A v. The Commissioner of the Independent Commission Against Corruption

FACC No. 9 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCCM NO. 8 OF 2009)

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J U D G M E N T

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Chief Justice Ma:

1.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Bokhary PJ and Mr Justice Chan PJ:

2.  In 1974 the Independent Commission Against Corruption (“the ICAC”) was created and invested with extraordinary powers of investigation.  It is well-known that this happened because it was realized that only such a body so empowered could save Hong Kong from the widespread corruption which was destroying it.  Those powers go essentially to the investigative process rather than the trial process.  That is the historical context in which this appeal is set.  The appeal concerns a key feature of those powers, namely, notices issued under s.14 of the Prevention of Bribery Ordinance, Cap. 201 (“the POBO”).  All our references to sections and subsections will be to those of the POBO save where the contrary is stated.

Issues which have generated the present appeal

3.  With that introduction, we come to the issues which have generated the present appeal.  They flow from the basic question: can a person who has been served with a s.14 notice lawfully invoke the privilege against self-incrimination to justify refusing to comply with it?

4.  The appellant A, who is the recipient of a notice under s.14(1)(d), contends that he can lawfully invoke that privilege to justify not complying with the notice.  It is argued on A’s behalf that, as a matter of statutory interpretation, the privilege has not been abrogated in regard to compliance with s.14 notices.  Alternatively, it is argued on his behalf that such abrogation would be unconstitutional.  The respondent, the Commissioner of the ICAC, contends that the recipient of a s.14 notice cannot lawfully invoke the privilege against self-incrimination.  It is argued on the Commissioner’s behalf that, as a matter of statutory interpretation, the privilege has been abrogated in regard to compliance with s.14 notices and that such abrogation is constitutional.  Those are the issues which have generated the present appeal.

Circumstances of the present case

5.  Shortly stated, the circumstances of the present case are as follows.  On 11 March 2009 a notice under s.14(1)(d) was served on A.  This notice was one of two s.14(1)(d) notices authorized by an order which Deputy Judge Pang (as Derek Pang J then was) made on 2 March 2009 upon the ex parte application of an ICAC investigator.  The other is the one issued to B of B v. Commissioner of the Independent Commission Against Corruption (2010) 13 HKCFAR 1.  No point on self-incrimination was taken in B’s case.

6.  The s.14(1)(d) notice served on A begins by stating that an investigation is being carried out into an offence or offences suspected to have been committed contrary to the POBO by a named person.  We will refer to that person as “the target”.  The notice then states the position occupied by the target, and continues by saying as follows.  (1) The investigation concerns an allegation that the target might have conspired with others, who are not named, 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. (2) It is believed that A is acquainted with facts relevant to the investigation.  (3) He is required 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.

7.  Then comes nine bullet points referring to the areas of investigation which the questions will encompass.  Some of these areas are identified with specificity or at least some specificity.  Others are referred to in very broad terms.  The last one reads: “Such other matters relevant to the said investigation as may arise from information you provide in response to questions asked in respect of the above areas”.

8.  Those bullet points are followed by a statement that A is required, on demand by the named investigator, to produce or deliver or otherwise furnish to him the original or a copy of any document in A’s possession or under his control or to which he may reasonably have access (not being a document readily available to the public) which, in the named investigator’s opinion, may be relevant to the investigation.

9.  Next the notice specified the period within which A had to comply with its terms, which it called “the specified period”. The specified period was stated to be within 28 days from the date of the notice.  And the notice is dated 4 March 2009. But the notice went on to say that in order to comply with it, A is requested to appear before the named investigator at 10:00 am on 12 March 2009 – which is well before the end of the specified period and, indeed, is the very day after the service of the notice on 11 March 2009 – and at such other times and dates within the specified period as is agreed between him and the named investigator.  This oddity in regard to attendance on 12 March 2009 is perhaps ameliorated by the statement in the notice that if A had any difficulty appearing at the time and date referred to, he should contact the named investigator to arrange another time and date within the specified period.

10.  Finally the notice stated that failure or neglect to comply with its terms without reasonable excuse is an offence under s.14(4) and that the wilful making of any false statement in answer to the notice is an offence under s.14(5), with a liability to a fine of $20,000 and imprisonment for one year.

11.  By a summons taken out on 26 March 2009 and amended on 19 November 2010, A applied under Order 32 rule 6 and Order 119 of the Rules of the High Court and under the inherent jurisdiction for the following relief:

“1. A Declaration that notwithstanding the Notice in writing dated 4^th March 2009 issued under Section 14(1)(d) of the Prevention of Bribery Ordinance (Cap. 201)(“POBO”) against the Respondent (the “Notice”) and/or the Ex-Parte Order made by Deputy High Court Judge D. Pang (as he then was) under Section 14(1) of the POBO and sealed on 2^nd March 2009 (the “Order”), the Respondent was and is entitled to assert the 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) in any form whatsoever, whether to be given by way of production or orally or in writing or in any other manner, and/or that the Notice and/or the Order be varied accordingly or in such other manner as the Court may direct;

2. Further and/or alternatively, and without prejudice to the Declaration sought in paragraph 1 above, an Order that the Notice and/or the Order be set aside 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 the Respondent of the privilege against self-incrimination, and/or if not set aside the Notice and/or the Order be varied accordingly or in such other manner as the Court may direct;

3. An Order that costs of this application be to the Respondent.”

12.  That summons was heard by Derek Pang J on 14-17 February and 7 June 2011.  By a decision given on 13 June 2011 he dismissed the summons.  Such a decision being a final decision of the High Court from which no appeal lies to the Court of Appeal, an appeal from the decision lies to this Court at our discretion.   And by reason of the points of law of great and general importance obviously involved, that discretion was exercised by the Appeal Committee to grant leave to appeal to this Court.  Hence the present appeal.

13.  The expression “privilege against self-incrimination” is a convenient one.  It stands for a fundamental right, being the right not to self-incriminate.  That persons have this right is a fundamental principle of the common law.  And this right is guaranteed by our constitution the Basic Law.   In Koon Wing Yee v. Insider Dealing Tribunal (2008) 11 HKCFAR 170 at para. 81, the Court referred to “the privilege against self-incrimination as an integral part of the right to a fair trial which is closely linked to the presumption of innocence”.   The right to a fair trial is guaranteed by art. 87 of the Basic Law as well as by art. 10 of the Bill of Right which instrument is entrenched by art. 39 of the Basic Law. Article 87 of the Basic Law guarantees the presumption of innocence, and so does art. 11(1) of the Bill of Rights.

14.  Some fundamental rights and freedoms, of which freedom from torture is an example, are absolute so as to be non-derogable even in an emergency.  The privilege against self-incrimination is not among them. Not being absolute, it can be restricted, but only if – and only to the extent that – the restriction meets with certain stringent conditions.  Whether those conditions are met will arise for consideration if s.14 is interpreted to mean that the privilege against self-incrimination has been abrogated in regard to compliance with s.14 notices.

Legislation involved

15.  Much of the POBO has to be quoted in full. That is unfortunate but unavoidable. 

16.  Section 14(1A) provides that the Commissioner or an investigating officer may, for the purpose of an investigation into, or proceedings relating to, an offence under that Ordinance, make an ex parte application to the High Court in chambers for an order under subsection (1).  The court, subsection (1B) provides, shall not make an order under subsection (1) unless it is satisfied that there are reasonable grounds for suspecting that –

“(a) in the case of an application relating to subsection (1)(c), that the information to be required from the person being the subject of the application is likely to be relevant to the investigation or the proceedings;

(b) in the case of an application relating to subsection (1)(d) or (e), that the person being the subject of the application has or may reasonably have access to information likely to be relevant to the investigation or the proceedings.”

