The Commissioner of the Independent Commission Against Corruption v. A

HCCM8/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO. 8 OF 2009

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BETWEEN

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Before : Hon D. Pang J in Court

Dates of Hearing : 14 to 17 February and 7 June 2011

Date of Decision : 13 June 2011

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D E C I S I O N

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1.This is an application in respect of my order dated 2 March 2009 for the relief sought under paragraphs 1 and 2 of the respondent’s amended summons dated 19 November 2010.

Under the Common Law

2.In essence, the respondent raises two issues.  The first being, under common law, whether the legislative framework under section 14 of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”) admits a construction which abrogates the privilege against self-incrimination.

Principle of Legality

3.On this front, the respondent relies heavily on the principle of legality, a principle of statutory construction which, I am told, began to lend itself to articulation in the 1990’s.

4.For an appreciation of its operation, I have been taken through such cases as R v Secretary of State for the Home Office, Ex parte Pierson [1998] AC 539; R v Secretary of State for the Home Office, Ex parte Simms [2000] 2 AC 115; R (Morgan Grenfell) v Special Commissioner [2003] 1 AC 563; R (Anufrijeva) v Secretary of State for the Home Department & Another [2004] 1 AC 604; and Her Majesty’s Treasury v Mohammed Jabar Ahmed & Others [2010] 2 AC 534.

5.An analysis of the facts and conclusions of these cases is unnecessary.  Suffice it to say that, under the principle of legality, a fundamental human right can only be overridden by statute by “express words or necessary implication”.

6.A necessary implication, as Lord Hobhouse explained in Morgan Grenfell (at paragraph 45 of the judgment) :

“…. is not the same as a reasonable implication. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

7.In addition, Lord Hoffman had, in an oft‑quoted passage in Simms, advanced what now appears to be the accepted raison d’etre of the principle(at page 131E–G of the judgment) :

“Parliament sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

8.The same principle is recognized and applied in Hong Kong an example of which is Gurung Kesh Bahadur v Director of Immigration, CACV216/2000.

The Purposive Approach

9.The applicant does not dispute the applicability of the principle of legality in this or any other case.

10.The applicant submits, however, that the cases referred to in paragraph 4 above are extreme cases by which I understand the applicant to mean instances of obvious executive excesses where judicial intervention was undeniably justified — virtual increase in the minimum sentence to be served by a life prisoner on a wrong factual basis and despite reasoned judicial recommendation (Pierson); blanket prohibition on the publication of prisoners’ interviews when a substantial number of miscarriages of justice had been uncovered by investigative journalism (Simms); compulsion to disclose legal advice on a tax avoidance scheme hence a breach of the subject’s legal professional privilege (Morgan Grenfell); withdrawal of an asylum seeker’s income support by an internal note on a departmental file with legal effect from a date before notification of the decision, with some suggestion that the delay in notification was deliberate (Anufrijeva); the freezing of assets of nationals supposedly involved in terrorism without parliamentary scrutiny and without addressing the questions of identification and standard of proof (Ahmed).

11.The applicant points to a general approach to statutory interpretation, an approach which section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 encapsulates and which the Court of Appeal in The Queen v Soo Fat-ho [1992] 2 HKCLR 114 commented as being “all too frequently conveniently ignored”. 

12.Section 19, which, the Court of Appeal also observed, had no English equivalent, reads as follows :

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

13.This approach found contemporary support in HKSAR v Cheung Kwun Yin [2009] 12 HKCFAR 568 where, giving judgment of the Court of Final Appeal, Li CJ pronounced (at paragraphs 12 and 13) :

“The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to it context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at p606E, Sir Anthony Mason NPJ stated:

‘The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.’

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p154B–C.  As the Court pointed out in Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1 at p14A–C, the mischief rule is an early example of the purposive approach. And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s19 of the Interpretation and General Clauses Ordinance (Cap 1).”

14.Clearly, the principle of legality can only find expression within the rubric of the purposive approach — and only if and when the situation strictly demands it.  That, in my judgment, is the position in Hong Kong.

