HKSAR v. LAM CHEUK TING

[English Translation – 英譯本]

HCMA34/2023

[2024] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 34 OF 2023

(ON APPEAL FROM ESCC NO 2789 OF 2020)

_______________________

_______________________

JUDGMENT

1.  The appellant was found guilty of three counts of disclosing the identity of a person being investigated after the trial before magistrate Jacky Ip and was sentenced to four months’ imprisonment on each of the charges, all to run concurrently. The appellant now appeals against the conviction.

2.  The background of the case can be understood through the magistrate’s summary of the appellant’s testimony:

“The defence case

9. The defendant elected to give evidence but did not call any defence witnesses.

10. The defendant stated that he was an investigator of the Independent Commission Against Corruption (ICAC) between early 2008 and 2011 and had received training in which the Prevention of Bribery Ordinance was involved. According to the defendant’s own understanding, the nature of non-disclosure is expressly stated and the offences under Part II of the Ordinance are not permitted to be disclosed.

11. On 21 July 2019, demonstrations approved by the police were conducted on Hong Kong Island. The defendant participated in the publicity work at a street booth of the Democratic Party. During that time, the defendant was following the news and online information and was aware of the rumours that there might be danger in Yuen Long on the evening of 21 July, in particular that there might be attacks on black-clad anti-extradition law amendment bill protesters. As a result, the defendant contacted a Yuen Long District Councillor.

12. Around 10 p.m., the defendant saw online that there were people in Yuen Long who were seriously injured. He contacted the Yuen Long District Councillor again to inquire about the incident. The defendant contacted Sergeant Tang, Yuen Long Police Community Relations Officer, and expressed strong criticisms.

13. Around 10:40 p.m., the defendant arrived at Yuen Long West Rail Station together with two colleagues. Upon alighting from the car compartment, the defendant heard someone shouting that the triads were beating people downstairs and asking for quick help. The defendant handed his phone to a colleague to live-stream on Facebook and went downstairs along the staircase, and there he saw injured people, bloodstains and broken rods on the floor.

14. Subsequently, a large number of people dressed in white stormed the non-paid area of Yuen Long Station and began making verbal abuses and attacking other people. The defendant requested them to stop for more than 20 times and said that the police had been called, but they did not halt. One of those people dressed in white recognised the defendant, verbally abused him and struck him with a thick rod. The defendant’s mouth was beaten and busted, his arm was hit with bone fractured and his head was also beaten with multiple injuries. Stitches were required.

15. After discharge from the hospital, the defendant met with police officers from the Regional Crime Unit of New Territories North at the Legislative Council office and eventually agreed to provide information and give a witness statement.

16. The defendant said the ICAC also invited him to assist in the investigation. Two interviews were conducted at the Legislative Council office.

17. PW 1, Mr Lee (transliteration) and PW 2, Mr Lam (transliteration) attended the first interview. The defendant said that as Mr Lee knew that he was a former ICAC officer and was familiar with the relevant legislation, the wording used was not formal. Mr Lee only expressed that the ICAC was looking into it and it could not be disclosed. The defendant stated that it only applied to the POBO provisions, but not ‘misconduct in public office’. Mr Lee did not give any comment or reply.

18. Mr Lam and Mr Ng (transliteration) attended the second interview. Mr Lam gave the reminder about the POBO. The defendant also expressed that the restrictions only applied to the provisions under the POBO. Mr Lam did not give any comment.

19. The original topic for the first press conference on 30 December 2019 was the suspected abuse of force by the police. However, before the press conference, Kong Wing-cheung from the police force stressed at a TV interview that the police would solemnly enforce the law, and said that the 7.21 incident was instigated by someone bringing a group of people to Yuen Long. The defendant was infuriated and questioned if the police were rewriting the history of the 7.21 incident.

20. At the press conference, the defendant said that Yau Nai-keung was the person-in-charge of the New Territories North Regional Crime Unit but he was responsible for investigating the 7.21 case. It was no doubt that one was conducting investigations on oneself. The defendant also expressed that Mr Yau was the subject of an investigation by the ICAC in respect of ‘misconduct in public office’.

21. The subject for both the second press conference held on 21 January 2020 and the third press conference held on 16 July 2020 was the 7.21 incident. The defendant expressed that Mr Yau was the subject of an investigation by the ICAC in respect of ‘misconduct in public office’.

22. Under cross-examination, the defendant agreed that the confidentiality of ICAC’s investigation was very important to its work and even investigating officers had to comply with it. Any leakage would alert those being investigated, causing evidence to vanish and affecting the investigative work.”

3.  As Mr Lee and Mr Lam of the ICAC informed the appellant during their interviews with him that they were investigating Yau Nai-keung from two perspectives, namely bribery and misconduct in public office, the appellant learnt that Yau Nai-keung was being investigated for an offence under Part II. On the basis of the appellant’s subsequent acts of disclosure to the public through the media during the first, second, and third press conferences that Yau Nai-keung was being investigated by the ICAC for misconduct in public office, the prosecution was of the view that the appellant had contravened section 30(1)(b) of the Prevention of Bribery Ordinance, an offence which prohibited the disclosure of the identity of a subject person being investigated, and therefore laid a charge in the present case.