17.  Then comes subsection (1).  It deals with what can be done on an application under subsection (1A).  Such applications, it will be remembered, concern investigations into, or proceedings relating to, offences suspected to have been committed by any person under the POBO.  So references in subsection (1) to “such person” are to suspects while references therein to “any other person” are to non-suspects.  Subsection (1) provides that where on an application under subsection (1A) the court is satisfied that there are reasonable grounds for suspecting that an offence under the POBO has been committed it may make an order authorizing the Commissioner by notice in writing to require –

“(a) such person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing, enumerating­ –

(i) the property, being property in such categories or classes of property, movable or immovable, as may be specified in such notice, belonging to or possessed by, or which at any time during the 3 years immediately preceding the date of such notice or during such shorter period as may be specified in such notice belonged to or was possessed by, such person, his agents or trustees, specifying in respect of each property enumerated whether it is or was possessed jointly (and, if so, with whom) or severally; and specifying the date upon which, and the person from whom, each such property was acquired and whether by purchase, gift, bequest, inheritance or otherwise, and, where it was acquired by purchase, specifying the consideration paid therefor; and in respect of any property enumerated which has been disposed of, whether by sale, gift or otherwise, at any time during the 3 years immediately preceding the date of the notice or such shorter period as aforesaid, specifying how and to whom the same was disposed of and, where it was disposed of by sale, specifying the consideration given therefor;

(ii) all expenditure incurred by such person in respect of himself, his spouse, parents or children with regard to living expenses and other private expenditure during any period specified in such notice (not, however, being a period commencing earlier than 3 years from the date of the notice);

(iii) all liabilities incurred by such person, his agents or trustees, at such time or during such period as may be specified in such notice (not, however, being a time or a period commencing earlier than 3 years from the date of the notice), and specifying in respect of each such liability whether it was incurred jointly (and, if so, with whom) or severally;

(b) such person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing of any money or other property sent out of Hong Kong by him or on his behalf during such period as may be specified in the notice;

(c) any other person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing enumerating the property, being property in such categories or classes of property, movable or immovable, as may be specified in such notice, belonging to or possessed by him and further stating, in respect of each such property, the date upon which and the person from whom it was acquired, if the Commissioner believes that such information may assist the investigation or proceedings;

(d) any other person whom the Commissioner believes to be acquainted with any facts relevant to such investigation or proceedings to furnish to the investigating officer specified in such notice all information in his possession or to which he may reasonably have access (not being information readily available to the public) respecting such matters as are specified in the notice or, as the Commissioner sees fit, to appear before the investigating officer specified in such notice or such other person specified in the notice and to answer orally on oath or affirmation any questions relevant thereto; and, on demand by the investigating officer specified in such notice or such other person, to produce or deliver or otherwise furnish to him the original or a copy of any document in his possession or under his control or to which he may reasonably have access (not being a document readily available to the public) which, in the opinion of the investigating officer specified in such notice or such other person, may be relevant to such investigation or proceedings; for the purposes of this paragraph the investigating officer specified in such notice or such other person shall have authority to administer any oath or take any affirmation;

(e) the person in charge of any public body or any department, office or establishment of any public body to produce or furnish to the investigating officer specified in such notice any document or a copy, certified by the person in charge, of any document which is in his possession or under his control or to which he may reasonably have access (not being a document readily available to the public);

(f) the manager of any bank to give to the investigating officer specified in such notice copies of the accounts of such person or of his spouse, parents or children at the bank as shall be named in the notice.”

18.  Subsection (2) provides that, without prejudice to the generality thereof, the powers conferred by subsection (1)(d) include the power to require information from, and to require the attendance for the purpose of answering questions of –

“(a) any person, or any employee of any person, who has acted for or is acting for any party to any particular land or property transaction; and

(b) any person, or any employee of any person, who was concerned in the passing of any consideration, brokerage, commission or fee, or in the clearing or collection of any cheque or other instrument of exchange, respecting any particular land or property transaction,

as to any of the following matters, that is to say­

(i) the full names (including aliases) and addresses of any of the persons referred to in paragraphs (a) and (b) and any other information in his possession which may be helpful in identifying or locating any such person;

(ii) any consideration, brokerage, commission or fee paid or received in respect of or in connection with any such land or property transaction; and

(iii) the terms and conditions of any such land or property transaction.”

19.  Service of subsection (1) notices may be, subsection (3) provides, personal or by registered post at the subject’s last known place of business or residence.

20.  Subsection (4) is important.  It reads:

“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 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.”

21.  Finally, subsection (5) provides that wilfully making a false statement in answer to a subsection (1) notice is an offence punishable by a fine of $20,000 and one year’s imprisonment.

22.  As we have seen, subsection (4) calls for compliance with subsection (1) notices “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”.  Section 4 of the Inland Revenue Ordinance is headed “Official secrecy”, and reads:

“(1) Except in the performance of his duties under this Ordinance, every person who has been appointed under or who is or has been employed in carrying out or in assisting any persons to carry out the provisions of this Ordinance shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person that may come to his knowledge in the performance of his duties under this Ordinance, and shall not communicate any such matter to any person other than the person to whom such matter relates or his executor or the authorized representative of such person or such executor, nor suffer or permit any person to have access to any records in the possession, custody or control of the Commissioner of Inland Revenue.

(2) Every person appointed under or employed in carrying out the provisions of this Ordinance, shall before acting under this Ordinance take and subscribe before a commissioner for oaths an oath of secrecy in such form as the Board of Inland Revenue may specify.

(3) No person appointed under or employed in carrying out the provisions of this Ordinance shall be required to produce in any court any return, document, or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance, except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance.

(4) Notwithstanding anything contained in this section, the Commissioner or any officer of the Inland Revenue Department authorized by the Commissioner in that behalf may communicate any matter which comes to his knowledge, including a copy of any return, accounts or other document submitted to him in connection with this Ordinance –

(a) to the Commissioner of Rating and Valuation, to the Collector of Stamp Revenue, or to the Estate Duty Commissioner, or

(b) (Repealed 12 of 1999 s. 3)

(c) to the Secretary for Justice, or any public officer authorized by him, for the purpose of reporting under section 68(5) an appeal to the Board of Review, or

(d) to any person appointed under or employed in carrying out the provisions of the Business Registration Ordinance (Cap. 310), as regards any matter required to be notified to the Commissioner pursuant to section 8 of that Ordinance by the person submitting such return, accounts or other document.

(5) Notwithstanding anything contained in this section, the Commissioner may permit the Director of Audit or any officer of that department duly authorized by the Director of Audit in that behalf to have such access to any records or documents as may be necessary for the performance of his official duties. The Director of Audit or any officer so authorized shall be deemed to be a person employed in carrying out the provisions of this Ordinance for the purpose of subsection (2).

(6) Notwithstanding anything contained in this section, where the Commissioner is of the opinion that any tax deemed to be in default under the provisions of section 71(1) has for the time being become irrecoverable, he may communicate to the Financial Secretary the names and descriptions of the persons charged with such tax together with particulars of the tax in default.”

23.  Coming back to the POBO, mention should also be made of s.15.  It deals with the extent to which legal professional privilege is abrogated for POBO purposes and the extent to which it is maintained for those purposes.  The details of the balance struck are set out in the section.

Principle of legality

24.  Is s.14(4), taken in context of course, to be interpreted to mean that the privilege against self-incrimination has been abrogated in regard to compliance with s.14 notices?  This brings us to the principle of legality, which is an important canon of statutory construction or, if one prefers, interpretation.  By virtue of the principle of legality, human rights and fundamental principles of law, even where derogable, cannot be overridden except by express words or necessary implication.

25.  It is argued on A’s behalf that the POBO neither contains any express words abrogating the right not to self-incriminate nor entails any necessary implication that it is abrogated.  For the Commissioner it is argued that the POBO contains express words abrogating the right not to self-incriminate or at least entails the necessary implication that it is abrogated.  Those are the rival stances, and each side has made detailed submissions in support of its stance.

26.  The Commissioner places heavy reliance on the determination of the Appeal Committee in Chan Sze Ting v. HKSAR (1997-98) 1 HKCFAR 46 whereby it was held that s.13(3) of the POBO (which A accepts is at least in its syntax quite similar to s.14(4)) abrogated the right not to self-incriminate.  A asks us not to follow that determination.  Although only a determination of the Appeal Committee refusing leave to appeal rather than a judgment of the Court itself deciding an appeal, the determination in Chan Sze Ting’s case is worthy of respect, not least because the Appeal Committee was so strongly composed (i.e. by Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ).

