Appeal court upholds ICAC's right to demand information

Graft-buster has a right to demand answers to its questions despite the risk for witnesses of self-incrimination, the top court rules

PUBLISHED : Wednesday, 14 November, 2012, 12:00am
UPDATED : Wednesday, 14 November, 2012, 4:44am

The Court of Final Appeal yesterday upheld the Independent Commission Against Corruption's power to compel people to provide information during an investigation.

It dismissed a claim that a person should not have to provide information that incriminates him- or herself in a crime.

A five-judge panel unanimously rejected an appeal against a lower court's refusal to set aside a request for information by the graft-buster.

"The use of the compelled declaration or statement … represents a fair balance between the public interest in realising the legitimate aim of suppressing corruption and protection of the fundamental rights of the individual," the judges wrote.

The ruling stemmed from an appeal lodged by a person, identified only as "A", who challenged 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, who was served a notice to answer questions by an ICAC officer, called this a fundamental right under common law. He also claimed that the law granted the graft-buster excessive and disproportionate power and should be struck down as unconstitutional.

Mr Justice Robert Ribeiro wrote that such power to compel information to be given, considering the narrow permitted use of the information, did not, as the appellant complained, undermine the fairness of a trial, nor weaken the presumption of innocence and was, therefore, constitutional.

The information compelled could not be used as evidence of guilt and the prosecution could only rely on it in cross-examination in court when the defendant, having chosen to testify in court, gave evidence inconsistent with the statement.

"[The appellant] would not be at any risk of those answers being used in evidence against him in … prosecution," the judge wrote.

Section 14 of the Protection of Bribery Ordinance 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 an 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 to 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 only exception is that people carrying out provisions under the Inland Revenue Ordinance can invoke official secrecy under Section 4 to withhold compliance, save in specific circumstances.

The top court ruled that it was the legislative intent that the privilege against self-incrimination was "abrogated", citing the clear wording of the ordinance that the ICAC was so empowered "notwithstanding the provisions of other ordinance or rule of law to the contrary".

"This court has recognised that it is rational to equip the ICAC with special investigative power for the legitimate purpose of suppressing corruption, which poses a serious danger to society," Ribeiro wrote.

The decision was made by 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 Ribeiro and Lord Justice Hoffmann.