23 December, 2012

 

Legal News & Analysis – Asia Pacific – Hong Kong – Dispute Resolution

 

The issue before the Court of Final Appeal
 

A v The Commissioner of the ICAC, FACC 9/2011 concerned a key feature of the ICAC's investigative powers, namely, notices issued under s.14 of the POBO. The question before the Court of Final Appeal was whether a person served with a s.14 notice ("Notice") could lawfully invoke privilege against self-incrimination to justify refusing to comply with it.

 

Under section 14 of the POBO, the ICAC's Commissioner ("the Commissioner") or investigating officer may (for the purpose of an investigation into or proceedings related to a suspected offence under the POBO), apply ex parte to the Court of First Instance, for an order authorizing the Commissioner to serve a Notice on a person, requiring him to provide specified information and/or documents.

 

The Facts

 

The appellant A, had been served with a Notice under s.14(1)(d) of the POBO. A Notice under that sub-section can be authorized by the Court where it is satisfied that there are reasonable grounds for suspecting that an offence under the POBO has been committed, and the Commissioner believes that the person to be served is acquainted with any facts relevant to an investigation or proceedings. The Notice requires the recipient to furnish the investigating officer with all information in his possession or to which he may reasonably have access, in respect of such matters specified in the Notice, appear before the investigating officer to answer any questions or produce documents in his possession or under his control or to which he may reasonably have access.

 

The Notice served on A stated that an investigation was being carried out into offences suspected to have been committed by a named person, contrary to the POBO (conspiracy to offer advantages to a named public officer, contrary to s.9(2) of the POBO and s.159A of the Crimes Ordinance, Cap.200) and that the Commissioner believed A to have information relevant to the investigation. The Notice required A to appear before a named ICAC investigating officer ("the named investigator") at ICAC headquarters to answer orally, on oath or affirmation, questions relevant to the investigation. The Notice also stated that A was required, on demand by the named investigator, to furnish such documents as the investigator considered relevant to the investigation.

 

The Notice also specified the period within which A had to comply with its terms and that failure or neglect to comply, without reasonable excuse, was an offence under s.14(4) and that the wilful making of any false statement in answer to the Notice was an offence under s.14(5), with liability to a fine of HK$20,000 and one year's imprisonment.

 

A issued a summons under the Rules of High Court, Order 32, rule 6 and Order 119 and under the Court's inherent jurisdiction seeking a declaration that he was entitled to assert privilege against self-incrimination, whether at common law and/or under Articles 10 and 11 of the Hong Kong Bill of Rights and/or Article 39 of the Basic Law, as a lawful basis for resisting disclosure of any document(s), information and/or any other material(s) sought. Further or alternatively, A sought an Order setting aside the Notice and Court's Order on the basis that sections 14(1), 14(4), and/or 20 of the POBO violate Articles 10 and 11 of the Hong Kong Bill of Rights and Article 39 of the Basic Law, by depriving a respondent of privilege against self-incrimination.

 

A's summons was dismissed. The Appeal Committee granted A leave to appeal to the Court of Final Appeal by reason of the points of law of great general or public importance involved.

 

The Court of Final Appeal's Ruling

 

On 13 November 2012, the Court of Final Appeal dismissed A's appeal and ruled as follows:

 

  1. Section 14(4) of the POBO states that:
    "Every person on whom a notice under subsection (1) is served shall, notwithstanding the provisions of other Ordinance or rule of law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance (Cap.112), comply with the terms of that notice…..and any person on whom such a notice has been served, who, without reasonable excuse, neglects or fails so to comply shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year."
    The language of section 14(4) was clear enough when taken in its historical context of the advent of the ICAC as a vital body vested with extraordinary investigative powers. Just about every person in Hong Kong knew that the choice had been made to invest the ICAC with investigative powers that impacted upon fundamental rights. The intent to be imputed to the legislature, from the words it used and context in which those words were used, was an intent to abrogate privilege against self-incrimination in regard to compliance with s.14 notices.