27.  A says that Chan Sze Ting’s case can no longer be treated as correct because the determination did not address the principle of legality.  This, A says, is perhaps unsurprising since the determination pre-dates most of the significant decisions on that principle. As to that observation, the Commissioner points to Lord Hoffmann’s statement in R(Morgan Grenfell) v. Special Commissioners of Income Tax [2003] 1 AC 563 at para. 8 that the principle can be traced back at least to Stradling v. Morgan (2 Eliz I) 1 Plowden 199 decided by the Court of Exchequer in 1560.  And we do not think that the Appeal Committee could possibly have been wholly unaware of the principle or forgotten all about it.

28.  All of that said, we think that it is also true to say that the full strength of the principle may not have been appreciated until the House of Lords’ decision in Regina v. Home Secretary ex parte Simms [2000] 2 AC 115.  It is true that the High Court of Australia had, by the joint judgment of Mason CJ and Brennan, Gaudron and McHugh JJ in Coco v. The Queen (1993) 179 CLR 427, pointed out (at p.437) that the principle must be understood as a requirement of some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of the basic right, freedom or immunity concerned but has also determined upon its abrogation or curtailment.  But it was left to Lord Hoffmann expressly to identify and warn of the risk that the principle guards against.  This is the risk that the full implications of the unqualified meaning of general or ambiguous words may have passed unnoticed in the democratic process.  His Lordship sounded this warning (at p.131E) in Simms’s case which ante-dates Chan Sze Ting’s case.

29.  The principle of legality is meant to guard against the risk that the full implications of general or ambiguous statutory language said to have abrogated or curtailed fundamental rights or freedoms went unnoticed by the legislature.  So it is essential to have that risk at the forefront of one’s mind when applying the principle.  We think it fair to say that this was probably not so well appreciated before Simms’s case as it is now.

Privilege against self-incrimination abrogated as a matter of interpretation

30.  It is argued on the Commissioner’s behalf that the words used in s.14(4) are specific rather than general because they expressly provide for one but only one qualification to the requirement to comply with the terms of a s.14(1)(d) notice notwithstanding any other Ordinance or rule of law to the contrary, that qualification being official secrecy under the Inland Revenue Ordinance, Cap.  112.

31.  The language of s.14(4) of the POBO is not as plain as that of, for example:  sections 145(3A) and 152A(5) of the Companies Ordinance, Cap.32; s.33(1) of the Theft Ordinance, Cap. 210; s.16 of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382; s.3(11) of the Organized and Serious Crimes Ordinance, Cap. 455; s.8(6)(a) of the Official Secrets Ordinance, Cap. 521; and sections 146(18), 148(6), 149(6), 151(7), 152(5), 165(8), 179(16), 184(4), 186(6), 219(4), 253(4), 254(8) and 359(4) of the Securities and Futures Ordinance, Cap.571.  Nevertheless we consider the language of s.14(4) clear enough when taken in the historical context of the advent of the ICAC as a vital body invested with extraordinary investigative powers.  Just about every thinking person in Hong Kong knew that the choice had been made to invest the ICAC with investigative powers that impacted upon fundamental rights.  As Lord Bingham of Cornhill pointed out in R(Quintavalle) v. Secretary of State for Health [2003] 2AC 687 at p.695E, a statute is to be read as a whole and “in the historical context of the situation which led to its enactment”.

32.  In our judgment, the intent to be imputed to the legislature, from the words it used and the context in which those words were used, is an intent to abrogate the privilege against self-incrimination in regard to compliance with s.14 notices.  We so construe s.14.

Such abrogation is constitutional

33.  That brings us to A’s contention, disputed by the Commissioner, that such abrogation is unconstitutional.

34.  At the time when s.14 was enacted, the law-making power of Hong Kong’s legislature the Legislative Council was the unqualified power under art VI(1) of the Hong Kong Letters Patent to “make laws for the peace, order and good government of the Colony”.  It is true that the Full Court, the predecessor to the Court of Appeal, had said in R v. Ibrahim (1913) 8 HKLR 1 at p.18 that if the Legislative Council purported to pass any enactment beyond the scope of the Letters Patent, the courts “would have no hesitation in pronouncing it bad”.  But as the Privy Council said in Reil v. The Queen (1885) 10 App Cas 675 at p.678 and repeated in Croft v. Dunphy [1933] AC 156 at p.164, words like “peace, order and good government” authorize “the utmost discretion of enactment”.  They confer, as their Lordships put it in Rediffusion (Hong Kong) Ltd v. Attorney General [1970] HKLR 231 at p.244, “law-making power … in the widest possible terms”.  So until the advent of the Bill of Rights on 8 June 1991 there was little real scope for the exercise in Hong Kong of the judicial power of constitutional review by which legislation incompatible with the constitution is struck down.

35.  On 8 June 1991 the Hong Kong Bill of Rights Ordinance, Cap. 383, (“the HKBORO”) came into effect.  Part II of the HKBORO consisted of the Bill of Rights which joined the Letters Patent and the Royal Instructions to become one of pre-handover Hong Kong’s three constitutional instruments.  The Bill of Rights reproduces almost word-for-word the International Covenant on Civil and Political Rights.  Section 3 of the HKBORO repeals all pre-existing legislation inconsistent with the Bill of Rights.  The Bill of Rights was, upon coming into effect, entrenched against repeal or derogation.  This was because the Letters Patent were amended on 8 June 1991 by the addition to art. VII of a new paragraph, numbered (3), which qualified the power under para.(1) to make laws for “the peace, order and good government” of Hong Kong.  The qualification was a prohibition against the Legislative Council making any law “that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with the International Covenant on Civil and Political Rights as applied to Hong Kong”.  And the Bill of Rights is the embodiment of that Covenant’s application to Hong Kong.  Upon the handover on 1 July 1997 the Letters Patent went but our constitution the Basic Law came into force.  And the Bill of Rights is now – as it has been since then – entrenched by art.39 of the Basic Law.

36.  In its present form, s.20 of the POBO reads:

“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 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;

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

In that form, the section was introduced by the Prevention of Bribery (Miscellaneous Provisions)(No.2) Ordinance 1996 (“The 1996 Ordinance”) which repealed the previous version of the section which had read:

“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) and (b) may be adduced in evidence and made the subject of comment by the court and the prosecution.”

37.  The argument that the abrogation of the privilege against self-incrimination in regard to compliance with s.14 notices would be unconstitutional proceeds, first of all, on the footing that even in its present form introduced by the 1996 Ordinance, s.20(a) permits cross-examination of a defendant on any inconsistency between her or his testimony and anything compelled under s.14 including s.14(1)(d) answers.  Cross-examination on inconsistency between testimony and compelled material would be what the learned author of McWalters on Bribery and Corruption in Hong Kong, 2^nd ed. (2010) rightly called (in footnote 23 at p.530) “a form of direct use”.  Direct use is to be contrasted with derivative use, by which we mean use of material which compelled material had led investigators to find or had helped them to find.

38.  There would be no point at all to s.14 or to the abrogation of the privilege against self-incrimination in regard thereto if derivative use cannot be made of material compelled under that section.  Derivative use is plainly necessary and a rational and proportionate response to such necessity. It is constitutional.

39.  That leaves the question of direct use. 

40.  It is argued on behalf of the Commissioner that s.20(a) is exhaustive as to what material compelled under s.14 can be put to direct use.  On A’s behalf, it is argued that s.20(a) is not exhaustive.  At first blush, it appears odd that the recipient of a s.14 notice would contend for a construction of s.20(a) which is less protective of the individual than the construction of that section contended for by the Commissioner.  In the course of the able argument which he presented for A, it was put to Mr Richard Gordon QC that he was “fattening up s.20(a) for the slaughter”.  And he accepted that.  The exercise is understandable, for the less that legislation limits what compelled material can be put to direct use, the easier it becomes to attack the constitutionality of direct use.  Mr Gordon does not put all his eggs in that basket.  He says that direct use would be unconstitutional even if s.20(a) is as “lean” as the Commissioner says.

