Chan Sze Ting and Another v. HKSAR

FAMC No. 4 of 1997

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 4 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA 106 OF 1997 AND 107 OF 1997)

Coram: Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Ching, PJ

Date of Hearing: 5 December 1997

Date of Determination: 18 December 1997

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D E T E R M I N A T I O N

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Chief Justice Li :

1. This is the determination of the Appeal Committee upon an application for leave brought under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

Section 13 of the Prevention of Bribery Ordinance ("the Ordinance")

2. This case concerns section 13 of the Ordinance. It is convenient to set out its material provisions at the outset.

3. Prior to its amendment by the Prevention of Bribery (Miscellaneous Provisions) Ordinance 1996 which came into effect on 18 July 1996, section 13(1) of the Ordinance provided:

"13. Special powers of investigation

(1) Where it appears to the Commissioner that an offence under this Ordinance may have been committed by any person, he may for the purposes of an investigation of such offence authorize in writing any investigating officer to exercise the following powers on the production by him of the authorization -

(a) to investigate and inspect any share account, purchase account, club account, subscription account, investment account, trust account, mutual or trust fund account, expense account, bank account or other account of whatsoever kind or description, any safe-deposit box, and any banker's books or company books, of or relating to any person named or otherwise identified in such authorization;

(b) to require from any person the production of any accounts, books, documents, safe-deposit box or other article of or relating to any person named or otherwise identified in such authorization which may be required for the purpose of such investigation and the disclosure of all or any information relating thereto, and to take copies of such accounts, books or documents or of any relevant entry therein and photographs of any such box (including the contents thereof) or other article."

4. The Prevention of Bribery (Miscellaneous Provisions) Ordinance 1996 revised section 13(1) and introduced in section 13(1A) a judicial safeguard for suspects. We are only concerned with section 13(1) in the terms set out above prior to its amendment.

5. Section 13(3) of the Ordinance, which was not amended in 1996, provides:

" (3) Any person who, having been lawfully required under this section to disclose any information or to produce any accounts, books, documents, safe-deposit box or other article to an investigating officer authorized under subsection (1), shall, notwithstanding the provisions of any other law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance (Cap. 112), comply with such requirement, and any such person who fails or neglects, without reasonable excuse, so to do, and any person who obstructs any such investigating officer in the execution of the authorization given under subsection (1), 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 convictions

6. On 17 December 1996, the two applicants were convicted in the same trial by the magistrate on admitted facts of offences under section 13 of the Ordinance, They were fined. The particulars of each of the offences were that the applicant concerned on a specified day having been lawfully required by an investigating officer of the Independent Commission Against Corruption ("the ICAC") duly authorised under section 13(1) of the Ordinance

"... to provide information and produce documentation relating to a bank account operated by him with the Union Bank of Switzerland, failed or neglected, without reasonable excuse, so to do."

The Court of Appeal

7. The applicants appealed against conviction to a judge who transferred the appeal to the Court of Appeal for determination pursuant to section 118(1)(d) of the Magistrates Ordinance. On 4 September 1997 the Court of Appeal (The Hon Power V-P, Wong and Stuart-Moore JJ) dismissed the appeals and awarded costs to the prosecution. That Court refused to certify that a point of law of great and general importance was involved in the decision.

The application to this Court

8. The applicants then applied to this Court to certify that a point of law of great and general importance is involved in the decision and to grant leave. In their application (both the motion and summons), the applicants did not specify the point of law said to be involved. In response to the Registrar's reminder, the applicants sought to set out the points of law in an amended summons and subsequently further points were sought to be introduced in a re-amended summons. Where applicants apply to the Appeal Committee for certification, it is important that the points of law said to be involved should be clearly set out in the application. Further, as was held by the Appeal Committee in Zeng Liang Xin v. HKSAR, FAMC 1 of 1997, the Court of Appeal order declining to certify should set out the points of law said to be involved either in its recital or the substantive part. Here, the Court of Appeal order does not appear to have been drawn up.

The points of law said to be involved

9. The points of law said to be involved are set out in a number of paragraphs in the applicants' re-amended summons. As was accepted by Mr McCoy SC, who appeared for the applicants before us, in substance, only one point of law is said to be involved, namely:

10. Whether on a proper construction of section 13 of the Ordinance, the privilege against self-incrimination has been abrogated in relation to requirements for disclosure and production made thereunder.

The matters set out in the applicants' re-amended summons relate in effect to various argument on this point of construction.

11. Mr McCoy made clear the applicants' position that if the answer to this point is yes, that is, the privilege has been abrogated, no attack is made that the provision is invalid as having been repealed by the Hong Kong Bill of Rights Ordinance or otherwise. He relies on Article 11(2)(g) of the Bill of Rights Ordinance simply for the purpose of strengthening the common law presumption against interpreting a statute as abolishing the privilege.

Should the Court certify ?

12. It is common ground that (a) there is a strong presumption against interpreting a statute as taking away the privilege against self-incrimination but (b) a statute can expressly or by necessary implication take away that privilege. The question is the proper construction of section 13 having regard to the strong presumption.

13. The Court of Appeal ruled that "any person" in section 13(1)(b) bears its ordinary meaning and includes a suspect; that a person entitled to claim the privilege would nevertheless be lawfully required under section 13(3) to disclose information and produce documents under section 13(1)(b); and that a claim to the privilege should not amount to a reasonable excuse in terms of section 13(3) for non-compliance. The Court of Appeal concluded that the Legislature clearly intended to abrogate the common law privilege. In so doing, it noted the background against which the Prevention of Bribery Ordinance was enacted and the ICAC established. Corruption was widespread and the community was determined to tackle this evil and was prepared to give to the ICAC the necessary investigative tools. We would note that the community is today as determined as ever in its resolve to combat corruption vigorously.

14. In our view, the Court of Appeal was plainly right. This intention appears clearly from the words "any person" which should be given their ordinary meaning without restricting them to persons other than suspects and the words "notwithstanding the provisions of any other law to the contrary" which should be construed to include the common law privilege. As the Court of Appeal was plainly right, no point of law arises for consideration.

Order

15. Accordingly, we refuse the application for a certificate and also for leave to appeal.

Representation:

Mr G J X McCoy SC and Mr P Y Lo (instructed by Messrs Haldanes) for the applicants

Mr A A Bruce SC and Mr K Zervos (of the Department of Justice) for the respondent