27 December, 2012
In the recent decision of A -v- Commissioner of the Independent Commission Against Corruption (FACC No.9 of 2011), the Court of Final Appeal (CFA) confirmed the limitations on the ability of a party to claim the privilege against self-incrimination. In particular, the CFA held that this right was not available to a witness assisting in an anti-corruption investigation against another party.
This article considers the impact of the CFA decision, and the practical points to consider for individuals in receipt of a request to assist in an ICAC investigation.
A. What is the privilege against self-incrimination?
In legal proceedings, a person may refuse to make any oral statement or produce any document which might expose him to criminal prosecution or proceedings for the recovery of a penalty. Where this privilege is claimed, the Court must be satisfied on the facts and the nature of the evidence which the witness is called to give that there is a real and appreciable danger, and not a mere possibility, of self-incrimination.
B. When can’t it be invoked?
The right to invoke the privilege against self-incrimination is not absolute. As the CFA found in this case, although generally seen as a fundamental right, in fact the ability to rely on privilege against self-incrimination can be restricted by express words or necessary implication. In the context of notices issued under section 14(1)(d) of the Prevention of Bribery Ordinance (POBO) (ie. notices served on a non-suspect requiring him to answer orally, and on oath, questions and to provide any documents which the investigator may consider relevant to the investigation), privilege against self-incrimination is not available. That said, whilst privilege against self-incrimination may not be available, the information subsequently obtained under section 14(1)(d) POBO is subject to limited use, namely derivative use to develop new lines of inquiry, to identify sources of independent evidence, and to assist in formulating applications for search warrants.
C. Practical points
The POBO gives the ICAC broad powers of investigation. Amongst these is the power, subject to obtaining an ex-parte order from the Court of First Instance, to compulsorily obtain information on notice from suspects under investigation (section 14(1)(a) and (b)), from any person other than a suspect (section 14(1)(c) and (d)), from those in charge of public bodies (section 14(1)(e)) and from the manager of any bank (section 14(1)(f)). A party who is asked to assist in an ICAC investigation against another party will typically be served with a Notice under section 14(1)(c) to (f) POBO. Under section 14(4) POBO, it is an offence to fail, without reasonable excuse, to comply with such a Notice. The matter before the CFA related to a request pursuant to
a section 14(1)(d) Notice.
What should a person do upon being served with a section 14(1)(d) Notice?
It is important that a recipient of any Notice under section 14(1)(d) complies with its terms promptly. Upon receipt of the Notice, the recipient is well advised to seek legal advice in order to ensure full compliance and also to protect his position generally. The scope and ambit of the Notice should of course be reviewed at the outset to determine what, if any, issues may arise. These may include (among other things) whether the Notice purports to request production of documents and/or information that is covered by legal professional privilege (LPP – as to which see further below) and whether the recipient does, in fact, have available the information requested.
Consideration should also be given as to whether there is any scope for negotiating the ambit of the request (although frequently this is not possible), and/or the timetable for compliance (in particular where voluminous documents are requested).
Is LPP available to a non-suspect served with a Notice under section 14(1)(d) POBO?
As stated above, a party who is not the suspect in an ICAC investigation cannot claim privilege against self-incrimination to avoid a request for information made under section 14(1)(d) POBO and will be required to answer all questions and provide all relevant information, even if that tends to incriminate him, subject to the limited use to which such information can be put. However, a question arises as to whether section 14(4) POBO acts as any form of bar to reliance by the recipient of a Notice on LPP. In this regard, the CFA commented that section 14(4) POBO’s broad reach is subject to the limit expressed in section 15 POBO, which provides that LPP is preserved in the case of disclosure by legal advisers of privileged information. However, the CFA did not specifically address the status of LPP claimed by a lay recipient. Whilst it remains to be seen how the CFA would approach such a scenario in a future case, it is arguable, based on the reasoning of the CFA, that non-suspects in receipt of a section 14(1)(d) Notice will not be able to use LPP to avoid a request for information (unless they are legal advisers protected by section 15 POBO in certain circumstances). In view of this, “lay” recipients of section 14(1)(d) Notices should continue to take steps to preserve LPP in relation to communications with their legal representatives, and those who have sought legal advice in relation to the particular subject of investigation might consider minimising the number of privileged documents they retain (which can be kept with their legal adviser) so that the ICAC has less opportunity to compel their production.