41.  It would be pointless to have a provision like s.20 if direct use generally were permitted anyway.  In our judgment, s.20 is exhaustive as to what material compelled under s.14 can be put to direct use, whether in proceedings under the POBO or in other proceedings.  The question is, after all, one of what use can be made of compelled material rendered compellable by the abrogation of a fundamental right.  As a matter of statutory interpretation, no such use is to be viewed as permitted unless it is provided for expressly or by necessary implication.  There is no relevant implication. The only express provision is s.20.  It is exhaustive – obviously so even on its plain wording and before the principle of legality is taken into account.  In our judgment, the only direct use which s.20(a) addresses is cross-examination on any inconsistency between a defendant’s testimony and a statutory declaration or statement in writing furnished by her or him pursuant to s.14(1)(a), (b) or (c).  There can be no such, or any other, direct use of s.14(1)(d) answers.  The cross-examination on s.14(a), (b) or (c) statutory declarations or statements is a limited form of cross-examination.  Is it proportionate?

42.  The position at common law is that in criminal proceedings any inconsistency in a witness’s previous statement goes only to the witness’s reliability and a previous inconsistent statement cannot be treated as evidence of the truth of its contents.  Section 14 of the Evidence Ordinance, Cap. 8, provides that where a previous inconsistent statement is proved for the purposes of cross-examining a witness, the court may “make such use of it for the purposes of the trial or hearing as it may see fit”.  In R v Birch (1924) 18 Cr App R 26 the Court of Criminal Appeal, dealing with the equivalent words in the English legislation, said that they did not entitle the judge to rule that the previous inconsistent statement was evidence of the truth of its contents.  In England the common law rule was reversed by s.119 of the Criminal Justice Act 2003 which provides that a previous inconsistent statement is admissible as evidence of any matter stated in it of which oral evidence would be admissible.  No such legislation has been enacted in Hong Kong.  Indeed the Law Reform Commission here has, in its Consultation Paper on “Hearsay in Criminal Proceedings” of November 2005, expressly recommended against any such legislation, doing so in these terms in Recommendation 38 at pp. 164-165:

“We recommend no changes to the existing law that makes prior inconsistent statements of witnesses inadmissible for the truth of their content. However, this should be reconsidered if and when there is an established general practice by law enforcement agencies of recording witness statements by reliable audio-visual means”.

43.  Of course the reality in practice may very well be what the Law Commission in Britain said in its Consultation Paper of 19 June 1997, ref. LC 24.5 in para. 10.89 at p.165:

“The inconsistent statement is supposed to reflect only on the witness's credibility, and therefore the fact-finders may not treat it as evidence directly on the facts in issue. It may be argued that the first statement can only cancel out the oral testimony because rejection of the testimony does not entail acceptance of the statement. Cross and Tapper, rightly in our view, describes this argument as “simply another instance of the pseudo-logic occasionally indulged in by lawyers”.  Where it is possible (on the basis of other evidence, or the witness’s response under cross-examination) to treat the earlier statement as the true one, we do not see why the fact-finders should not do so: if jurors or magistrates are trusted to decide that a witness has lied throughout, and to disregard that witness's testimony, why should they not be free to decide that the witness's previous statement was correct, and to take as reliable the parts of the testimony that they find convincing?  As with other instances of the distinction between a statement going to credit and going to the issue, it may be doubted whether fact-finders appreciate or observe the distinction.”

44.  Nevertheless, we feel unable to pronounce the limited form of cross-examination permitted by s.20(a) unconstitutional.  It is consistent with the common law position in regard to cross-examination on previous inconsistent statements.  We do not forget that the previous material involved here is compelled material.  But we must be true to our conclusion that the compulsion is constitutional.  In regard to such cross-examination, it is of course to be remembered that, as the Court of Criminal Appeal held in R v. Treacy (1944) 30 Cr App R 93, where a defendant’s previous statement is inadmissible, it cannot be made admissible simply by putting it to her or him in cross-examination.  Treacy’s case was applied by the Privy Council in Wong Kam-ming v. R [1980] A.C. 247.

45.  The other form of direct use permitted by s.20 is the use permitted by paragraph (b) of that section.  There is, we think, a crucial difference between commenting on a defendant not entering the witness-box and commenting on her or his not having complied with a s.14 notice.  There is no legal obligation on a defendant to enter the witness-box, but there is a legal obligation on the recipient of a s.14 notice to comply with it.  We feel unable to pronounce comment as permitted by s.20(b) unconstitutional.

46.  For the abrogation of the privilege against self-incrimination in regard to s.14 notices to operate in a coherent manner true to such abrogation, the whole of s.20 is, in our judgment, to be viewed as a rational and proportionate response to a necessity.  The whole of s.20 is therefore constitutional.

47.  It was always plain that derivative use is unobjectionable.  But Mr Gordon’s submissions on direct use merited – and have received – anxious consideration.  Having concluded that the POBO as correctly interpreted does not permit any disproportionate direct use of compelled material, we would just say this.  If the POBO had purported to permit any disproportionate direct use of such material, then it would be such use, and not the abrogation of the privilege against self-incrimination in regard to s.14 notices, that would fall to be pronounced unconstitutional.

48.  As it is, however, such abrogation is constitutional.  So is derivative use.  And so is the direct use permitted by s.20.

A word to add on direct use

49.  There is one more word to add on direct use. Even though a certain line of cross-examination or a certain type of comment is not immediately shut out by the law, such cross-examination and comment is still subject to the judicial duty which Chief Justice Li dealt with in Secretary for Justice v. Lam Tat Ming (2000) 3 HKCFAR 168 at pp. 178J-179A and was also dealt with in Kissel v. HKSAR (2010) 13 HKCFAR 27 at paras 200-205.  This is the court’s overriding duty to ensure a fair trial, for the discharge of which duty the court is invested with a judicial discretion to exclude even otherwise permissible courses if excluding them is necessary in order to secure a fair trial.  Where any occasion for its exercise arises, this judicial discretion can – and should – be exercised in regard to direct use such as the present appeal concerns.

Conclusion

50.  In our judgment: (i) the privilege against self-incrimination has been abrogated in regard to compliance with s.14 notices; (ii) such abrogation is constitutional; (iii) so is derivative use; and (iv) so is the direct use permitted by s.20. 

51.  Accordingly we would dismiss this appeal.

52.  As for costs, we propose that they be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar. 

53.  Finally, we thank counsel on both sides for their valuable assistance.

Mr Justice Ribeiro PJ:

54.  On 14 March 2009, the appellant was served with a notice issued on behalf of the Commissioner of the Independent Commission Against Corruption (“ICAC”) requiring him to answer questions to be put to him by an ICAC officer in connection with an ongoing corruption investigation.

55.  It had been issued under section 14(1)(d) of the Prevention of Bribery Ordinance (“POBO”)[1] with the authorization of the Court obtained upon the Commissioner’s ex parte application.

56.  The notice stated that a named person was suspected of having committed offences under POBO and that the Commissioner believed the appellant to have information relevant to the investigation.  It required him to answer orally on oath or affirmation questions relating to transactions and activities involving certain named companies and on “such other matters relevant to the said investigation” as might arise from information he provided.  He was also required to produce documents which the investigating officer considered relevant.  The notice contained a warning that failure to comply without reasonable excuse constituted an offence punishable by a fine of $20,000 and imprisonment for one year.

57.  Prior to answering any questions, the appellant brought proceedings seeking a declaration that he is entitled to “assert the 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 the information and documents sought.  Alternatively, he seeks an order setting aside the notice and the Court’s order authorizing its issue, contending that the POBO sections on which they were based violate Articles 10 and 11 of the Bill of Rights and Article 39 of the Basic Law.