4.  Section 30(1) provides as follows:

“30. Offence to disclose identity, etc. of persons being investigated

(1) Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II is taking place, without lawful authority or reasonable excuse, discloses to—

(a) the person who is the subject of the investigation (the subject person) the fact that he is so subject or any details of such investigation; or

(b) the public, a section of the public or any particular person the identity of the subject person or the fact that the subject person is so subject or any details of such investigation,

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 1 year.”

5.  Misconduct in public office is not “an offence under Part II” as set out in section 30(1).

6.  The magistrate has expressed his understanding of section 30(1)(b) as follows:

“43. In fact, the wording of the legal provisions pertaining to this case is not ambiguous, and the prosecution’s position has been consistent throughout, namely that as long as the ICAC was investigating Yau Nai-keung, which included an offence involving Part II of the Prevention of Bribery Ordinance, and the defendant knew that Yau Nai-keung was being investigated for an offence under Part II of the Ordinance, the defendant should not have disclosed to the public the identity of Yau Nai-keung as a person being investigated.

44. The requirement of the provisions is that whether, at the time of disclosure, the defendant knew that the investigation into an offence under Part II was underway, but not whether the defendant had disclosed an offence under Part II.”

7.  The magistrate’s understanding was that as long as a defendant is aware that a person, A, is being investigated by the ICAC for an offence under Part II, then even if the defendant has disclosed A as a subject of an investigation without simultaneously disclosing that A is being investigated in respect of an offence under Part II, the defendant will be in contravention of section 30(1)(b).

8.  The magistrate held that the legislative intent of section 30(1) is as follows:

“49. Obviously, the legislative intent of section 30(1) has always been to prevent the subject of an investigation from directly or indirectly learning of the fact that he is so subjected, thereupon destroying evidence and evading investigation by the ICAC.”

9.  The magistrate went on to find that when the appellant disclosed that Yau Nai-keung was being investigated for the offence of misconduct in public office, “... it would inevitably result in Yau Nai-keung’s directly or indirectly knowing that he was under investigation by the ICAC, and that the defendant’s act might affect the ICAC’s investigation and cause the evidence to vanish.[1]”

10.  The magistrate did not specify whether it was the investigation into the offence of misconduct in public office or bribery that might be affected. Based on the magistrate’s earlier finding that “the facts of the two charges must necessarily overlap and that the approaches of the investigation into the two offences must also necessarily converge[2]”, it is believed that the magistrate meant the two approaches of the ICAC’s investigation would be affected.

11.  After analysing the appellant’s testimony, the magistrate rejected his evidence. Although the magistrate did not specify whether he rejected a part or the whole of the evidence, it is believed that he referred to the part where the appellant said that the disclosure was made to achieve certain effects.

12.  According to the magistrate’s summary, the first effect the appellant sought to achieve was to “enable the public to have a clear understanding of the safety and public order risks that people were exposed to because of the way the police enforced the law.”  Regarding this, the magistrate found that “it would not be necessary for the defendant to disclose the ICAC’s investigation at all in order to convey his views on the impact of Yau Nai-keung’s transfer on the public well enough.”

13.  The second effect that the appellant sought to achieve was “hoping to force the police to withdraw the appointment and assign an unrelated senior police officer to investigate the 7.21 incident by constantly criticising the appointment and exerting the pressure of public opinion on the ICAC’s investigation of Mr Yau.”  Regarding this, the magistrate found that “in fact, while the defendant sought to make the police assign another officer to conduct the investigation by exerting the pressure of public opinion about the ICAC’s investigation of Mr Yau, the defendant’s act of disclosing the identity of Mr Yau as a person being investigated by the ICAC to the public would surely and exactly alert the subject of the investigation. On the contrary, the defendant’s act of disclosure would affect the ongoing investigation as this would alert Yau Nai-keung and eventually harm public interests.”

14.  The appellant “[3]under cross-examination by the defence (sic) added that by disclosing the ICAC’s investigation into Mr Yau’s misconduct in public office, there was also the intention to let the public understand that the assertions of not harbouring criminals, insufficient manpower and improper deployment by the police were absolutely not the case.” He was also of the view that “the constant use of specious arguments by the police was to deny responsibility and to rewrite the 7.21 incident. With the severe safety risks that the public was exposed to, Mr Yau’s transfer would not reduce but heighten the risks and worsen the situation. Therefore, at the press conference that day, it was mentioned that Mr Yau was a suspect of the ICAC for an offence of misconduct in public office.”  Regarding this, the magistrate was of the view that “firstly, as analysed above, the defendant’s disclosure that the ICAC was investigating Mr Yau would stand in the way of finding the truth.”  It appeared that the magistrate also found that the appellant’s disclosure was not made on the basis of such thoughts.