Legislative History & Other Materials

15.Next, I turn to the question whether Hansard (for want of a better shorthand expression) and other materials can be referred to in the present proceedings. 

16.On this, the parties seemingly disagree.

17.I say ‘seemingly’ because the respondent has resorted to R v Environment Secretary, ex p Spath Holme Ltd [2001] 2 AC 349 to advance the point that Government statements should never be allowed to control the meaning of the words used in statutes whereas, unless I am mistaken, all the applicant intends to do is introduce materials permissible for the identification of legislative intent under the purposive approach.

18.Once again quoting Li CJ from the case of Cheung Kwun Yin (at paragraph 14 of the judgment) :

“ The purpose of a statutory provision may be evident from the provision itself. Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation. The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill. Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end.”

19.That being the case, such will be my approach to the materials placed before me.  There is no need to rule on the limits of the approach in Pepper v Hart [1993] AC 593 which Spath Holme explained and/or qualified.  The Court of Final Appeal desisted from such an attempt in Cheung Kwun Yin.

The Provisions under Consideration

20.Lengthy submissions have been made by both sides on the provisions under consideration.  I will not repeat them.  Rulings, where necessary, will be made as I continue in the ensuing analysis.

i)   evolution

21.The power to obtain information has, since the inception of the POBO, applied to two classes of individuals, suspects and non-suspects.  “Person suspected to have committed an offence under the Ordinance” versus “any other person” — such is the distinction drawn (and actual words used) in section 14.

22.For sanction against non-compliance, section 14(4) in its original 1970 version provided :

“(4) Every person on whom a notice under subsection (1) is served shall, notwithstanding the provisions of any other law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance, comply with the terms of that notice within such time as may be specified therein or within such further time as the Attorney General may, in his discretion, authorize, and any person on whom such a notice has been served, other than the person referred to in paragraphs (a) and (b) of subsection (1), 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 twenty thousand dollars and to imprisonment for one year.” (Emphasis added)

23.It follows that suspects (reference “the person referred to in paragraphs (a) and (b) of subsection (1)” in the 1970 text) were exempted.  Only non‑suspects were caught.

24.Instead, a suspect’s failure to comply could be adduced in evidence and made the subject of comment in any subsequent prosecution against him for other POBO offences (obviously including the offence of which he was suspected) : section 20(b).

25.If he did comply, however, he would be subject to two evidential disadvantages in such a prosecution, namely a direct use of the information provided by him as evidence against him and an indirect use of the same as previous inconsistent statements to discredit him if he tendered himself as a witness : section 20(a)[1]. 

26.In 1974, the above regime was modified.

27.Section 14(4) in the then amended Ordinance read:

“(4) Every person on whom a notice under subsection (1) is served shall, notwithstanding the provisions of any other law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance, comply with the terms of that notice within such time as may be specified therein or within such further time as the Commissioner may, in his discretion, authorize, 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.” (Emphasis added)

28.Otherwise, everything including section 20(b) remained the same.

29.In short, the position of the suspect became more exposed in that he too became criminally liable for non-compliance whilst the position of the non‑suspect remained unchanged.  That is what one irresistibly deduces from the wording of the provisions.

30.Then, in 1995, in an exercise to bring the POBO in line with the Bill of Rights (“BOR”), further amendments were made.

31.This time, section 14(4) was unaffected.

32.On the other hand, the old section 20 was completely overhauled the major result of which was the discontinuation of the direct use of information provided by a suspect as evidence against him — reference to such a use was taken out from the section altogether[2].

33.The broad wording of the overhauled section 20 also suggests that individuals who started off as non-suspects but who later on are prosecuted under the POBO for an offence other than non-compliance will also suffer the prospect of being confronted with information they provided under section 14 notices as previous inconsistent statements, or, if they failed to comply with the notices in any way, have that fact commented on by the court and prosecution.  These are evidential disadvantages that only pertained to suspects before 1995.

34.Very broadly, this is the path that provisions most relevant to this application have taken to evolve into their present form.