58.  In a concise and comprehensive judgment, D Pang J[2] refused the application.  His Lordship then certified two points of law of great and general importance in the following terms:

“(1) Whether the subject of an Order or Notice under section 14(1)(d) of [POBO] may lawfully assert the privilege against self-incrimination as a ground for failing or refusing to comply with such Order and/or Notice? And

(2) Whether the legislative scheme under sections 14 and 20 of [POBO] is, insofar as it applies to the subject of an Order and/or Notice under section 14(1)(d), incompatible with Articles 10 and 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) and/or Article 39 of the Basic Law?”

59.  The Appeal Committee granted leave to appeal on those points of law which are the subject-matter of the present appeal.

A. The statutory scheme and the issues in the present appeal

60.  As indicated above, section 14(1)(d) is of immediate importance.  It has, however, to be read in the context of the preceding paragraphs (a), (b) and (c) which provide as follows:

“(1) Where on an application under subsection (1A) the Court of First Instance is satisfied that there are reasonable grounds for suspecting that an offence under this Ordinance has been committed it may make an order authorizing the Commissioner by a notice in writing to require-

(a) such person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing, enumerating-

(i) the property, being property in such categories or classes of property, movable or immovable, as may be specified in such notice, belonging to or possessed by, or which at any time during the 3 years immediately preceding the date of such notice or during such shorter period as may be specified in such notice belonged to or was possessed by, such person, his agents or trustees, specifying in respect of each property enumerated whether it is or was possessed jointly (and, if so, with whom) or severally; and specifying the date upon which, and the person from whom, each such property was acquired and whether by purchase, gift, bequest, inheritance or otherwise, and, where it was acquired by purchase, specifying the consideration paid therefor; and in respect of any property enumerated which has been disposed of, whether by sale, gift or otherwise, at any time during the 3 years immediately preceding the date of the notice or such shorter period as aforesaid, specifying how and to whom the same was disposed of and, where it was disposed of by sale, specifying the consideration given therefor;

(ii) all expenditure incurred by such person in respect of himself, his spouse, parents or children with regard to living expenses and other private expenditure during any period specified in such notice (not, however, being a period commencing earlier than 3 years from the date of the notice);

(iii) all liabilities incurred by such person, his agents or trustees, at such time or during such period as may be specified in such notice (not, however, being a time or a period commencing earlier than 3 years from the date of the notice), and specifying in respect of each such liability whether it was incurred jointly (and, if so, with whom) or severally; 

(b)   such person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing of any money or other property sent out of Hong Kong by him or on his behalf during such period as may be specified in the notice; 

(c)   any other person to furnish to the investigating officer specified in such notice a statutory declaration or, as the Commissioner sees fit, a statement in writing enumerating the property, being property in such categories or classes of property, movable or immovable, as may be specified in such notice, belonging to or possessed by him and further stating, in respect of each such property, the date upon which and the person from whom it was acquired, if the Commissioner believes that such information may assist the investigation or proceedings;  

(d) any other person whom the Commissioner believes to be acquainted with any facts relevant to such investigation or proceedings to furnish to the investigating officer specified in such notice all information in his possession or to which he may reasonably have access (not being information readily available to the public) respecting such matters as are specified in the notice or, as the Commissioner sees fit, to appear before the investigating officer specified in such notice or such other person specified in the notice and to answer orally on oath or affirmation any questions relevant thereto; and, on demand by the investigating officer specified in such notice or such other person, to produce or deliver or otherwise furnish to him the original or a copy of any document in his possession or under his control or to which he may reasonably have access (not being a document readily available to the public) which, in the opinion of the investigating officer specified in such notice or such other person, may be relevant to such investigation or proceedings; for the purposes of this paragraph the investigating officer specified in such notice or such other person shall have authority to administer any oath or take any affirmation ...” 

61.  As was pointed out in P v Commissioner of Independent Commissioner Against Corruption:[3] “The person referred to in section 14(1)(a) and (b) is a suspect whilst the person referred to in (c) [and (d)] is a non-suspect.”  This is of some relevance since the scope of the information that may be required of a suspect under paragraphs (a) and (b) is considerably narrower than that which may be required of a non-suspect, particularly under paragraph (d).  In the present case, the notice addresses the appellant as a non-suspect and requires him to supply information pursuant to paragraph (d). 

62.  The next important provision is section 14(4) which states:

“Every person on whom a notice under subsection (1) is served shall, notwithstanding the provisions of other Ordinance [sic[4]] 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 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 $20000 and to imprisonment for 1 year.”

63.  The first issue which divides the parties concerns the proper construction of this provision.  While the Commissioner contends that it abrogates the common law privilege against self-incrimination, the appellant seeks a declaration to the contrary.

64.  Next, section 20(a) requires examination.  It is in the following terms:

“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;...”

65.  Its true construction gives rise to the second issue between the parties.  If section 14(4) is held (contrary to the appellant’s submission) to abrogate the privilege against self-incrimination, the question arises as to what use may lawfully be made of the answers obtained from the person on whom the section 14 notice has been served (referred to in this judgment as “the subject”).  The Commissioner’s position is that section 20(a) has the effect of prohibiting direct use of those answers, making them inadmissible in evidence against the subject, save to the extent expressly permitted by section 20(a).  The appellant argues that section 20(a), properly construed, is merely permissive and effects no use prohibition of any kind.

66.  If section 14(4) does abrogate the privilege against self-incrimination, subject to such use restrictions as may exist by virtue of section 20(a), the constitutionality of the infringement constitutes the third issue.  The Commissioner argues that abrogation and the permitted use are constitutionally justified as legitimate, rational and proportionate.  The appellant argues to the contrary.

B. Construction of section 14(4)

67.  Mr Richard Gordon QC, appearing for the appellant,[5] laid great emphasis on the need to apply the principle of legality when construing any provision said to impinge upon a fundamental right.  Application of that principle, he submitted, compelled the conclusion that what he called the “general words” of section 14(4) were insufficient to result in negation of the privilege against self-incrimination.

68.  In a well-known passage in R v Secretary of State for the Home Department, Ex parte Simms,[6] Lord Hoffmann explained the principle of legality and its rationale as follows:

“Parliamentary 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. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

69.  A similar view was expressed by the Australian High Court in Coco v The Queen:[7]

“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”

70.  That the principle of legality is applicable in construing section 14(4) was accepted in principle by the Commissioner.  This was also effectively acknowledged by the Appeal Committee in Chan Sze Ting v HKSAR,[8] which, when dealing with POBO section 14 itself, held that there is a strong presumption against interpreting a statute as taking away the privilege and that, for such a conclusion to be reached, the abrogation had to be effected expressly or by necessary implication.

71.  The question is therefore whether section 14(4) unmistakably, expressly or by necessary implication, abrogates the appellant’s privilege against self-incrimination.

72.  In my view, it plainly does:

(a) Section 14(4) relates to “every person on whom a notice under subsection (1) is served”.  It is therefore addressing the position of a person who is required to provide information under the relevant paragraph(s) of section 14(1) as specified in the notice.

(b) Section 14(4) imposes an obligation on the subject to “comply with the terms of that notice”, making it a criminal offence to fail or neglect to do so without reasonable excuse.

(c) Crucially for present purposes, 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).”

(d) 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. 

(e) 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.

(f) It follows that in compelling compliance with a section 14 notice notwithstanding other Ordinances or rules of law to the contrary, section 14(4) necessarily removes the immunity from answering questions which the privilege against self-incrimination would otherwise provide. 

(g) 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. 

73.  The Ordinance goes on in section 15(1) to provide for a further exception from section 14(4)’s general exclusion of contrary rules by stipulating, in relation to legal professional privilege, that:

“Save as is provided in this section, nothing in this Ordinance shall require the disclosure by a legal adviser of any privileged information, communication, book, document or other article.”

The subsections in section 15 which follow seek to restrict to some degree the normal reach of that privilege.  

