HKSAR v. CHAN SZE TING

1997, NO. MA 106, 107

HEADNOTE

Prevention of Bribery Ordinance, Cap. 201 - Whether the words "any person" in s.13(1)(b), on proper construction, can only mean persons other than a suspect and do not include a person "alleged or suspected" of having committed an offence under the Ordinance - Whether common law privilege against self-incrimination available to the accused - Privilege abrogated by Ordinance, s.13(3) - No reliance can be placed on privilege against self-incrimination or a reasonable excuse that the accused had such a privilege when the right or privilege has been taken away by statute and no longer exists - Appeals dismissed.

1997, NO. MA 106

HIGH COURT

IN THE COURT OF APPEAL

MAGISTRACY APPEAL

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J U D G M E N T

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Wong, J. (delivering the judgement of the Court):

1. The appellants were each convicted in the same trial before the same magistrate of a charge of failing to disclose information and produce documentation, contrary to section 13(3) of the Prevention of Bribery Ordinance, Cap.201. Each was fined. The particulars in each charge are identical except the name of the defendant and the date of the offence. In Eastern Magistracy Case No.4403 of 1996, the particulars read:-

"LEE Chin-ming, on the fifteenth day of August 1996, in Hong Kong, having been lawfully required by LUI King-chiu, an investigating officer of the Independent Commission Against Corruption, duly authorised under s.13(1) of the Prevention of Bribery 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 name of the defendant in Eastern Magistracy Case No.4404 of 1996 was CHAN Sze-ting and the date of the offence was 21st August 1996. The two cases were heard together before Mr. Paul Kelly in Eastern Magistracy because they involved the same issues.

2. The facts are not in dispute. They were either agreed or admitted at the trial. The following is a chronology of events.

1. At all relevant times, it appeared to the Deputy Commissioner of the Independent Commission Against Corruption ["ICAC"] that an offence or offences under the Prevention of Bribery Ordinance ["the Ordinance"] may have been committed by a person or persons.

2. On 2nd August 1994, the Deputy Commissioner issued a written authorization under s.13(1) of the Ordinance authorizing investigating officers of the ICAC to exercise the powers under s.13(1) in relation to LEE Chin-ming. A similar authorization was issued in relation to CHAN Sze-ting and his wife, TONG Yuen-ming, Anna on the same day.

3. On 20th September 1995, LEE Chin-ming and CHAN Sze-ting were each served with a notice issued by the Deputy Commissioner under s.14(1)(a) of the Ordinance. The notices were dated 19th September 1995 which required each of them to furnish a statutory declaration enumerating all bank accounts belonging to, or possessed by him, or which at any time during the three years immediately prior to the issue of such notice belonged to, or was possessed by him, his agents or trustees either inside or outside Hong Kong.

4. In response, LEE Chin-ming made a statutory declaration on 24th October 1995 in which he admitted possession of accounts with the Yien Yieh Commercial Bank, the Hong Kong & Shanghai Banking Corporation, Hang Seng Bank and the Union Bank of Switzerland (UBS). He provided the account numbers for all the listed accounts except for those held with the UBS professing not to be able to recall the number of the accounts. He admitted that he held the UBS bank account on trust. However, he did not reveal the identity of the person or persons for whom he held the UBS bank account on trust.

CHAN Sze-ting made two statutory declarations on 18th October 1995 and 24th November 1995 and disclosed certain information. In the first declaration, he admitted previous possession of, inter alia, a fixed deposit account with the Hang Seng Bank, a savings account with the Bank of East Asia and an account with the Union Bank of Switzerland (UBS). He professed not to be able to recall the numbers of the accounts. He also admitted that he maintained the UBS bank account in the capacity of a trustee. He did not reveal the identity of the person or persons for whom he held the UBS bank account on trust.

5. In the case of LEE Chin-ming, a request for further particulars under the s.14(1)(a) notice was made by the Deputy Commissioner on 27th October 1995. A response was given under cover of a letter dated 24th November 1995.