15.  The appellant explained in his testimony that he “did not mention the offence of bribery all along because he did not believe bribery was involved in the present case. The defendant was of the view that the large-scale non‑enforcement on the part of the police could not be achieved merely through an offer of advantage; the offence of misconduct in public office, on the contrary, would fit the facts and evidence. The defendant said his line of thought at the three press conferences was primarily to challenge it from the perspective of misconduct in public office.”  Regarding this point, the magistrate considered the following:

“71. Moreover, it is not that misconduct in public office and bribery are mutually exclusive. Even if the defendant was of the view that the large-scale non-enforcement on the part of the police could not be achieved merely through an offer of advantage, it did not mean that such a situation did not necessarily exist, even more so that the two could not coexist. Just as the defendant stated in his testimony, whether such situation had occurred would only be known until the results of the investigation were available.”

16.  The appellant said in his testimony that he “had experience working in the ICAC and had knowledge of the section 30 requirement, therefore …. the explicit statement that Mr Yau was under investigation by the ICAC into the offence of misconduct in public office was based on a clear understanding of the case, and the most important doubt about the police and respect for the law.”  Regarding this point, the magistrate found that “undeniably, even if the defendant came from the background of working in the ICAC, it does not mean that he would necessarily not have violated the relevant stipulations.[4]”

17.  The magistrate then came to the following findings:

“72. Furthermore, the crux of the present case is that the defendant agreed that he knew the ICAC was conducting an investigation into Mr Yau’s alleged commission of the offences of misconduct in public office and bribery by a police officer.

73. The defendant’s disclosure would obviously have an adverse impact on the ICAC’s investigation in respect of the bribery offence.”

18.  Then the magistrate came to the following finding as to whether the appellant had a reasonable excuse for making the disclosure:

“79. The first thing this court must clarify is that in this case one must take into account whether the defendant had a reasonable excuse for his disclosure and whether the disclosure was based on public safety, order, and interests. In other words, it was about whether public safety, order and interests would be affected if the defendant had not made the disclosure, rather than considering whether the 7.21 incident was a significant incident or whether the incident affected public safety, order, and interest.”

“84. At the three press conferences, the defendant’s purpose was to describe the manner in which the 7.21 incident was handled by the police and the way they conducted the investigation after the incident. He had expressed the main point of dissatisfaction, namely Yau Nai-keung’s non‑enforcement of the law in the 7.21 incident, the suspected misconduct by public officers, and his subsequent assignment to investigate the 7.21 incident was a case of ‘one’s own people investigating their own’. In fact, it is unnecessary for the defendant to further disclose that Yau Nai-keung was the subject of an investigation by the ICAC in respect of the offence of misconduct in public office in order to convey the message.

85. The defendant had publicly criticised the arrangement of appointing Yau Nai-keung to investigate the 7.21 incident by the police and said that he would write to the Commissioner of Police in relation to the matter and follow up the same at the Legislative Council to make the police withdraw the appointment of Yau Nai-keung to conduct the investigation. Disclosing the ICAC’s investigation into Yau Nai-keung could not achieve the defendant’s purpose, nor was it the only or an effective way. It could only at best fortify his voice at the press conferences.

86. The defendant’s disclosure that Yau Nai-keung was the subject of the ICAC’s investigation could not prevent public safety and order from being affected; on the contrary, the disclosure to the public would even result in Yau Nai-keung himself becoming aware of the ongoing the ICAC’s investigation into him, which might affect the efficacy of the investigation. If there was corruption and bribery within the police force, such disclosure might also affect the enforcement of the law by the ICAC, thereby allowing corruption to perpetuate. The defendant’s act would, on the contrary, threaten public safety, order, and interest.

87. To summarise the above analyses, I do not accept the defendant’s disclosure to the public about Yau Nai-keung’s being investigated by the ICAC for the offence of misconduct in public office was made with a ‘reasonable excuse’, that is, the act was made for the sake of public safety, order and interest. The prosecution has proved beyond reasonable doubt that the ‘public interest’ defence the defendant has put forward is unreasonable and untrue.”

19.  The magistrate finally found the appellant guilty of the 3 counts.

Grounds of Appeal

20.  I would adopt the respondent’s summary of the appellant’s grounds of appeal:

(a)  Grounds (1) and (2): The magistrate erred in the construction of section 30(1) of the Prevention of Bribery Ordinance, thereby finding that there was a prima facie case and convicting the appellant.

(b)  Ground (3): The magistrate erred in finding that the prosecution had proved beyond reasonable doubt that there was no reasonable excuse for the appellant to make the disclosure.

(c)  Ground (4): In paragraph 63, the magistrate erred in understanding the evidence on the second press conference; therefore, the findings in paragraphs 73 and 74 of the Statement of Findings are unsafe.

(d)  Ground (5): The magistrate erred in understanding the appellant’s testimony regarding the report of Independent Police Complaints Council; therefore, the findings in paragraph 74 of the Statement of Findings are unsafe.

(e)  Ground (6): There are flaws in the logic of paragraph 83 of the Statement of Findings: “The fact that the public was aware of Yau Nai-keung being investigated by the ICAC for misconduct in public office would not necessarily result in the public becoming aware of an investigation into a corruption offence[5].”

21.  I am of the view that grounds 1 and 2 put forward by the appellant simply address the same issue from different perspectives; namely the correct construction of “disclosing the identity of the subject person being investigated” under section 30(1)(b), and can be dealt with together.