74.  As Ms Clare Montgomery QC, appearing for the Commissioner[9] points out, section 15’s express preservation of legal professional privilege from any potential infringement resulting from the operation of provisions elsewhere in the Ordinance implicitly acknowledges that section 14(4) would otherwise take effect by abrogating legal professional privilege, being another rule of law “to the contrary”.

C.  Construction of section 20(a)

C.1  Use restrictions

75.  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.  An example is the provision discussed in HKSAR v Lee Ming Tee,[10] namely, section 145(3A) of the Companies Ordinance[11] which provides:

“A person is not excused from answering a question put to him under this section by an inspector on the ground that the answer might tend to incriminate him but, where such person claims, before answering the question, that the answer might tend to incriminate him, neither the question nor the answer shall be admissible in evidence against him in criminal proceedings other than proceedings [concerning falsity of the answer ].”

Many more examples can be found.[12]

76.  The common pattern is for the statute (having abrogated the privilege) to prohibit or restrict “direct use”, that is, use of the compelled answers in criminal proceedings as evidence against the person from whom they were extracted (often excepting proceedings concerning falsity of the answers)[13]. Such a prohibition therefore excludes potentially self-incriminating evidence from being used in court. 

77.  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.[14]

78.  It is against this background that section 20(a) ought to be construed.  Does it, as the Commissioner submits, operate as a provision which restricts the admissibility and use that can be made of the compulsorily obtained material?  Or does it have no prohibitory function at all, as the appellant contends?  If it does operate as a use restriction, what is the scope of such restriction?

C.2   Is section 20(a) intended to impose a use prohibition?

C.2a “Permissive language”

79.  As Mr Gordon pointed out, section 20(a) does not employ the language of prohibition.  It 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;...”[15]

80.  The appellant’s submission is that if, contrary to his case, the privilege is held to have been abrogated by section 14(4), the use permitted by section 20(a) results in a massive invasion of a fundamental right since it imposes no restriction of any kind on the ICAC’s use of the compelled materials.  If the appellant’s proposition is correct, it would have a major, perhaps decisive, impact when constitutionality comes to be considered.

81.  It is true that, in contrast with sections in other Ordinances which expressly impose direct use prohibitions, section 20(a) uses wording which does not explicitly prohibit any use.  Instead, it specifies certain permitted uses of “any statutory declaration or statement in writing” furnished in compliance with a section 14 notice.  However, it does not follow from this that Mr Gordon’s construction should be accepted. 

82.  The very fact that it was considered necessary to confer positively such a statutory permission provokes these questions: If, as Mr Gordon suggests, the statutory scheme permits the compelled material be to put to any use at all – including direct use as incriminating evidence admissible at trial – why should there be any need to spell out in section 20(a) the permitted use consisting merely of cross-examination on previous inconsistent statements? Does that not suggest that an underlying prohibition exists which the permissive language is needed to qualify?

C.2b Section 20(a) ambiguous

83.  The drafting of section 20(a) has plainly created an ambiguity.  The approach to statutory construction in such cases was laid down in HKSAR vCheung Kwun Yin.[16]  The Court adopts a purposive interpretation, construing the statutory language having regard to its context and purpose.[17] By way of elaboration Li CJ[18] stated:

“13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. See Town Planning Board v Society for the Protection of the Harbour Limited at p13I-J and A-G v Prince Ernest Augustus of Hanover [1957] AC 436 at p 461.

14. 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. See PCCW - HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at p351F-J and Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at p15A-H.”

C.2c The POBO 1970 and the 1996 amendment

84.  Adopting that approach to construction, a comparison of the current version of section 20(a) with the version which existed prior to 1996 supplies the context and illuminates the purpose of the current version.  It provides strong support for the view that the current version is intended to impose a direct use prohibition.

85.  The Ordinance was originally enacted as POBO 1970 and came into operation on 14 May 1971.  Section 14 notices compelling disclosure of information could be issued against suspects and non-suspects on the authority of the Attorney General, without any judicial scrutiny.  Prior to 1974, failure by a non-suspect to comply with such a notice was made an offence, but the sanction against a suspect who failed to comply was confined to adverse comment by the court and the prosecution.[19]

86.  Under section 14(1)(a) and (b) of POBO 1970, a suspect could be required to furnish a statutory declaration or statement in writing enumerating his assets, his liabilities and his personal and family expenditure, giving dates and specified details of acquisition or disposal, and so forth.  A statutory declaration or statement in writing could similarly be obtained against a non-suspect under section 14(1)(c).  Furthermore, under section 14(1)(d), a non-suspect could be required much more broadly to answer questions orally put to him about matters specified in the notice.  He could also be required to produce relevant documents.

87.  Section 14(4) imposed a duty on “every person on whom a notice under subsection (1) [was] served” to comply with the notice “notwithstanding the provisions of any other law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance”.  It therefore abrogated the privilege against self-incrimination.

88.  Thus far, it will be evident that the 1970 provisions only differed in relatively minor ways from those found in the present POBO.  However, section 20(a) in the 1970 Ordinance was significantly different.  It read as follows:

“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 on him under paragraph (a) or (b) of subsection (1) of section 14 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...” (Italics supplied)

89.  The 1970 version therefore expressly permitted the compelled declaration or statement to be adduced in evidence in criminal proceedings against the subject of the notice, whether or not he tendered himself as a witness at his trial.  If he did choose to enter the witness-box, it expressly permitted the declaration or statement to be used as a previous inconsistent statement in cross-examination.

90.  It is of central importance that in the present version of section 20(a), the words in the1970 version allowing such direct use have been deleted by amendment, while the provisions permitting use of the compelled documents for the purpose of cross-examination on credit have been retained.  That deletion was effected by the Prevention of Bribery (Miscellaneous Provisions) Ordinance 1996.[20]  Comparison of the two versions therefore shows that there was a reversal of legislative policy.  Compulsorily obtained materials are no longer permitted to be used as evidence against the person from whom they were extracted.  In other words, the statutory intention is for section 20(a) to impose a direct use prohibition save to the limited extent allowed by the permissive provisions retained.

C.2d The legislative history of the 1996 amendment

91.  The approach to statutory interpretation approved in HKSAR v Cheung Kwun Yin,[21] allows the purpose of section 20(a) to be further elucidated by having regard to the Attorney General’s statement in the Legislative Council concerning the 1996 amendment and to the contents of the report which, as he explained, the amendment sought to implement.

92.  On 8 June 1991, the Hong Kong Bill of Rights Ordinance[22] (or “BORO”) was enacted.  In December 1994, the ICAC Review Committee published a Report which stated in relation to section 20 as follows:

“12.21 This section provides for the admission of evidence of statutory declarations and written statements furnished by the accused under section 14(1)(a) or (b). It also enables the court and the prosecution to comment on the failure of the accused to comply with the terms of a notice served on him under section 14(1)(a) or (b) ...

12.22 Our legal adviser 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. (Italics supplied)

12.23 We suggest that the Government look further into this proposal.”

93.  Publication of the Prevention of Bribery (Miscellaneous Provisions) (No 2) Bill 1995 then followed.  It proposed the repeal of the 1970 version of section 20 and its replacement with the current version.  In moving the Bill’s second reading on 18 October 1995, the Attorney General stated that the purpose of the Bill was to implement the recommendations of the ICAC Review Committee’s report.  The amendments, he explained, included those intended “to ensure that the legislation relating to the ICAC is consistent with the Bill of Rights Ordinance.”  Among the items listed in that context, was the following:

“The amendments will provide ... Fourth, that a statutory declaration or written statement made in compliance with a requirement under [POBO] will be admissible in evidence against the person who made it only if he gives evidence that is inconsistent with it.”

94.  The 1995 Bill was enacted on 18 July 1996 as the Prevention of Bribery (Miscellaneous Provisions) Ordinance 1996, replacing (among other provisions) the 1970 version of section 20 with our current version.