6. On 11th April 1996, pursuant to the provisions of s.13(1)(b) of the Ordinance, LUI King-chiu, an investigating officer of the ICAC, made a request to both LEE Chin-ming and CHAN Sze-ting to disclose certain information and produce to him documents in relation to the UBS account. In particular, it was requested that each of them disclosed the identity of the person or persons for whom the UBS bank accounts were held on trust.

7. Solicitors acting for LEE and CHAN wrote to the ICAC contending that s.13(1)(b) had no application to their clients and there was no obligation on their clients to comply with the requests. The requests were not complied with.

8. On 1st August 1996, pursuant to the provisions of s.13(1)(b) of the Ordinance, LUI King-chiu, an investigating officer of the ICAC, made a further request to LEE Chin-ming to disclose certain information and produce to him documents in relation to the UBS account. In writing, and upon production of a written authorisation issued by the Deputy Commissioner of the ICAC under section 13(1) of the Ordinance, Mr. LUI specifically required LEE Chin-ming to disclose to him, within 14 days, the numbers of the accounts and on whose behalf he held the UBS bank account as trustee, and to produce to him, for inspection and the taking of copies thereof, statements of the accounts from the dates of their respective inception to the dates of their respective closure. Lee failed to do so within the specified period.

A similar request was made to CHAN Sze-ting on 6th August 1996. He also failed to comply with the request within the specified period.

9. LEE Chin-ming responded in a letter dated 15th August 1996 and CHAN Sze-ting did so on 20th August 1996. Neither disclosed the information or produced the documents requested. In particular, there was no mention on whose behalf they held the UBS bank accounts as trustees.

3. On 23rd October 1996, the appellants were each charged with an offence under s.13(3) of the Prevention of Bribery Ordinance, Cap.201. Section 13(3) reads:-

"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 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 ......"

4. This appeal first came before Gall J. in the High Court, - as it then was, on the application of Counsel for the appellants, the judge transferred the appeal to the Court of Appeal for determination pursuant to s.118(1)(d) of the Magistrates Ordinance, Cap.227. We are concerned with the appeal against convictions only.

5. There are a total of four grounds of appeal and they are as follows:-

1. That the words "any person" in s.13(1)(b) Prevention of Bribery Ordinance properly interpreted only permits information to be obtained about suspected persons from third parties, not from the suspect himself.

2. That the words "any person" in s.13(1)(b) do not include a person "alleged or suspected" of having committed an offence under the Ordinance.

3. That a person who was entitled to claim the privilege against self-incrimination was not "lawfully required" under s.13(3) to disclose/produce documents pursuant to s.13(1)(b).

4. That in any event, a person who was entitled to claim the privilege against self-incrimination had a "reasonable excuse" in terms of s.13(3) for non-compliance with any authorisation directed to such a person under s.13(1)(b).

6. As both grounds 1 and 2 relate to the interpretation of the words "any person" in s.13(1)(b), it would be more convenient to deal with them together. It is firstly necessary to look at s.13(1)(b) to see what it says:-

"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 -

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."

Mr. McCoy SC, who appears for the appellants before this Court, submits that the words "any person", on proper construction, can only mean persons other than a suspect. The words "any person" do not include a person "alleged or suspected" of having committed an offence under the Ordinance. He says that s.14(1) has made specific provision for such a situation. If it is the intention of the legislature to make s.13(1)(b) applicable to a person alleged or suspected to have committed an offence under the Ordinance, he queries why is it then necessary for the enactment of s.14(1).

7. Under s.14(1)(a) and (b), where there is an investigation or proceedings in relation to an offence alleged or suspected to have been committed by any person under the Ordinance, the Commissioner may by written notice require such person to furnish to an investigating officer with a statutory declaration or written statement enumerating his property, expenditure and liabilities or particulars of money or property sent out of Hong Kong. Under this section, the Commissioner may also require any other person to provide information or material by statutory declaration, written statement or answering questions on oath.