35.I should add that, in section 14(4), the phrase “every person … shall, notwithstanding the provisions of any other law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance, comply” has, in 1998 and to achieve the localisation and adaptation of laws after the resumption of exercise of sovereignty, been modified to “every person … 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, comply”.  (Emphasis added)

ii)   government statements etc.

36.The above is amendment history — words put into and taken out from texts.

37.Co‑existing are government statements (excerpts of speeches of Attorneys General) and other materials (Explanatory Memoranda to amendment bills) that accompanied those amendments. 

38.I do not propose to go into any of those statements and materials.  Having looked at them, I am satisfied that they add little to what a straight reading of the POBO and/or comparison of its multi‑dated texts do not tell.  The same conclusions either present themselves squarely on the face of the Ordinance or can be readily drawn.  No exercise of the kind that Spath Holme so seemingly deplores need after all be engaged.  There can be no question that LegCo was unaware of the policy objectives behind sections 14 and 20 and their various amendments.

39.As a recap, both suspects and non-suspects commit an offence if they do not comply with a section 14 notice.[3] Both suspects and non‑suspects suffer the same evidential disadvantage whether in compliance (cross‑examined for previous inconsistencies) or non‑compliance (comment by court and prosecution).  Information provided under a section 14 notice cannot however be used as primary evidence against either class of individuals in their trial.  That is the current position.

Related Issues

i)   whether existence of direct use immunity relevant

40.Picking up from my second last sentence, I base that deduction primarily from the fact that words enabling such information be used as direct evidence were taken out in the 1995 amendment (see paragraph 32 above) — in order that the relevant provisions might become BOR-consistent (paragraph 30).

41.I adjudge that to be a correct approach in statutory interpretation giving rise to a correct result[4].

42.But assuming for the moment that I was wrong in making that deduction, I adjudge it to be of no consequence because, at common law, the existence or otherwise of a direct use immunity is irrelevant insofar as it concerns the abrogation of the right against self‑incrimination.  

43.After analyzing a line of English and Australian authorities, albeit that his focus was on derivative as opposed to direct use immunity, this is what Ribeiro PJ observed in giving judgment of the Court of Final Appeal in HKSAR v Lee Ming Tee [2001] 4 HKCFAR 133 (at page 170F–G) :

“ Where the privilege against self-incrimination is overridden, in the absence of any binding restriction on use (whether statutory, by judicial order, by undertaking or otherwise), self-incriminating answers thereby obtained are subject to unrestricted use.”

44.In other words, use (whether direct or derivative) of information given under legal compulsion will not in itself vitiate abrogation of the privilege under common law.

ii)   suspects versus non-suspects

45.Much criticism has been directed at the distinction that section 14 draws between “[the] person suspected to have committed an offence under the Ordinance” and “any other person”.

46.The respondent contends that such a distinction is meaningless, at best artificial, in that although a person may not, at the time of a section 14 notice, be suspected of a particular offence (hence not a suspect), he may, in the course of providing information under the compulsion of such a notice, expose his complicity in the same or other offence(s) (thus becoming one).

47.It is also said that this distinction would wreak havoc on ICAC investigators where, premonitions prove right, they find non-suspects metamorphosing into suspects during an interview.  Such mundane questions as whether a caution should be administered and in what form would then have to be considered with no good solution. 

48.In short, the respondent is concerned that the rights of non-suspects may through inadvertence or, worse, malice be prejudiced by those who so classify them. 

49.In my judgment, the respondent’s complaint is more imagined than real. 

50.It is obvious why non-suspects are given separate attention in section 14 for how else, one wonders, individuals could be brought in to provide assistance where there are no reasonable grounds to suspect them of wrongdoing.  There is no general duty on the citizen to assist the authorities.  

51.Conversely, non‑suspects are, at least under the current regime, under the same protection as suspects. Certain evidential disadvantages aside, information provided under a section 14 notice cannot be used to mount a prosecution against either class of individuals (see paragraph 39 above). 