95.  In my view, taken together, the implicit indication contained in section 20(a) that an underlying use prohibition exists; the effect of its predecessor’s amendment in 1996; and the Attorney General’s statement in the Legislative Council, coupled with the ICAC Review Committee Report, establish conclusively that section 20(a) must be construed as imposing a direct use prohibition save to the extent expressly permitted by its terms.  In other words, although not clearly expressed, section 20(a) follows the well-established pattern of Ordinances which, having abrogated the privilege against self-incrimination, place a restriction on the use that can be made of the answers compulsorily obtained. 

96.  It should be emphasised that, properly construed, the direct use prohibition is general and not limited to proceedings under POBO.  The opening words of section 20(a), “In any proceedings against a person for an offence under this Ordinance”, must not be understood to limit the scope of the prohibition.  Rather, they identify and locate the limited instances of direct use which are still permitted, namely, the use envisaged in paragraph (a), a permitted use which only arises in proceedings under POBO.

C.3   The extent of the use restriction

97.  Section 20(a) does not exclude direct use altogether.  However, the direct use which continues to be permitted has a markedly narrow ambit, a highly important consideration when constitutionality comes to be examined.

98.  In the first place, it should be recognized that there is a complete direct use prohibition in relation to answers given in response to a notice issued under section 14(1)(d).  Thus, the appellant, who is the recipient of such a notice (and no other), is not at risk of his responses given in compliance being used directly as evidence to incriminate him if he should ever become a defendant in a criminal trial.

99.  This is 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 a 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.  The words “statutory declaration or statement in writing” in section 20(a) clearly refer only to materials which can be required by notices issued under section 14(1)(a), (b) or (c), where the identical words are used.

100.  This is not, as Mr Gordon seeks to suggest, merely a linguistic difference.  In paragraphs (a), (b) and (c), the scope of the intrusion is much less extensive than under paragraph (d).  Thus, under a section 14(1)(c) notice, the information which the subject may be required to furnish is confined to his enumerating the property within the classes specified in the notice “belonging to or possessed by him and further stating, in respect of each such property, the date upon which and the person from whom it was acquired.”  This is a narrowly focussed requirement for information relating solely to items of the subject’s own property and details of their acquisition. He can carefully compile his response in writing, with legal advice if necessary.  Notices under paragraphs (a) and (b) may require a wider range of information from the subject, but they are still essentially confined to written responses giving an account of the subject’s assets, liabilities and his personal and family expenditure over the preceding period of three years.

101.  In contrast, section 14(1)(d) notices are potentially far more wide-ranging in their scope, dealing with any subject-matter that the Commissioner may specify in the notice as matters believed to be relevant to the investigation.  They furthermore require the subject’s attendance for oral questioning.  Given that it was amended with a view to achieving consistency with the Bill of Rights, it is unsurprising that section 20(a) does not seek to permit direct use of the more intrusively obtained product of a section 14(1)(d) notice and confines direct use to the statutory declarations and statements in writing referred to in paragraphs (a), (b) and (c).

102.  The second major feature of section 20(a) which narrows its scope is the limitation of direct use to those occasions when the defendant decides to tender himself as a witness in POBO proceedings.  Unlike under the 1970 Ordinance, the prosecution may not itself adduce in evidence the materials obtained by statutory compulsion. 

103.  Every defendant is of course entitled to exercise his right of silence by declining to go into the witness-box.  That includes a defendant who has previously complied with a relevant section 14(1) notice.  Section 20(a) does not impinge upon that right.

104.  A defendant who chooses to give evidence subjects himself to cross-examination, waiving his right to silence.  It is only in such cases that section 20(a) comes into play and permits the prosecution to use the defendant’s section 14 statutory declaration or written statement, but only as a former statement adduced to challenge inconsistent evidence given viva voce in accordance with sections 13 and 14 of the Evidence Ordinance (set out in Section C.2a of this judgment).

C.4  Conclusion on the construction of section 20(a)

105.  For the foregoing reasons, my conclusion is that 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).[23]

D. Constitutionality of the statutory scheme

D.1  Approach to constitutional challenges

106.  How challenges to the constitutionality of a statutory provision should be approached was summarised by Sir Anthony Mason NPJ (in the context of a challenge to a section[24] reversing the onus of proof) in HKSAR v Lam Kwong Wai,[25] as follows:

“Our first task is to ascertain the meaning of section 20 according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the BOR. If that question is answered ‘Yes’, we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the Basic Law or the BOR and consequential invalidity. If invalidity could result, then it will be necessary to decide whether the validity of the section or part of it can be saved by the application of any rule of construction, severance of the offending part, reading down, reading in or any other remedial technique available to the Court.”

107.  The first task described by his Lordship involves establishing the meaning and effect of the statutory provisions under challenge.  In the present case, the parties have disputed the construction of the sections concerned and that dispute has been addressed in Sections B and C of this judgment.  I have concluded that on their true construction, section 14(4) of POBO overrides the common law privilege against self-incrimination enjoyed by persons served with section 14 notices and that section 20(a) imposes a general prohibition against direct use of the compelled material, subject to the exceptions expressly provided for, as discussed in Section C.4 above.

D.2  The constitutional protections invoked

108.  The next task is to determine whether the constitutional rights invoked as the basis of the challenge are encroached upon by the statutory provisions under challenge.

109.  In this connection, three Articles of the Bill of Rights are relevant, namely, Articles 10, 11(1) and 11(2)(g), although the appellant has (for good reason) only invoked the first two.  They are rights which have been given constitutional protection by Article 39 of the Basic Law[26] and materially provide as follows:

“Article 10 Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...”

Article 11 Rights of persons charged with or convicted of criminal offence

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality...

(g) not to be compelled to testify against himself or to confess guilt.”

110.  It is important to note the nature and reach of the constitutional protection provided by these Articles, and a comparison of the protection provided by Article 11(2)(g) with the protection conferred by the other two Articles is helpful. 

111.  In the context of the privilege against self-incrimination, Article 11(2)(g) operates in a qualitatively different way from Articles 10 and 11(1). It is concerned with establishing or entrenching such a privilege in favour of a defendant who is facing trial in a criminal court.  As pointed out in Lee Ming Tee,[27]Article 11(2)(g) confers a testimonial immunity on the defendant, namely, the right “not to be compelled to testify against himself or to confess guilt” in the determination of a criminal charge against him.  The privilege so established is plainly of a much narrower scope than the privilege at common law.   This is so since at common law, the privilege is a general immunity which every person has against being compelled to answer questions which may incriminate them.  It is not confined to cases where the person has been charged with or is actually being tried for a criminal offence.  It represents, as Lord Mustill pointed out in R v Director of Serious Fraud Office, ex p Smith,[28] the general entitlement of every citizen “to tell another person to mind his own business”.  However, it is clear that the common law privilege can be overridden by statute.[29]  So the importance of Article 11(2)(g) is that it entrenches the privilege against any statutory attempt to compel a person to give evidence and answer questions at his own criminal trial.

112.  Articles 10 and 11(1) function quite differently.  They do not establish or entrench any privilege.  Article 10 confers on a person faced with a criminal charge the constitutional right to a fair trial, and Article 11(1) guarantees the presumption of innocence.  In relation to an abrogated privilege against self-incrimination, these Articles come into play if use by the prosecution of the compelled answers or information constitutes a violation of those constitutional rights.  Whether such a violation arises depends on the nature and scope of the compelled information and the use to which it is put.  It is self-evident that these protections operate in a curial context.

113.  Koon Wing Yee,[30] provides an illustration.  The relevant statutory provisions[31] gave the Securities and Futures Commission investigatory powers and abrogated the privilege against self-incrimination, expressly making potentially self-incriminating answers admissible “for all the purposes of the Securities (Insider Dealing) Ordinance”.  In other words, the provisions permitted direct use of the subject’s compelled answers in proceedings against him in the Insider Dealing Tribunal, such proceedings having been held to be criminal in nature.  The question was “whether the direct use of the evidence by the Tribunal by virtue of s.33(6) of SFCO was a breach of the right to a fair trial guaranteed by art 10 of the [Bill of Rights].”[32]  The Court held that the questions asked “constituted a substantial intrusion into the privilege against self-incrimination” and that the compelled answers “formed an important element in the evidence relied upon by the Tribunal in the findings which it made against the respondents.”[33]  It concluded that the provisions permitting such direct use authorized “the obtaining of compulsory answers to questions which go to the very core of a case of insider dealing” and that this constituted a disproportionate and unjustifiable infringement of the right to a fair trial under Article 10.[34]

D.3  The appellant’s constitutional challenge

114.  As noted above, the appellant is the subject of a section 14(1)(d) notice seeking information in connection with an ongoing investigation into suspected corruption on the part of another person.

