Meeting with the Hong Kong Journalists Association

Members agreed that representatives of the AGC and ICAC should join the meeting, together with representatives of the Hong Kong Journalist Association (the Association).

2. Mr Cliff Bale briefed members on the submission from the Association which had been issued vide LegCo Paper No. CB(2) 1139/95-96 on 29 April 1996. Mr Kevin LAU pointed out that it had already been a compromise for the Association to support the proposal put forward by Hon Christine LOH to amend section 30 of the Prevention of Bribery Ordinance (POBO). The Association upheld the basic principle that reporters should not face criminal prosecution for carrying out their duties in the public interest.

"Public interest" defence

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3. Legal Adviser (LA) said that the Association's submission raised important legal policy issues. He pointed out that the examples given in the submission were public authorities being required to give regard to public interest in the exercise of judgement. He cautioned that the proposal of a "public interest" defence would transfer such requirement to a person, who was under the threat of criminal prosecution, which was unusual in the legal system. Mr LAU responded that after the enactment of the Bills of Right Ordinance (BOR), defendant might be able to invoke legal provisions and the Judiciary was required to adjudicate by balancing between whether the committed act had breached certain statutory provisions and whether it was in the public interest. In this regard, LA remarked that BOR might not be applicable to a provision of "public interest" defence.

4. LA further drew members' attention to the various definitions of "public interest" drawn up by the Press Complaints Commission in Britain in its code of practice for journalists as stated in the submission. He referred to one of the definitions, i.e., detecting or exposing crimes or serious misdemeanour and opined that it would be very difficult for the judge to apply to section 30 because, even as amended, its main rationale was that premature disclosure would likely hinder the detection of a POBO crime. Mr LAU took the view that it would be in the public interest for the media to disclose any wrongdoings by ICAC's officers in the course of investigation. In this regard, LA remarked that the example was a special case, and was an illustration of a possible legal policy conflict. Nevertheless, to allow the media to justify its act of exposing POBO crimes generally by "public interest" defence might clash with the final aim for a successful prosecution. Mr LAU argued that such a conflict was not uncommon as the judge had to determine whether to admit evidence which was obtained by unlawful means.

5. Mrs Selina CHOW referred to the example cited by Mr LAU and asked LA whether it could be covered by the existing provisions of section 30 which allowed disclosure of an investigation with lawful authority or reasonable excuse. LA replied that it might be the interpretation of some judges that the media should not be prosecuted if the act was to disclose illegal activities. He then quoted the ruling of the Court of Appeal for the Ming Pao case for members' reference. However, he cautioned that it was a not binding ruling. Mr LAU held the view that the scope of "reasonable excuse" was much more limited than that of "public interest" defence. He also queried whether the discretion in judging the public interest should be left to the Attorney General, instead of to the court. LA maintained that it was a reflection of the existing legal system for the Attorney General to make an assessment of public interest in his judgement whether to prosecute a person or not.

6. Mr Albert HO supported the proposal to add a "public interest" defence to section 30. He remarked that such a provision would put a heavier burden on the prosecution by requiring it to give sufficient evidence in court to enable the judge, having regard to prejudice caused to the investigation and the public interest, to decide whether a person should be convicted. Nevertheless, he reminded that "public interest" defence was not clearly defined and would need to be interpreted by the court in any particular case. Mr LAU pointed out that the meaning of "reasonable excuse" would not be any clearer than that of "public interest" in the eyes of the general public.

7. Miss Christine LOH sought the comment of the Association on an argument against "public interest" defence that it would be subject to interpretation of members of the public who sought to justify their actions. Mr LAU responded that "reasonable excuse" could mislead the general public as well. He added that the media should be self-disciplined and, if in doubt, legal advice would be sought.

8. Mr Allcock reiterated that reference to public interest would not be normal in the context of statutory criminal offences which had to be as precise as possible. In this regard, Miss Christine LOH opined that it could be argued that section 30 offences were not criminal in nature.

Substantial prejudice

9. Mr Bale then confirmed that it was the Association's stance that the prosecution should prove that disclosure had prejudiced or was likely to cause substantial prejudice to an investigation for a section 30 offence. Mr LAU then cited the Prevention of Terrorism (Temporary Provisions) Act 1989 in Britain to show that the prosecution had the statutory requirement to satisfy the test of "likely to prejudice the investigation" under extreme circumstances such as fighting against terrorists. With the agreement of the Chairman, Mr Allcock pointed out to the meeting that corruption investigation had a special need to maintain confidentiality. At the invitation of the Chairman, Mr Bale responded that the investigation normally would have already reached an advanced stage when the media had knowledge of the investigation.