22.  Grounds 3 to 6 deal with the issue as to whether the appellant made the disclosure in question under a reasonable excuse from different perspectives. Similarly, they can be dealt with together.

Dealing with grounds (1) and (2)

23.  In summarising the prosecution’s position regarding section 30(1)(b) in paragraph 43 of the Statement of Findings, the magistrate held that under the circumstance where the appellant had knowledge of Yau Nai-keung’s being investigated in respect of an offence under Part II of the Prevention of Bribery Ordinance, “the defendant should not have disclosed to the public the identity of Yau Nai-keung as the subject person.”  The magistrate did not further explain the meaning of a “subject person” in the same paragraph. However, according to section 30(1)(a), the magistrate must be referring to the definition of a “subject person” in that provision, namely “the subject of the investigation”. According to the beginning of section 30(1), “the investigation” must mean an investigation “in respect of an offence alleged or suspected to have been committed under Part II”.

24.  Hence, according to the magistrate’s understanding of the prosecution’s position, the matter that “the defendant should not have disclosed to the public” was the fact that Yau Nai-keung was a person being investigated in respect of an offence under Part II.

25.  However, there is a difference between the magistrate’s understanding of the prosecution’s position and the respondent’s position adopted toward the construction of section 30(1)(b) at this appeal hearing.

26.  The respondent’s position at the appeal is that as long as the appellant had the knowledge at the moment of the disclosure that Yau Nai-keung was being investigated in respect of an offence under Part II, even if it was not specifically mentioned in the disclosure and only Yau Nai-keung’s identity as a person under the ICAC’s investigation was disclosed, the appellant’s disclosure would still constitute a disclosure under section 30(1)(b), thereby committing an offence under it.

27.  I am of the view that, based on the above summary of the magistrate’s understanding of the prosecution’s position as he expressed, the magistrate should have found the appellant not guilty, because the appellant did not disclose that Yau Nai-keung was a person being investigated for an offence under Part II. It is only with the respondent’s position adopted at the appeal would the appellant be found guilty of having contravened section 30(1)(b) despite the absence of such disclosure.

28.  The key point of the respondent’s position is that section 30(1)(b) should be construed broadly so that it covers the circumstances where the subject person under an investigation is not disclosed as the subject of the investigation in respect of an offence under Part II. The respondent relies on the legislative intent of section 30(1) as the basis to support the assertion that the provision can be so construed.

29.  The respondent explained that the Prevention of Bribery Ordinance was officially enacted in 1970. During the deliberation process at the time, the then Attorney General pointed out during the second reading of the bill that “the obvious intention of the provision is to prevent leakage of information which would destroy the secrecy and integrity of an investigation into a bribery case, which is difficult to uncover by its very nature”. In the respondent’s view, the Ordinance went through several amendments subsequently[6] and it was not until the gazetted version on 19 July 1996 that the current section 30(1) was enacted. This “clearly indicates that the original intention to prevent the efficacy of an investigation into corruption from being impaired by improper disclosure remains unchanged”.

30.  The respondent cited the judgment of the Hong Kong Court of Appeal in A-G v Ming Pao Newspapers Ltd & Ors and the analysis of the English Privy Council in Ming Pao Newspapers Ltd v A-G of Hong Kong [1996] AC 907, and emphasised that “obviously, the legislative intent of section 30(1) has always been to prevent the subject of an investigation from directly or indirectly learning of the fact that he is so subjected, thereupon destroying evidence and evading investigation by the ICAC”.

31.  The respondent pointed out that section 30(1)(b) involves three different types of disclosure: (A) the identity of the subject person, (B) the fact that the subject person is so subject, and (C) any details of such an investigation. The respondent was of the view that “the provision does not explicitly state that the appellant must make the disclosure now referred to by the defence to constitute the offence either.”  The respondent’s view was that based on the legislative intent expounded above, if the three different types of disclosure were all restricted to the disclosure of the subject person being under an investigation into an offence under Part II “without prohibiting the appellant from informing the subject person the fact that he or she is subject to an investigation by the ICAC, it would certainly render the provision useless, because it would mean that anyone who clearly knows or suspects that the ICAC is conducting an investigation into an offence under Part II can still freely disseminate the information at any time that the person is the subject of an investigation by the ICAC, without any criminal liability.”

32.  I do not take the view that section 30(1)(b) can be construed so broadly.

33.  Firstly, while the respondent’s broad construction may possibly apply to situation A above, it does not apply to situations (B) and (C).

34.  While the words “under investigation” in the Chinese text in situation (B) may possibly be construed as being under an investigation  of “any offence” instead of that of an offence under Part II, the English text of section 30(1)(b) clearly states that the disclosure in situation (B) must be the fact that the subject person is under an investigation of an offence under Part II:

“(b) the public, a section of the public or any particular person the identity of the subject person or the fact that the subject person is so subject or any details of such investigation,”

35.  To achieve the legislative effect of covering any type of offence “under investigation”, the English text could not have used the words “so subject”; instead, the words “the fact that the subject person is subject to any investigation” would have been used. Therefore, the disclosure in situation (B) must be construed as disclosing the fact that it is an investigation into an offence under Part II; thus, the respondent’s assertion that the offence under Part II was not required to be mentioned in the disclosure cannot apply to situation (B).