115.  The appellant’s constitutional challenge has been premised on the proposition that if (as I have held) section 14(4) overrides his privilege against self-incrimination, the answers he would be compelled to give may, by virtue of section 20(a), be directly used as self-incriminating evidence in criminal proceedings which may be brought against him.  It follows, so he argues, that this would constitute a violation of his right to fair trial under Article 10 or would undermine the presumption of innocence guaranteed by Article 11(1).  By way of remedy, he invites the Court to strike down “sections 14 and 20 of the POBO”.[35]

116.  The appellant’s challenge is untenable.  It is based on an erroneous construction of section 20(a).  For the reasons set out in Section C above, 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 only to the exception that direct use is permitted of a statutory declaration or statement in writing obtained under section 14(1)(a), (b) or (c), for the limited purposes specified.

117.  Far from section 20(a) permitting use of the appellant’s compelled answers as evidence against him in court, that section, properly construed, prohibits such direct use.  Accordingly, even if the appellant should in future face criminal charges  – there being at present no basis for thinking that this might in fact occur – he would not be at any risk of those answers being used in evidence against him in that prosecution.   Articles 10 and 11(1) are therefore not engaged in consequence of the abrogation of the privilege in his case. 

118.  The compulsory answers might of course be put to derivative use.  The Commissioner believes that they may yield information of assistance in the current investigation of the named suspect.  It is no doubt possible that lines of inquiry which the information opens up could lead to other persons, conceivably even the appellant, becoming suspects.  However, it is no part of the appellant’s case that such derivative use would be unconstitutional.   That is unsurprising since, in the light of Lee Ming Tee and Koon Wing Yee, such a challenge would have little prospect of success.

119.  I therefore conclude that the appellant’s constitutional challenge fails and that his appeal must be dismissed.

D.4   Constitutionality of section 20(a)

120.  Since section 20(a) is inapplicable, the constitutionality of its provisions need not be decided.  However, since this case has very largely been argued on the footing that section 20(a) is applicable and that its constitutionality is in question, I shall deal briefly with that issue.

121.  This Court has recognized that it is rational to equip the ICAC with special investigative powers for the legitimate purpose of suppressing corruption which poses a serious danger to society.  Thus, in P v Commissioner of Independent Commissioner Against Corruption,[36] Li CJ stated:

“Corruption is an evil which cannot be tolerated. For the purpose of combating corruption, special powers of investigation have been conferred by statute on the Independent Commission Against Corruption (the ICAC). These powers are necessary as crimes of corruption are inherently difficult to investigate and prove.”

122.  And in HKSAR v Ng Po On,[37] I stated in respect of section 14 of POBO:

“The aim of the Ordinance is the suppression of corruption. The legitimacy and importance of that societal objective is obvious. Section 14 confers special powers on the ICAC to investigate and secure evidence of corruption with a view to its prosecution and suppression. Making non-compliance with section 14 notices an offence (which provides for a reverse onus) is a rational means of enforcing those investigative and prosecutorial powers.”

123.  It follows that section 14(4) and section 20(a) satisfy the legitimacy and rationality requirements of the proportionality test.  This was accepted by Mr Gordon.  One therefore proceeds to examine whether section 14(4)’s abrogation of the privilege against self-incrimination and the uses of the compelled responses permitted under section 20(a) constitute a means of pursuing that legitimate objective which involves no greater an inroad than necessary upon the rights protected by Articles 10 and 11 of the Bill of Rights.

124.  As pointed out in Section D.2 above, in the case of an abrogated privilege against self-incrimination, whether or not the right to a fair trial and to the presumption of innocence protected by those Articles are violated depends upon the nature and scope of the information extracted by statutory compulsion and the use to which such information is put.

125.  Section 20(a), expressly regulates those matters. As discussed in Section C.3 of this judgment, a section 14(1)(c) notice only requires the subject to set out in a statutory declaration or statement in writing specified classes of property belonging to or possessed by him, with details stating when and from whom the property was acquired.  The use to which that declaration or statement may be put is also spelt out: it can only be used as a former statement which may be put to the defendant in cross-examination should he choose to testify and if he should give evidence inconsistent with it. Both the required information and permitted use are therefore narrowly focussed and to be supplied in writing, allowing the subject to seek legal advice if thought desirable.  Even the aforesaid limited use will not arise if the subject (turned suspect) exercises his right to decline to give evidence.

126.  In my view, given the narrowness of these restrictions, the permitted use of the information compulsorily obtained does not undermine the fairness of the trial viewed in the round.  Nor does it weaken the presumption of innocence.  The measures sanctioned by section 14(4) in combination with 20(a) therefore do not violate the rights protected by Articles 10 and 11.  Even if they are thought to make some inroads on such rights, such inroads are not disproportionate and not unconstitutional. 

127.  A similar conclusion was reached by the Privy Council in Brown v Stott,[38] a case which bears comparison.  It concerned a statutory provision empowering the Scottish police to require someone to name the person who was driving a car at a stated time, with the compelled answer being admissible in evidence against the maker of the potentially self-incriminating answer (as where the subject has to name himself as the driver).  It was held that such direct use was not a disproportionate response to a serious social problem and a measure which did not undermine the accused’s right to a fair trial viewed in the round.  This approach was approved in Lee Ming Tee.[39]

128.  In Secretary for Justice v Latker,[40] the Court of Appeal had to deal with a very similar provision.  The relevant sections[41] place a duty on the registered owner of a car to identify the driver of the vehicle at the time when an offence was suspected to have been committed and permit the response to be used in subsequent proceedings as prima facie evidence that the defendant was the driver at the relevant time.  It was therefore a provision which expressly permitted direct use of a potentially self-incriminating answer.  Ma CJHC (as the Chief Justice then was) held that the limited and highly focussed inquiry was not unduly intrusive and that, taken with the other features of the offence, it did not constitute an infringement of the right to a fair trial viewed in the round.[42]

129.  In the present case, the extent of the information sought under section 14(1)(c) is greater (and greater still under sections 14(1)(a) and (b)), as compared with the single question as to the identity of the driver at the relevant time.  However, the use that is allowed to be made of the information obtained is considerably less intrusive under section 20(a):  it cannot be used as evidence of guilt, but only by way of cross-examination on credit, relying on the compelled statement merely as a prior inconsistent statement if the defendant should choose to give evidence.  The permitted use therefore does not involve directly incriminating the subject of the notice.

130.  In these circumstances, I conclude that the challenged measures are proportionate.  If a person could respond to a section 14 notice and then give a contradictory version of the facts when testifying in court without the prosecution being permitted to draw the Court’s attention to the earlier inconsistency, subjects would hardly need to take the investigation seriously.[43]  The use of the compelled declaration or statement permitted by section 20(a) is therefore no more that a necessary adjunct to the effective investigation of corruption. It represents a fair balance between the public interest in realising the legitimate aim of suppressing corruption and protection of the fundamental rights of the individual.

E.  Conclusion

131.  For the foregoing reasons I would dismiss the appeal and make an order nisi that the appellant pay the costs of this appeal, giving the parties liberty to lodge submissions in writing on costs within 14 days of the date of this judgment and direct that in default of such submissions, the order nisi should stand as an order absolute without further order.

Lord Hoffmann NPJ:

132.  I agree with the judgment of Mr Justice Ribeiro PJ.

Chief Justice Ma:

133.  The appeal is accordingly unanimously dismissed. The Court makes the order as to costs set out in the ultimate paragraph in the judgment of Mr Justice Ribeiro PJ.