. Restraining orders.)

16. Members noted that section 14C would incorporate sections 14A and 14B which would be repealed. No distinction would be made between the property held by a suspect or the accused himself and the property held on his behalf by a third party. In addition, the power to issue a restraining order would be transferred from the Commissioner, ICAC to the High Court. In this regard, the Chairman urged ICAC to discuss security arrangement with the Judiciary to avoid any leakage of information.

Commission

17. The Chairman asked whether the word "control" in section 14C (1)(a) could adequately cover all means to control property in a modern economy. He suggested the Administration to make reference to similar sections under the Organised and Serious Crime Ordinance and the Drug Trafficking (Recovery of Proceeds) Ordinance.

Adm

18. Mr Albert HO asked and the Administration answered that section 14D (Variation and revocation of restraining orders) provided the necessary channel for any aggrieved party to appeal against a restraining order. The Chairman asked and representatives of the ICAC estimated that section 14C would be invoked less than 10 times per year.

19. The Chairman urged the Administration to consider possible reciprocal arrangements to serve restraining order overseas although this might be outside the scope of the present legislative exercise. Mr B E D de SPEVILLE said that although it would not be possible to build in an provision in the legislation to bind other jurisdictions, there could be a receiving provision in the legislation to accept and to enforce restraining orders made by other jurisdictions. There was still deficiency in international arrangements. The issue of international anti-corruption co-operation was still under discussion and there was as yet no plan for such legislative changes.

20. LA asked and representatives of the ICAC explained that with the transfer of power from the Commissioner to the court, the power to enforce the restraint for a period of 12 months in the repealed section 14A(2)(b) was to be placed in the proposed section 14C (1)(a).

Next Step

21. Members agreed to invite representatives of the Inland Revenue Department and the Finance Branch to the next meeting to discuss possible implication of the Bill on tax confidentiality.

Date of next meeting

22. The next meeting would be held on Friday, 1 December 1995 at 8:30 a.m.

23. The meeting ended at 6:25 p.m.

LegCo Secretariat
7 December 1995
BRIBERY2

Clerk