8. Mr. McCoy also submits that the intention of s.13 was to overcome the rule in Tournier v Provincial National Bankers Union of England [1924] 1 KB 461 regarding banker confidentiality. Thus it will enable the Commissioner to compel A, the custodian of accounts etc, to disclose information about B, to whom the accounts etc relate, B being a person named or otherwise identified in the authorization. We are not impressed by this argument. We agree with Mr. Zervos, who appears for the Government, that if the section is intended to compel A to produce the accounts etc, why is it not also intended to compel B to produce them if he is in possession of them. Mr. McCoy submits that the fact there is no linkage between s.13 and s.20 of the Ordinance is another example of clear legislative evidence that s.13 does not apply to a suspect, unlike s.14. Section 20 reads:-

"In any proceedings against a person for an offence under this Ordinance -

(a) any statutory declaration or statement in writing furnished by him in compliance or purported compliance with the terms of a notice served upon him under section 14(1)(a) or (b) shall be admissible in evidence and, if such person tenders himself as a witness, any such declaration or statement may be used in cross-examination and for the purpose of impeaching his credit;

(b) the fact of his failure in any respect to comply with the terms of a notice served on him under section 14(1)(a) or (b) may be adduced in evidence and made the subject of comment by the court and the prosecution."

9. We are unable to see how s.20 supports Mr. McCoy's argument. A careful reading of s.13 and s.14 clearly shows the difference between the two sections. Section 13 is general in nature while s.14 is specific. It may be said that s.13 exists for one purpose and s.14 for another but they complement each other. One is not a substitute for the other. Together they can be used as powerful tools for investigating corruption offences and obtaining evidence for the trial of offenders. In order to combat corruption vigorously, it is clear that those who are charged with investigation must be given the widest powers. It seems to us to be totally strange that an investigator can ask anyone else about the financial state of a corrupt officer or person but he cannot ask the corrupt officer or person who must have more information or possess more documents than anyone else.

10. In the course of his submission and in his skeleton argument, Mr. McCoy refers to several English and Commonwealth decisions as examples of interpreting "any person" in a restricted sense. Suffice it to say we do not find these cases to be of any assistance for present purposes. The restricted meaning adopted in those cases was peculiar to the particular circumstances in each case. In his Statement of Findings at p.125 of the transcript the magistrate made this finding at (c):

"There is no ambiguity or uncertainty in the expression "any person". It does not fall to have a construction imposed upon it. It means what it says, neither more nor less. A notice can be directed to a suspected person requiring that person to disclose information about himself."

We agree that this is a correct finding. The words "any person" in s.13(1)(b) should be given their ordinary meaning to include a person alleged or suspected of having committed an offence under the Ordinance and any other person. This interpretation is consistent with the object of the Prevention of Bribery Ordinance and s.19 of the Interpretation of General Clauses Ordinance, Cap.1 which provides that an Ordinance "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."

11. Grounds 1 and 2 therefore fail.

12. The third ground of appeal is:-

"That a person who was entitled to claim the privilege against self-incrimination was not "lawfully required" under s.13(3) to disclose/produce documents pursuant to s.13(1)(b)."

Mr. McCoy submits that even if the Court rules that the words "any person" in s.13(1)(b) apply to a person "alleged or suspected of having committed an offence under the Ordinance, the appellants cannot be compelled to comply with the notices served on them under that section by virtue of their common law privilege against self-incrimination. He cites a long line of authorities from a number of common law jurisdictions such as the United Kingdom, Australia, New Zealand as well as our own decisions. He submits that the privilege may be taken away by statute and there is a strong presumption against the abrogation of the privilege. He refers to s.33 of the Theft Ordinance and s.3(11)(a) of the Organised and Serious Crime Ordinance as examples of abrogation of the privilege in Hong Kong where clear and precise wording is used to abrogate the privilege. He also relies in particular on a passage of the judgment of Gibbs CJ in Hammond v Commonwealth [1983] 152 CLR 281, 291 (HCA) where the learned Chief Justice said:-

"It would be necessary to find a clear expression of intention before we could conclude that the legislature intended to override so important a privilege as that against self-incrimination."