52.It follows that no caution is required where a non-suspect begins to incriminate himself before his interviewer, to cite the example given by the respondent.  In this, he is no different from a suspect.

iii)   general terms versus clear and unambiguous language

53.Criticism is also directed at the syntax of section 14, in particular sub-section (4).  It is contended that it lacks what the principle of legality requires — “express language or necessary implication” that points to no other conclusion but abrogation (see paragraph 7 above).

54.I disagree.

55.The aim and purpose of section 14(4) is crystal clear — the compulsion of “every person” on whom a section 14 notice is served to give information. 

56.Given the distinction between suspects and non-suspects drawn elsewhere in the same section, “every person” here must mean both classes of individuals. 

57.The only query that the respondent can raise therefore goes to the phrase “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”.

58.Contrary to what is submitted, I find this phrase not only syntactically capable of bearing a construction that favours abrogation (this much is conceded by the respondent), but that it actually has that effect at least by necessary implication.

59.By pinpointing section 4 of the Inland Revenue Ordinance, the one and only exception that LegCo cared to itemize, there is no room for other exceptions.  Otherwise, one would expect them to have been listed out. 

60.Putting it another way, the breadth of the words used is dictated by the universality of the exclusion intended, the right against self‑incrimination being just one of the many possible laws that may impede compulsion, albeit that it is one that would immediately come to mind to lawyers and legislators.

61.Finally, I draw support from Chan Sze Ting & Another v HKSAR (1997‑1998) 1 HKCFAR 46.  Though a case on section 13, it deals with a very similar power under a very similar scheme.  And although the principle of legality receives no particular mention, it is stated clearly in the judgment that there is a strong presumption against abrogation and that a statute can (only) achieve abrogation “expressly or by necessary implication” (at page 50E).  

Short Conclusion

62.The respondent’s challenge under the common law fails.

Under the Bill of Rights

63.Alternatively, the respondent contends that section 14 is in breach of the BOR, primarily Article 10, the right to a fair trial of which the right to silence is an important facet.[5]

Direct Use Immunity Revisited

64.There are a number of aspects to the respondent’s contention, the most important of which remains whether there is a direct use immunity under the section 14 scheme.  It is common ground that under a BOR challenge, the integrity of the applicant’s case depends very much on the answer to this question.

i)   a summary view

65.As pointed out, it is my judgment that information obtained under a section 14 notice is no longer admissible as primary evidence.  I base that conclusion on the removal of provisions authorizing such use from section 20 in the 1995 amendment (see paragraph 40 above).

66.Given the human rights norm in restricting the use of compelled information, and the fact that the purpose of the 1995 amendment was to render the section 14 scheme BOR-consistent, that seems to me to be the only logical conclusion under the Cap. 1-enshrined purposive approach to statutory interpretation (paragraph 11). 

67.Conversely, there can be no answer to the question why direct use was taken out from section 20 by our legislators.

ii)   permissive versus prohibitive

68.As a counter-argument, the respondent presses the point that section 20 is merely permissive — stating what is permitted of the compelled information (such indirect use as former statements) but not exhaustively (therefore leaving room for its direct use as primary evidence).  In order to put an end to direct use, there must instead be something prohibitive, a provision which is positively worded against it.

69.In my judgment, the objection to this approach is that it operates in a vacuum.  It fails to give effect to the purposive approach which the courts in Hong Kong are statutorily required to follow.

70.Adopting the purposive approach, and taking into account everything that can be taken into account under that approach, I adjudge that section 20 is exhaustive.  Every use that can be made of the information obtained under section 14 has been positively enunciated.  It does not include any direct use.

iii)   other ordinances as examples

71.Regarding the large number of other Ordinances that the respondent has placed before me as examples, they are to me of very limited assistance.  To say that a piece of legislation is flawed because other pieces of legislation are differently and/or supposedly better drafted is a non sequitur.

iv)   ICAC’s own review

72.The following passage appears in the ICAC Review Committee Report dated December 1994 (paragraph 12.22 at page 83) :

“ Our legal advisor is of the view that, following a recent ruling by the European Commission of Human Rights, the use of information furnished by the accused under section 14(1)(a) and (b) as primary evidence would risk a challenge under the BORO. He has proposed that section 20 be re-drafted to confine the use of section 14(1)(a) and (b) responses to the collection of derivative evidence and material for cross-examination if the defendant chooses to give evidence. This approach is adopted in section 3 of the Organised and Serious Crimes Ordinance.”

