XCHRX R. v. T

MA370/95

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H E A D N O T E

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Criminal Law & Procedure - Prevention of Bribery Ordinance Cap 201, s17A.

An investigation under the Prevention of Bribery Ordinance should not be prolonged in order to make use for the purposes of another investigation of the draconian statutory powers which were granted under the Ordinance.

(The Court has permitted the publication of this Judgment.)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAG APP NO 370 OF 1995

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J U D G M E N T

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1. This is an appeal from a Magistrate's decision. The Magistrate, having heard evidence and having heard the submissions of counsel, finally reached the conclusion that balancing, as he was obliged to do, various competing considerations, there was no ground for ordering the return of the appellant's passport under s17B(6) of the Prevention of Bribery Ordinance Cap 201.

2. What he had to do after considering the application and the evidence adduced in relation thereto was to decide whether he was satisfied that having regard to all the circumstances, including the interests of the investigation referred to in section 17(A)(1), it would cause unreasonable hardship to detain the travel document further. It is important to note that section 17(A)(1) refers only to an investigation in respect of an offence reasonably suspected to have been committed under the Prevention of Bribery Ordinance.

3. What has troubled me to a considerable extent here is that we all know that the ICAC is investigating other matters which are not likely to result in charges under the Prevention of Bribery Ordinance, and they have proceeded at what I consider to be a leisurely pace in the investigation of a quite simple allegation of an offence under the Prevention of Bribery Ordinance. I cannot help worrying as to whether that leisurely pace has to do with the fact that provided they keep that investigation on foot, they can possibly make use of Prevention of Bribery Ordinance provisions to hamper the freedom of movement of this appellant. If they were to yield to such a temptation, they would of course be quite wrong. It would be wholly improper to try to make use of powers supporting Prevention of Bribery investigations in aid of other investigations. The provisions in the Prevention of Bribery Ordinance are draconian and they are there specifically because it is considered that special powers are needed for the investigation of offences under the Prevention of Bribery Ordinance. The temptation to try to extend those powers and make use of them in other investigations must be resisted.

4. I have heard the chronology of this case. It is now eleven months since this allegation was made to the ICAC, and it was only in February this year that they arrested the appellant. It seems that it was only then that they started addressing themselves to the problems of investigating the matter properly. Certainly I am told it was only then that they made application for information from banks to enable them to find out where the money went -if it went anywhere - from the account of the wife of the banking official who is alleged to have been in receipt of a corrupt payment.

5. The Magistrate was given the impression that the whole investigation would take six months. But of course it is not the whole investigation which has to be considered but this specific investigation although, as I have said, the fact that other investigations are going on is a factor to be considered when assessing the likelihood of the appellant's return to this jurisdiction if she does leave it.

6. Having considered the very careful statement of findings made by the Magistrate, I find that on the basis of such evidence as was before him, I cannot fault his findings that the appellant has established on the balance of probabilities that her presence in Beijing is required in order to enable her to discharge her duties effectively; and she has also established, according to the Magistrate, on the balance of probabilities that her chances of success in obtaining contracts in China will be enhanced by her presence in the PRC. But he was not satisfied that she would suffer substantial hardship if she was not able to go there personally.

7. In balancing the interests of the investigation -and he did direct himself that it was the investigation referred to under 17(A)(1) that he had to consider - taking into account the interests of that investigation and the general circumstances and taking into account the evidence he had heard and the submissions which had been made to him, he finally came to the view that detention of her travel documents for six months would not cause unreasonable hardship to the applicant.

8. It was open to him to make that decision, and as at present advised I do not feel, as I say, that I can fault it. However, I have now heard that the specific investigation as opposed to the general investigation should be capable of being completed in about two months from the middle of February, which is when the ICAC apparently really got going and started applying for bank documents. I have heard what investigations remain to be done by way of re-interviews. I have heard about the information the ICAC is trying to obtain from the bank. It seems to me that two months ought to be ample for the ICAC to make up its mind what it is going to do about this. Once it has made its mind up, it must say what decision it has made and not delay this particular enquiry for any ancillary purpose.

9. I have looked at section 17(B) and I see it provides that a person who has surrendered a travel document may at any time make written application to the Commissioner for its return, and every such application shall contain a statement of grounds. That is a clear indication that the applicant is not limited to one application.

10. It seems to me that if the ICAC does not get on with it, and the applicant makes application when the ICAC has had a reasonable time to make up its mind, then the ICAC may have an uphill task in trying to persuade the court to retain the passport any longer.

11. For the moment, bearing in mind the interests of the specific investigation and being realistic about the situation as it stands, I feel that taking account of the interest of the public in the investigation and prosecution of corruption offences and the general circumstances of the case, the interests of the investigation at this stage outweigh the personal interests of the appellant who naturally wishes to carry on going regularly to China and carrying out her business.

12. I am not persuaded by Mr Egan's as usual eloquent address that this lady faces financial ruin if she cannot go to China for the next few weeks, but I do accept that she is going to suffer considerable inconvenience. It is the duty of the ICAC to complete its investigation with despatch and either charge her or tell her that she is not going to be charged.

13. So the result is that the appeal will be dismissed on the basis that, as I understand the law, that does not mean that the appellant is now necessarily going to be deprived of her passport for six months.