36.  As for situation (C), the wording in both Chinese and English versions of the provision is very clear. The details of such an investigation refer to those of the investigation into an offence under Part II. The details disclosed must be those of the investigation instead of details of other offences. Therefore, the respondent’s assertion that the offence under Part II was not required to be mentioned in the disclosure cannot apply to situation (C) either.

37.  Therefore, the respondent’s broad construction may only apply to situation (A). In fact, the three accounts of disclosure by the appellant could be contrary to section 30(1)(b) only if situation (A) applied, which was also the basis of the prosecution against the appellant.

38.  I shall examine the legislative history of section 30 in an attempt to find out the legislative intent of section 30(1)(b) to help us construe the provision properly.

39.  The current version of section 30(1) was amended in 1996.

40.  The English text of section 30(1) prior to the amendment in 1996 is as follows:

“30(1) Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance the fact that he is subject to such an investigation or any details of such investigation, or discloses to any other person either the identity of any person who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for one year.”

41.  In AG v Ming Pao Newspapers Limited and others (1995) 5 HKPLR 13, the Court of Appeal of Hong Kong dealt with the issue, by way of a case stated from the magistrate, whether the magistrate was correct in ruling that the then section 30 was invalid due to violation of the Hong Kong Bill of Rights Ordinance. The answer from the Court of Appeal was that the magistrate’s ruling had been incorrect. In the course of consideration, the Court of Appeal had the following opinion on the then section 30(1):

“And looking at the second part of s30(1), it cannot be assumed that every time an offence under the Ordinance has been alleged or suspected to have been committed, and an investigation is underway it necessary leads to a person being charged. The allegations and suspicions may, ultimately, turn out to be groundless. The protection of the reputation of suspects, who may have to undergo the opprobrium of investigation over a long period, is a manner of considerable importance: particularly if the suspect is a Crown servant having to perform his duties vis-à-vis the public in the meanwhile. No time limit is imposed by statute for the process of investigation.[7]”

42.  The Court of Appeal put forward an important purpose of section 30(1) beyond confidentiality, and that was to protect the reputation of a suspect.

43.  Ms Gladys Li, QC, representing the appellant in that case, submitted that if the investigation turned out not to relate to an investigation under the Prevention of Bribery Ordinance but, for instance, under the Corrupt and Illegal Practices Ordinance[8], no offence under section 30(1) would have been committed. However, the provision could still be held in terrorem over the heads of newspaper editors because it would not be within the knowledge of the editors regarding the particular statute on which the investigation was actually focussed. To this, Litton V-P replied, “If in fact it should transpire that an investigation, the details of which have been disclosed by a newspaper, was not an investigation into offences under the Prevention of Bribery Ordinance, the outcome must surely be an acquittal on the charge under section 30(1)… [p]articularly since [the offender’s] knowledge or recklessness has to be proved[.]”  He took the view that the complaint by Ms Gladys Li, QC, could not be established.[9]

44.  The above response from the Court of Appeal shows that if the details disclosed were not those of an investigation under the Prevention of Bribery Ordinance, the discloser would not have committed an offence under the then section 30(1). The disclosure of the details of the investigation is included in the versions of section 30(1) both before and after the amendment. Therefore, the response of Litton V-P is still applicable to situation (C) in the current version of section 30(1)(b), thereby further confirming my view above that the respondent’s broad construction does not apply to that situation.

45.  The case ultimately went up to the English Privy Council. It was held that the then section 30(1) had two limbs, the first being the disclosure to the person who was the subject of an investigation, and the second being the disclosure to others. They could be subdivided to cover the following three situations:

Situation (1):  the disclosure to A, the subject of an investigation, that A is being investigated;

Situation (2):  the disclosure of A’s identity to B; and

Situation (3):  the disclosure to B of the details of the investigation. The Privy Council was of the view that the provision undoubtedly covered situation (3) because such details disclosed might enable B to ascertain and divulge the identity of A[10].

46.  The construction of the then section 30(1) on situation (2) by the Privy Council was equivalent to situation (A) in the current section 30(1)(b) mentioned above.

47.  Although the Privy Council did not specify in its judgment what identity it was when it mentioned disclosure of A’s “identity” to B in situation (2), judging from the wording of the then section 30(1) it definitely meant the identity of A as a subject of an investigation of an offence under the Prevention of Bribery Ordinance, rather than any other identity.

48.  If the Privy Council was of the view that situation (2) could cover the disclosure of any identity of A other than a subject of an investigation in respect of an offence under the Prevention of Bribery Ordinance, it would definitely have so specified and given an explanation. This is because such a construction would have significantly broadened the scope of the then section 30(1) and further restricted the freedom of speech, and this was exactly the issue the Privy Council was requested to deal with in that case. Therefore, the disclosure prohibited in situation (2) must refer to the disclosure of that person’s identity as a subject of an investigation in respect of an offence under the Prevention of Bribery Ordinance, but not the identity as a subject of an investigation in respect of any other offence.