D. CFA’S decision – the detail
- The appellant was served with a section 14(1)(d) Notice requiring him to appear before an ICAC investigating officer to answer orally, on oath or affirmation, questions relevant to the investigation as well as providing documents in his possession, under his control or to which he may reasonably have access (not being documents readily available to the public) which the investigating officer considered to be relevant to the investigation.
- The appellant sought a declaration that he was entitled to assert privilege against self-incrimination, and for an Order that the section 14(1)(d) Notice be set aside on the basis that the Notice was unconstitutional under the Hong Kong Bill of Rights and Basic Law as, in the appellant’s view, section 20 POBO permits direct use of answers compelled under section 14 POBO in criminal proceedings which may be brought against a non-suspect in receipt of such a notice.
- The Court of First Instance dismissed the application. The appellant appealed directly to the CFA.
In dismissing the appeal, the CFA held that:
- The privilege against self-incrimination was not absolute and could be restricted by express words in, or by necessary implication arising from, legislation.
- Section 14(4) POBO clearly abrogated the privilege against self-incrimination with respect to compliance with section 14(1)(d) Notices; and such abrogation was constitutional.
- Section 20 POBO sets out the limited direct use of information obtained under section 14(1) POBO which was within a very narrow ambit:-
- There was a complete prohibition against direct use of answers given in response to a Notice issued under a section 14(1)(d) Notice.
- The direct use permitted under section 20(a) was confined to the use of “any statutory declaration or statement in writing” furnished by the person being served with a section 14 Notice. This refers only to materials required by notices issued under section 14(1)(a), (b) or (c), but not under section 14(1)(d) POBO. This distinction was due to the following reasons:
- Information provided under section 14(1)(a), (b) and (c) Notices was essentially confined to written responses giving an account of assets, liabilities and personal and family expenditure, and the subject’s own property and details of their acquisition. The subject could carefully compile his written response, with legal advice, if necessary.
- The scope of intrusion under section 14(1)(d) was much more extensive as it related to any subject matter which the ICAC officer considered to be relevant to the investigation.
- The direct use of information obtained under section 14(1)(a), (b) and (c) Notices was limited to the cross-examination at trial as to the credit of a defendant who tendered himself as a witness in POBO proceedings.
- Any such use of information was subject to the Court’s overriding duty to ensure a fair trial. This means that the Court has the discretion to exclude otherwise permissible courses if excluding them is necessary in order to secure a fair trial.
- Section 20 POBO allows derivative use of the information obtained under section 14(1) POBO, i.e. to develop new lines of inquiry (which may lead to other persons, even the person being served a section 14(1)(d) Notice, becoming suspects); to identify sources of independent evidence; and to assist in formulating applications for search warrants.
- The CFA held the abrogation of the privilege against self-incrimination to be constitutional and that the appellant had construed section 20 POBO erroneously (please refer to the use permitted under section 20 POBO discussed above). As the answers from a non-suspect in receipt of a section 14(1)(d) Notice cannot be used in evidence against him in a prosecution, Articles 10 (equality before courts and right to fair and public hearing) and Article 11 (rights of persons charged with or convicted of criminal offence) of the Bill of Rights (which are given constitutional protection by Article 30 of the Basic Law) are not engaged as a result of the abrogation of the privilege against self-incrimination.
- The CFA also assessed the constitutionality of section 20 POBO:
- It was rational to equip the ICAC with special investigative powers for the legitimate purpose of suppressing corruption in society.
- Whether or not the abrogation of the privilege against self-incrimination infringes the rights protected under Articles 10 and 11 of the Bill of Rights depends upon the nature of the scope of the information extracted by statutory compulsion and the use to which such information is put.
- The use of the information permitted by section 20 POBO is no more than a necessary means to ensure effective investigation of corruptions, and is a fair balance between the public interest in realising the legitimate aim of suppressing corruption and protection of the fundamental rights of the individual.
For further information, please contact:
Gareth Hughes, Partner, Ashurst
Sanjay Sakhrani, Ashurst