73.As we now know, the 1995 amendment did not follow the route of the Organised and Serious Crimes Ordinance (“OSCO”).  The point is therefore made by the respondent that LegCo had, by choice, preserved direct use.

74.Quite simply, this argument disregards the government statements made during the passage of the amendment and the glaringly conspicuous removal of the provision authorizing direct use from the new section 20.  It also assumes that the OSCO route is the only route to achieve that purpose.  

v)   reading down as remedy

75.Up to this point, the conclusion I have reached arises solely from a normal exercise of statutory construction (see paragraph 70 above).

76.But assuming I was wrong, and that section 20 does not prohibit direct use as it now stands, it is nevertheless my judgment that it can be read down to give prohibition effect.

77.This is one of the commonest remedies in a constitutional challenge.

78.In so doing, I disagree with the respondent that I would be giving section 20 an interpretation “incompatible with the underlying thrust of the legislation”, or one that would “not go with the grain of it” or “change the substance of a provision completely” : HKSAR v Lam Kwong Wai & Another [2006)] 9 HKCFAR 574; R (Anderson) v Secretary of State for the Home Department [2003] 2 AC 467; Bellinger v Bellinger [2003] 2 AC 467.

79.To borrow the respondent’s original turn of phrase, I would merely be putting a cap on what section 20 fails to exhaust about permitted use (see paragraph 68 above).  In keeping with the legislative intent to compel information (paragraphs 55 and 56) but giving heed to the relevant human rights norm, I would merely be saying — ‘section 20 permits the indirect use of information already stipulated in it but no more.’

vi)   leaving it to the trial judge

80.As a final fallback position, the applicant argues that a trial judge’s discretion to exclude evidence will act as a sufficient safeguard against direct use.

81.This is a respectable proposition.  For it to stand, however, there must be a definitive ruling in domestic law that the putting to such use of compelled information is rights‑inconsistent.[6]

82.As things are, the situation is dependent on a number of factors — the social evil behind the offence, the seriousness of the penalty etc.[7]  If that is correct, and what is involved is a balancing exercise on a case by case basis, then it is my judgment that the applicant’s proposition lacks the certainty that it requires.  In theory, judges may differ on the proportionality question of the section 14 scheme.

Derivative Use Immunity

83.There is a second aspect to the respondent’s BOR challenge.

84.It is contended that the absence of derivative use immunity alone is sufficient to render the section 14 scheme rights‑inconsistent.   Case law, statutes and academic comments from Australia and Canada are found and cited in support of this contention.

85.That said, there is a stark absence of similar English jurisprudence (none has been quoted) and in Hong Kong, HKSAR v Lee Ming Tee & Another [2001] 4 HKCFAR 133 is the local authority which plainly says the opposite.  

86.I hold myself bound by the Court of Final Appeal’s decision in that case.

Other Issues

i)   whether reliability relevant

87.Two other points have been raised by the applicant in the course of argument.  First, it is submitted that unlike confessions (the eliciting of which may be by doubtful means), information provided under a legal duty (where no such question arises) is inherently reliable thus rendering its reception not prejudicial to a fair trial.

88.I am not attracted to this arguably Machiavellian approach.  Absent any authority directly on point, I am not persuaded that the integrity of as fundamental a right as the right against self‑incrimination is or can be dependent on the reliability of the information contrarily extracted.

ii)   documents versus oral information

89.The second point that the applicant raises is that a distinction can be drawn between documents and other materials which existed independently of the will of the subject under compulsion on the one hand, and the oral information that is likely to be forthcoming from that same subject on the other.