49.  The Legislative Council amended section 30 in 1996, narrowing its scope of coverage. The person whose identity being disclosed had to be a subject of an investigation in respect of an offence under Part II instead of any offence under the Prevention of Bribery Ordinance as was previously the case. The amendment also introduced the element that the offender must, at the time of the disclosure, know or suspect that the person was the subject of the investigation in respect of an offence under Part II, and this further specified and meticulously narrowed the scope of coverage of section 30(1).

50.  However, the amendment above was not the only one to section 30(1) in the 1996 amendment. The new version of section 30(1)(b) also included the disclosure of “the fact that the subject person is so subject”, that is, situation (B) as in the analysis of the respondent’s position above.

51.  Situation (B) did not appear in the section 30 before the amendment, so neither the Court of Appeal of Hong Kong nor the Privy Council was able to take this newly added situation into consideration in the Ming Pao case.

52.  As the coverage of situation (B) appears to overlap with that of situation (A), I am of the view that it is necessary to carefully examine the reason for the legislature to include situation (B) in section 30(1)(b) and try to understand whether the legislative intent was to broaden the scope of coverage of situation (A) at the same time to the extent the respondent now claims after the inclusion of this situation, that is, given that the appellant knew someone was being investigated for an offence under Part II, whether he had already committed an offence under section 30(1)(b) by disclosing that the person was under any investigation by the ICAC without disclosing that the person was subject to the investigation in respect of an offence under Part II.

53.  Assuming that this was indeed the legislative intent behind the introduction of situation (B), it would be an act of the legislature that significantly broadened the coverage of situation (A). If the legislative intent was to expand situation (A) to the extent that section 30(1)(b) would have been contravened by merely saying the name of the person under investigation, it would certainly be clearly explained in the record of proceedings. However, after reviewing all the records of proceedings of the Legislative Council, and the minutes and reports of the meetings of the Bills Committee pertaining to the 1996 amendment to section 30, I have only found a short paragraph in a report mentioning that the ICAC would want section 30(1) to cover “general investigations” beyond the offences under Part II. Apart from that there was no other discussion on broadening the scope of coverage of situation (A) at the same time after introducing the newly added situation (B). I shall explain in detail the content of that paragraph below.

54.  At the meeting of the Bills Committee held on 5 January 1996, Hon Christine Loh first proposed that “makes any disclosure intending to prejudice the investigation” or “intending to make any disclosure which is likely to prejudice the investigation” be added to section 30 in the “Report on the ICAC Review Ordinance” as an element of the offence[11].

55.  At the meeting held on 16 April 1996, Hon Mrs Selina Chow expressed her worry that if the phrase “under this Ordinance” was changed to “under Part II of this Ordinance”, section 30(1) would only apply to offences under Part II and could erode the effectiveness of investigations significantly. Hon Christine Loh explained that the purpose of such a narrow application of section 30 was to restrict its effect to corruption offences[12].

56.  At the meeting held on 30 April, Mr Allcock, representing the Attorney General, informed the members that the Administration would prepare to consider the following: (a) an amendment to section 30(1) such that it would only apply to offences under Part II; (b) an amendment to section 30(1) to narrow its application so that it would only be an offence for a person who knew or suspected that an investigation was taking place to make a disclosure; and (c) an amendment to section 30(2) such that disclosure of the identity of any person being investigated would be allowed by the suspect himself or a third party with his consent[13].

57.  The Privy Council handed down the judgment on the Ming Pao case on 20 May 1996. The Committee tabled the judgment at the meeting held on 21 May for the members’ reference.

58.  At the meetings held on 12 and 14 June, the Committee deliberated on the issue of public interest as a reasonable excuse, during which the judgment of the Privy Council in the Ming Pao case was mentioned. Mr Allcock confirmed that the drafting amendments to section 30 would not affect the judgment of the Privy Council in respect of the scope of section 30[14].

59.  It was not minuted in any of the above 22 meetings of the Bill Committee that any members had discussed the addition of situation (B) into section 30(1)(b). The Bill was then read the second time. According to the minutes of the second reading dated 10 July 1996, the members similarly did not discuss the addition of situation (B) above.

60.  At the House Committee meeting on 28 June 1996, the Bills Committee submitted its report[15], in which the following was reported in respect of the proposed amendments to section 30:

“Original text of paragraph 43: ‘The ICAC on the other hand, was concerned about the judgment of the Privy Council that section 30 applied only to an investigation in respect of a specified person and that disclosure of the details of a general investigation was not an offence. In its view, a general investigation needed to remain covert and was equally vulnerable to being prejudiced by a disclosure as one in respect of an identified suspect. The ICAC would therefore like section 30 to be amended so that it did apply to general investigations. The inclination of the Bills Committee was however not to support the ICAC’s proposal to amend the section to include a general investigation. It would be up to the Administration to decide whether or not to move Committee Stage Amendments in this regard.’ ” (Emphasis added)

61.  The above shows that the ICAC was clear about the view of the Privy Council that the disclosure of the details of a general investigation was not an offence under the then section 30, and that the ICAC would like to amend section 30 so that it would cover general investigations. However, the Bills Committee was inclined to reject such a proposed amendment. Subsequently, such an amendment was not explicitly made. From this report it could be further understood that the legislative intent of the 1996 amendment to section 30(1) was certainly not to expand substantially the scope of situation (A) or the pre-amended situation (2) to cover the disclosure of “general investigations” beyond that in respect of the offences under Part II.

