Top court asked to rule on self-incriminating evidence

Suspect in ICAC probe asks top court to declare unconstitutional investigators' power to compel the furnishing of self-incriminating information

PUBLISHED : Tuesday, 16 October, 2012, 12:00am
UPDATED : Tuesday, 16 October, 2012, 3:14am

A suspect under investigation by graft-busters has asked judges to rule whether a person must legally provide information that could incriminate himself.

The Court of Final Appeal yesterday began hearing the litigant's appeal against the refusal of a lower court to set aside a request for information by the Independent Commission Against Corruption.

The person, identified only as "A" owing to sensitivity of the case, is challenging two sections of the Prevention of Bribery Ordinance on the grounds that a person should not be required to provide information that would lead to self-incrimination.

The appellant calls this a fundamental right under common law He also claims the law grants the graft-buster excessive and disproportionate power and should be struck down as unconstitutional.

Under challenge are Sections 14 and 20 of the Prevention of Bribery Ordinance.

Section 14 states that a court can authorise the ICAC to require a person suspected of bribery, or other persons familiar with the case, to provide information to assist the investigation. The person so required should or may have reasonable access to the information, which must be relevant to the investigation.

The person must list property belonging to him , his agents or trustees, or expenditure and liabilities incurred by him, his spouse, parents or children in the three years before the request.

The commission can also ask for details about money or property sent out of Hong Kong.

Any person failing to comply with the request is liable for a HK$20,000 fine and imprisonment for a year.

Section 20 of the ordinance states that the court and the prosecution can make an adverse comment on a person who fails to comply with the request.

"[The legislature] cannot possibly have contemplated overriding a constitutional right," Richard Gordon, a senior British barrister acting for "A", said.

"We find extremely odd the formulation of Section 14," he said, citing the Hong Kong Bill of Rights and legality - an old common-law principle - to support his argument.

Clare Montgomery, QC for the ICAC, admitted the provision invaded people's rights but said the investigative powers granted to the agency was not excessive given the difficulty in proving bribery cases.

"The public interest justifies the invasion," the QC said.

She also pointed to the clear wording in Section 14 that a person must comply with requests "notwithstanding the provisions of [any] other ordinance or rule of law to the contrary".

The only exception is that people carrying out provisions under the Inland Revenue Ordinance can invoke official secrecy under Section 4 to refuse compliance save in specific circumstances.

The case will continue today before Chief Justice of the Court of Final Appeal Mr Geoffrey Ma Tao-li, Mr Justice Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Ribeiro and Lord Hoffmann.