The layman might be confused by Mr Justice Conrad Seagroatt's decision to order the return by the ICAC of legal documents seized from the solicitors of convicted fraudster Ch'ng Po on the grounds that the search warrant related to matters more properly the domain of the police. To borrow a phrase much used elsewhere: what does it matter if the cat is black or white, so long as it catches mice? The truth, at least in judicial matters, is that it does matter. The fight against corruption is, inevitably, a battle fought more with the cloak and the dagger than the conventional weapons of police work.
The nature of the crime - often based, perversely enough, on personal trust - frequently forces investigators to work on hearsay and flimsy evidence. And in Hong Kong, at least, the Independent Commission Against Corruption has been given Draconian and far reaching powers to deal with its difficulties. Even after the recent reforms and court rulings restricting its powers, it has retained some privileges which continue to be denied to the police.
Not the least of these is reversed onus, which throws the burden of proof on the defendant. In a corruption case, a defendant is sometimes guilty unless he can prove himself innocent on a balance of probabilities. As a result, the ICAC is often operating in the greyest areas of the Bill of Rights - and some of its staff may become rather too accustomed to doing so.
It is, in part, to compensate for these sweeping powers, that the ICAC's area of operations is so carefully circumscribed. Its strong medicine is designed to help it combat a particularly dangerous and insidious cancer at the heart of society. But it must stick to the battle against corruption. It must not be tempted to start using its cancer-drugs as if they were broad-spectrum antibiotics to be employed against anything from petty larceny to contempt of court or attempts to pervert the course of justice.
The case before the High Court yesterday did appear to involve an allegation of attempted bribery, as the ICAC argued. However, it did not fit the definition of Section 10 of the Prevention of Bribery Ordinance. A conspiracy to pervert the course of justice is a crime of a different kind, although no less serious. It must be dealt with by an organisation accustomed to greater public scrutiny. The police, for all its failings, is more accountable and transparent than the ICAC. Despite the natural, though sometimes damaging, rivalry between the two, the ICAC should bite the bullet and hand the investigation over to the police. If a crime has been committed, the perpetrators should not only be brought to justice, but brought there by the authority properly empowered to do it.