62.  The amendment to section 30(1) proposed by Hon Christine Loh is set out in appendix 3 of the report, in which the element of “likely to cause substantial prejudice to the investigation” was added to the offence.

“Test of likelihood to prejudice an investigation

3. The Administration has given several reasons why it opposes the introduction of any form of ‘likely to prejudice’ test into S. 30, as earlier proposed by Christine Loh. The addition of a new subsection (2) as follows may alleviate such concerns;

‘(1)* Any person who, knowing or suspecting that an investigation is taking place in respect of an offence alleged or suspected to have been committed by a person under Part II of this Ordinance, without lawful authority or reasonable excuse makes any disclosure likely to cause substantial prejudice to the investigation and which is shown to have caused such prejudice shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year.

(2) For avoidance of doubt, an investigation is prejudiced if any information about the investigation, being information not previously known to the person who is the subject of the investigation, is disclosed to that person.

(3) In proceedings against a person for an offence under this section, it is a defence to prove that he did not know or have reasonable cause to believe that the disclosure was likely to prejudice the investigation.’.

4. It is also worth noting that similar ‘likely to prejudice’ tests have for some years been part of disclosure restrictions in several laws in the UK, Australia and Hong Kong, without apparent adverse consequences. Some of these laws govern investigations of types that pose many of the same investigative difficulties as corruption investigations, e.g. investigations into ‘money laundering’ under the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405).”

63.  The section 30(1) set out in appendix 4 is the current version in force.

“30. Offence to disclose identity etc. of persons being investigated

(1) Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II of this Ordinance is taking place, without lawful authority or reasonable excuse, discloses to -

(a) the person who is the subject of the investigation (the ‘subject person’) the fact that he is so subject or any details of such investigation; or

(b) the public, a section of the public or any particular person the identity of the subject person or the fact that the subject person is so subject or any details of such investigation,

shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year.”

64.  Appendix 5 is the two amended versions of section 30(1) motioned by the Attorney General. The first version is identical to the one in appendix 4, which I shall not repeat. The alternative version is broadly similar to the current version, with situations (A) to (C) also set out in the provision, but in a different order.

“30. Offence to disclose identity etc. of persons being investigated

(1) Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II of this Ordinance is taking place, without lawful authority or reasonable excuse, discloses to the public, any section of the public, or any person any details of the investigation shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year.

(2) For the purposes of subsection (1), where a particular person (“the subject person”) is the subject of an investigation of the description mentioned in that subsection, the reference to disclosure of the details of the investigation includes a disclosure -

(a) to the subject person of the fact that he is so subject;

or

(b) to the public, any section of the public or any person of the identity of the subject person or of the fact that the subject person is so subject.”

65.  The above amendment proposed by the ICAC, i.e. the disclosure covering “general investigations”, was not added into any of the four proposed amended versions at that time.

66.  According to all the records of proceedings on the issue of the amendments to section 30, the focus of the Attorney General and the Legislative Councillors was primarily on whether the potential consequence of disclosure in the section as an element of the offence should be added. While some Legislative Councillors would like to include this element to provide further protection for the discloser, the Attorney General took the view that the inclusion would give rise to difficulty in enforcement and also limit the purpose of section 30 that aimed to protect an investigation from being affected. Ultimately, this element of the offence was not added to the 1996 amendment.

67.  The most significant amendment to section 30 was to restrict its scope to the offences under Part II. According to all the records of proceedings of the Legislative Council, this substantial amendment was uncontroversial, with the unanimous consent to it from both the legislature and the executive.

68.  As summarised above, the records of proceedings of the Legislative Council do not reveal the rationale for the newly included situation (B) and the impact of its inclusion on the scope of coverage of situation (A), and whether the scope of coverage of situation (A) would be expanded to cover the scope put forward by the respondent.

69.  Furthermore, paragraph 43 of the report mentioned above clearly shows that the legislators had no intent to expand the scope of coverage of situation (A) in section 30(1)(b) to cover “general investigations” in the 1996 amendment.

70.  All the amendments made to section 30 or section 30(1) prior to 1996 resulted in narrowing their scope of coverage, including the inclusion of various circumstances in section 30(2) that would render section 30(1) inapplicable.

71.  I am of the view that the legislators’ intention regarding the scope of coverage of section 30(1)(b) can be most clearly inferred from their deliberation that the Committee rejected the ICAC’s request to add “general investigations” to the amendment. The Committee’s intention aligned with the approach of all the amendments made before 1996, which was to narrow the scope of section 30(1). The intention that section 30(1)(b) should not be so broadly construed was crystal clear.

72.  Furthermore, the consequences of the respondent’s broad construction would push section 30(1) to the direction opposite to the past amendments, bringing it into a broader context compared to the pre-1996 amendment. The respondent’s broad construction of situation (A) in section 30(1)(b) would override the amendment that restricted section 30 to the offences under Part II, rendering it practically useless.