     
  2. The obligation to provide such information is imposed"notwithstanding the provisions of other Ordinance or rule of law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance (Cap 112)." In this context, a rule of law "to the contrary" can only mean a rule of law which would otherwise contradict or relieve the subject of the obligation imposed by section 14(4) to comply with the terms of the Notice. The common law privilege against self-incrimination is obviously such a rule of law. It is a general immunity which every person has against being compelled to answer questions which may incriminate them. It followed that in compelling compliance with a section 14 Notice, notwithstanding other Ordinances or rules of law to the contrary, section 14(4) necessarily removed the immunity from answering questions, which the privilege against self-incrimination would otherwise provide. Section 14(4) makes it clear that its exclusion of contrary rules of law is general – therefore encompassing the privilege against self-incrimination – by providing as its "only"exception, section 4 of the Inland Revenue Ordinance. 
     
  3. Such abrogation was not unconstitutional.
     
  4. Where an Ordinance abrogates the privilege against self-incrimination, the person concerned is required to provide the information sought even though it may have a tendency to incriminate him if such information should later be used against him as a defendant in criminal proceedings. However, the legislative objective of such abrogating provisions is generally to facilitate investigation of suspected criminal or other prohibited conduct and not to enable self-incriminating evidence to be collected by compulsory means for use in criminal proceedings against the subject of the compulsion. Accordingly, legislation which excludes the privilege against self-incrimination usually also regulates the admissibility and use that can be made of the compelled information i.e. prohibits/restricts "direct use" i.e. use of the compelled answers in criminal proceedings as evidence against the person from whom they were extracted. Such prohibition therefore excludes potentially self-incriminating evidence form being used in court.
     
  5. Such statutes generally do not seek to prohibit and do not have the effect of prohibiting "derivative use" of the compelled answers. Thus, there is usually no prohibition against using the compulsorily obtained answers to develop new lines of inquiry; to identify sources of independent evidence; to assist in formulating applications for search warrants; and so forth. Such derivative use of the compelled answers does not raise any issue concerning self-incrimination or admissibility since it is use which does not involve any attempt to adduce the answers in evidence in any curial setting. The law has always drawn a distinction between (inadmissible) compelled answers themselves and (admissible) derivative evidence independently developed from indications contained in the compelled answers. Against that background, section 20(a) of the POBO should be construed. The question was whether it operated as a provision which restricts the admissibility and use that can be made of the compulsorily obtained material.
     
  6. Section 20(a) provides:
    "In any proceedings against a person for an offence under this Ordinance – (a) if such person tenders himself as a witness then any statutory declaration or statement in writing furnished by him in compliance or purported compliance with the terms of a notice served on him under section 14 shall be regarded as a former statement made by him relative to the subject-matter of the proceedings and sections 13 and 14 of the Evidence Ordinance (Cap 8) shall apply with respect to that witness;…"
    Section 20(a) imposes a general direct use prohibition in respect of all information provided by the subject in compliance with a section 14 Notice, subject to the exception that direct use may be made of a statutory declaration or statement in writing obtained pursuant to section 14(1)(a), (b) or (c) for the limited purposes specified in section 20(a). There is a complete direct use prohibition in relation to answers given in response to a notice issued under section 14(1)(d). Thus A was not at risk of his responses given in compliance with the Notice being used directly as evidence to incriminate him if he should ever become a defendant in a criminal trial. This was because the direct use which continues to be permitted under section 20(a) is confined to the use of any "statutory declaration or statement in writing furnished by [the subject of the notice] in compliance or purported compliance with the terms of the notice served on him under section 14…" Section 14(1)(d) does not mention and is not concerned with notices requiring the subject to furnish statutory declarations or statements in writing.

 

 

 

 

 

 

For further information, please contact:

 

Joseph Kwan, Partner, Deacons

joseph.kwan@deacons.com.hk

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