13. Mr. Zervos submits, on the other hand, that the wording found in s.33 of the Theft Ordinance and s.3(11)(a) of the Organized and Serious Crime Ordinance cater for the particular situation they seek to address. It is clear that the legislature intended to abrogate the privilege against self-incrimination in a section 13 situation by applying the section to "any person" and requiring such person to disclose information or to produce any thing "notwithstanding any provisions of any other law to the contrary". He argues, if the privilege could be invoked when s.13 is exercised it would frustrate and hinder the very purpose for which the power is given by the legislation as the true intent of the Prevention of Bribery Ordinance is to combat corruption by giving the ICAC special powers to obtain information and materials.

14. The legislative history of the Prevention of Bribery Ordinance has to be understood in the context of Hong Kong in the 1960's and early 70's when corruption was widespread. If corruption was not destroyed, it would destroy society. The situation was so serious that it prompted Mr. Denys Roberts, then the Attorney General, when moving the second reading of the Prevention of Bribery Bill in the Legislative Council on 21st October 1970 to say:-

"However severe the penalty may be for an offence, it is unlikely to act as an effective deterrent, unless persons tempted to commit it are convinced that there is a substantial risk that they will be detected, prosecuted and punished. Furthermore, there is no doubt that many who have made large sums by bribery in past years are free to enjoy their profits because of the inadequacy of the present powers of investigation. For these reasons, I believe that, if any real progress is to be made in the reduction of bribery, those responsible for the detection of these offences must be given the enhanced powers of investigation contained in Part III unpalatable as some of them may seem. If some infringement of traditional liberties and privacy is involved, then I believe it is a price which the community ought to be prepared to pay, if it really wishes to see corruption ousted from our public life. If it is not ready to surrender some of these liberties, then it cannot easily, in the future, complain that the Government is reluctant to tackle the evil with sufficient vigour."

It is against this background that the Prevention of Bribery Ordinance was enacted and the Independent Commission Against Corruption established.

15. We fully accept that the privilege against self-incrimination is a well-established common law principle. This was cogently expressed in the decision of the High Court of Australia in Sorby & Another v The Commonwealth [1983] 152 C.L.R. 281 at p.309 where Mason, Wilson and Dawson JJ. said

"The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication."

Whilst no one doubts or can doubt the privilege against self-incrimination, Lord Mustill pertinently noted that statutory interference with that right is almost as old as the right itself. Thus in the House of Lords decision in R v Director of Serious Fraud Office, Ex parte Smith [1993] A.C. 1 at p.40 where he said:-

"That there is strong presumption against interpreting a statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi-ming v The Queen [1991] 2 A.C. 212, 222) described the privilege against self-incrimination as "deep rooted in English law", and I would not wish to minimise its importance in any way. Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated."

In Taylor v New Zealand Poultry Board [1984] 1 NZLR 384, Cooke J. said at p.402:-

"But, as to the scope of the privilege, it is necessary to keep a sense of proportion ... it may well be that one of the prime purposes of a power given by or under statute to question about business or fiscal matters will be frustrated if privilege can be invoked against it. In the end the true intent of the particular authorizing statute must prevail. Only where it is not reasonably discoverable can there be a presumption in favour of the right to silence."

16. In this case, we are satisfied that the legislature clearly intended that the common law privilege against self-incrimination was to be abrogated.

17. This ground also fails.

18. Ground 4 states: "That in any event, a person who was entitled to claim the privilege against self-incrimination had a "reasonable excuse" in terms of s.13(3) for non-compliance with any authorization directed to such a person under s.13(1)(b)".

19. It must also fail for the same reason as it is founded on a right or privilege which did not exist. The appellants cannot successfully raise the defence of reasonable excuse because he enjoys the privilege against self-incrimination when, in fact, that right or privilege has been taken away by the Ordinance.

20. For these reasons, we dismiss the appeal against convictions by both appellants.