10. The Chairman thanked representatives of the Association for attending the meeting and they then left the meeting.

Administration's proposal in respect of section 30 of POBO

11. Mr Allcock informed the meeting that the Administration would prepare to consider the following amendments:

(a) an amendment to section 30(1) such that section 30 would only apply to offences under Part II;

(b) an amendment to section 30(1) to narrow its application so that it would only be an offence for a person who knew or suspected that an investigation was taking place to made a disclosure; and

(c) an amendment to section 30(2) such that disclosure of the identity of any person being investigated would be allowed by the suspect himself or a third party with his consent.

12. Mrs Selina CHOW queried how the prosecution could prove that the person knew or suspected that an investigation was taking place. Mr Allcock explained that if there was no direct contact between the ICAC and such person, the court would have to draw inferences from the facts.

13. Mrs Selina CHOW further asked whether a disclosure without causing any prejudice to the investigation should be allowed in the light that the Administration had striven to resist any amendment to section 30 on the grounds of protecting the integrity of investigation and yet it agreed to concede at this stage. Mr Allcock responded that Miss Christine LOH's proposal of "likely to prejudice" did not stand alone because there were tests that the defendant knew or had reasonable grounds to suspect likely prejudice and that there had been substantial prejudices. He reiterated that ignorant disclosure could create a real risk of an investigation being prejudiced, even with good intention and bona fide belief that it would not.

14. Since the Administration seemed to adopt a more flexible approach, LA then asked the Administration to confirm whether a test of "likely to prejudice", as applied in the Drug Trafficking (Recovery of Proceeds) Ordinance, would be acceptable. Mr Allcock cautioned that element of protection of reputation had to be considered.

15. LA drew members' attention to the implication of the proposal to section 30(2) for on-going investigation involving more than one suspect. He cautioned that it might prejudice the integrity of investigation in the light that the suspect could alert the other joint suspect. Mr Allcock acknowledged that it might lead to deliberate tipping off by the suspect himself. However, under the circumstances listed in section 30(2), the investigation would have reached a mature stage.

Views of members

16. The Chairman welcomed the Administration to amend section 30 along the lines as put forward. As regards amendment to section 30(1), he considered it as an improvement. However, he took the view that the extent of the amendment was still not far enough.

17. Miss Christine LOH shared a similar view. She opined that the implication of the suggested amendment to section 30(2) was that suspect would probably disclose the investigation to others.

18. Mr Andrew CHENG was of the view that the proposals to amend section 30 by the Administration were not a real concession. He urged the Administration to consider the Association's submission seriously and said that he would tend to support the proposal from Hon Christine LOH.

19. Mr Eric LI said that elements of protection of reputation and of integrity of investigation should be balanced separately against the principle of freedom of expression. He tended to support relaxing the disclosure in favour of freedom of expression as against protection of reputation. LA pointed out that if it was an offence to make a disclosure which caused likely harm to reputation, proof of harm to reputation would be dependent on the outcome of the investigation. He urged the Administration to clarify whether it was a policy approach that a person's reputation must be protected irrespective of whether he was innocent or not, as subsequently proved. Mr Allcock responded that presumption of innocence should apply and the concern was about the reputation of a person at that particular time. LA then remarked that a reporter might be prosecuted for unlawful disclosure of the identity of a person who was being investigated (which damaged his reputation) despite the fact that person was subsequently convicted of such crime.

20. Mrs Selina CHOW held the view that protection of reputation was important especially for investigation which might last for a long time. She referred to the existing provision of section 30(2) and queried whether the Commissioner of ICAC should have the sole discretion in deciding whether disclosure should be allowed or not. In this regard, she urged the Administration to clearly state its stance regarding the principle of protecting a person's reputation and to explain how it could be consistently reflected in its further proposal of amendment to section 30. Mr Allcock undertook to revert to members after further consideration.

Adm

21. The Chairman then asked the Administration to consider further its proposal to amend section 30, having regard to views expressed at the meeting.

Dates of next meetings

22. The next meetings were scheduled as follows :

(a) Wednesday, 8 May 1996 at 8:30 a.m.; and

(b) Tuesday, 21 May 1996 at 8:30 a.m..

23. There being no other business, the meeting ended at 10:45 a.m..

LegCo Secretariat

21 May 1996