73.  Upon reading the deliberations throughout the legislative process as a whole, and by making reference to the construction adopted by the Court of Appeal and the Privy Council regarding section 30(1) and the content of paragraph 43 of the report, I am of the view that the only reasonable inference is that situation (A) in section 30(1)(b) must be construed as disclosing the identity of a person subject to the investigation in respect of an offence under Part II instead of being broadly construed as suggested by the respondent.

74.  Under this relatively narrow construction, neither the appellant’s subjective intention nor the objective facts indicate any direct, indirect or implied disclosure made by the appellant to the public that Yau Nai-keung was at that time the subject of the investigation in respect of an offence under Part II. The appellant’s disclosure of Yau Nai-keung as the subject of an investigation by the ICAC into the offence of misconduct in public office offence was not covered by any of the situations in section 30(1)(b). Therefore, the appellant did not violate the relevant Ordinance. The appellant’s appeal against conviction is allowed and his conviction quashed.

Dealing with the grounds of appeal regarding reasonable excuse

75.  For the sake of completeness, I shall further deal with the issue as to whether the appellant had a reasonable excuse for the disclosure. I am of the view that the appellant’s argument that he had a reasonable excuse for making the disclosure at that time was not substantiated for the following reasons.

76.  A reasonable excuse is subject to the following requirements in section 30(3):

“(3) Without affecting the generality of the expression reasonable excuse in subsection (1) a person has a reasonable excuse as regards disclosure of any of the descriptions mentioned in that subsection if, but only to the extent that, the disclosure reveals —

(a) any unlawful activity, abuse of power, serious neglect of duty, or other serious misconduct by the Commissioner, the Deputy Commissioner or any officer of the Commission; or

(b) a serious threat to public order or to the security of Hong Kong or to the health or safety of the public.”

77.  Section 30(3)(a) did not apply to the appellant’s situation.

78.  The appellant submitted that his disclosure “revealed a serious threat to public order or to the security of Hong Kong”:

“53. The applicant was of the view that the police attitude in the ‘7.21 incident’ had reflected a serious threat and vulnerability to ‘the public order or security’ of Hong Kong. The said events had seriously affected the public perception of and confidence in the police in the maintenance of public safety, order and interests, giving rise to doubts. Accordingly, the applicant had made the disclosure; thus, it was in alignment with the circumstances in section 30(3)(b).”

79.  Although I accept that the appellant genuinely believed that the public had to know the truth about the events which occurred on 21 July, the roles played by the people involved in the incident and specifically, the orders given by Yau Nai-keung in his capacity at the time. Through the contents of the press conferences and the appellant’s testimony in court, one can know that the belief held by the appellant was that Yau Nai-keung was culpable for the incident and was one of those who should be held accountable.

80.  However, the alleged unlawful disclosure by the appellant was the fact that Yau Nai-keung was subject to an investigation by the ICAC in respect of the offence of misconduct in public office. The disclosure of such fact was certainly not to “reveal a serious threat to public order or to the security of Hong Kong”.

81.  If the appellant was of the view that Yau Nai-keung’s posting to be the person-in-charge of the New Territories North Regional Crime Unit was a case of “one’s own people investigating their own” and thus posed a serious threat to the public order or security of Hong Kong, he should all the more support the ICAC, which was not under the command of the Commissioner of Police, to investigate Yau Nai-keung. The fact that the ICAC’s investigation into Yau Nai-keung would not have posed any threat to Hong Kong; on the contrary, an investigation conducted by this independent, internationally renowned regulatory body would have boosted the confidence of the public in the result of the investigation, whereby the public order or security of Hong Kong could have been safeguarded.

82.  The disclosure made by the appellant in the present case resulted in Yau Nai-keung and others becoming aware that he was subject to an ongoing investigation in respect of the offence of misconduct in public office. This inevitably increased the difficulty of the ICAC’s investigation and collection of evidence, and intensified the risk of evidence being destroyed or concealed. The appellant’s disclosure did no good at all but harm, producing a counterproductive effect.

83.  Should the appellant’s disclosure be sufficient to constitute the disclosure under section 30(1)(b), I would have found that, even if a lower standard of proof is adopted, the appellant would have failed to provide sufficient evidence to prove he had a reasonable excuse for making the disclosure. Even further assuming that the submissions put forward by the appellant would constitute sufficient evidence, I would have found that the belief held by him was unreasonable and the prosecution would have proved beyond reasonable doubt that the appellant did not have a reasonable excuse for making the disclosure.

Conclusion

84.  The appellant’s appeal against conviction is allowed, and the conviction is quashed.

Costs

85.  As the judgment is delivered in writing, I shall make the costs order nisi as follows.

86.  The costs of the trial and of the appeal be awarded to the appellant, to be taxed if not agreed. Both parties shall have leave to submit written submissions on the costs order nisi within 14 days from the date of handing down of the judgment, to be disposed of by myself in writing. If parties have not raised any objections, the costs order nisi will be automatically made absolute upon the expiry of the aforesaid period of 14 days.

Translation vetted by Ms Jenny Chung, Solicitor.