90.English case law (AG’s Reference (No 7 of 2000) [2001] 1 WLR 1879) is cited to support the proposition that the compulsion of the former (documents and other materials) infringes no rights so it is to the extent that section 14 compels the giving of the latter (oral information) that the true debate really lies in this present application.

91.In the absence of clear local authority on the point, I am not prepared to draw that distinction.

92.I can see why there is no objection to an innocent person (a non‑suspect in the true sense) producing some incriminating article that his law‑breaking associate (the suspect) has placed in his custody.  The same however cannot be said of a secretly culpable person (hence still a non‑suspect) either acting alone or having co‑custody of such an article with his exposed partner in crime (the suspect).  I do not see how it can be said that this person’s right against self‑incrimination is not infringed as when he is compelled to give oral information.

93.I should add that I find the analogy between section 14 and a search warrant unhelpful.  Under section 14, there is an active duty to be forthcoming.  Under a search warrant, the duty is a mere passive one not to obstruct. 

Relevant Case Law

94.Much case law has been looked into in the course of argument.

95.It is unrealistic for me to have to repeat that exercise.  Moreover, much of what can be distilled as the general principles is not controversial.  It is all in the application.

96.Based on Secretary for Justice v Latker [2009] 2 HKC 100, the latest available authority in Hong Kong and a decision reached after a full canvass of local and international human rights jurisprudence on the subject, the following can be categorically stated for our purpose :

(a)   the right against self‑incrimination is not absolute.

(b)   to survive a constitutional challenge, the section 14 scheme must however pass the proportionality test.

(c)   to pass the proportionality test, the derogation effected by the scheme must be shown to be –

(i)   rationally connected to a legitimate purpose; and

(ii)   no more than necessary to accomplish that purpose. 

(d)   in considering (c), the following matters are relevant –

(i)   the public interest at stake;

(ii)   the extent of the interference with the right concerned;

(iii)   the safeguard in place for the protection of the individual; and

(iv)   the penalties involved in non-compliance.

97.Given the perniciousness of bribery as a social evil and the stout alliance hence unbreakable silence that often exists between gratified parties to a corrupt arrangement, there can be no debate that a more intrusive scheme of investigation whereby suspects and non-suspects alike can be extensively questioned is desirable.

98.The key is in the putting in place a direct use immunity, plus the restraint of a modest penalty for non-compliance.  Once those conditions are established, proportionality also is established.  That, in my judgment, is what the section 14 scheme has achieved (see paragraph 39 and footnote 3above).

Another Short Conclusion

99.The respondent’s challenge under the BOR also fails.

Evidential Threshold

100.During these proceedings, the question arises as to whether evidence needs ever be called to challenge a section 14 notice on the ground that it infringes one’s right against self‑incrimination.

101.The applicant’s position is that, in the case of a non-suspect at least, the answer must be positive.  The applicant is concerned that the operation of the section 14 scheme is not brought to a halt by bald assertions of BOR breaches.

102.In my judgment, the answer depends on the remoteness of a non-suspect’s connection with the offence suspected to have been committed.  The further away his involvement is perceived to be from the affairs that constitute the suspected offence, the more force there is to the applicant’s concern.

103.On the information before me, the same information that prompted the making of the order that is now in issue, I am satisfied that no other evidence needs to be adduced by the respondent to mount his BOR challenge.

Final Conclusion

104.The respondent’s application is refused.

105.Costs of and occasioned by the application to be to the applicant on a nisi basis.  Certificate for two counsel.  Any submissions to vary the costs order nisi to be filed and served by the respondent within 14 days and to be replied to by the applicant within 14 days thereafter.  Any return to the costs order nisi to be determined on the papers.

Mr Wong Wai Chung, Wesley, DDPP and Ms Lam Wing Sai, Vinci, SPP of Department of Justice, for the Applicant

Mr Richard Gordon, QC, Mr Gerard McCoy, SC and Mr Timothy Parker, instructed by Messrs P.C. Woo & Co., for the Respondent

Please refer to FACC9/2011 for the relevant appeal(s) to the Court of Final Appeal.