The issue before the Court of Final Appeal
A v The Commissioner of the ICAC, FACC 9/2011 concerned a key feature of the ICAC's investigative powers, namely, notices issued under s.14 of the POBO. The question before the Court of Final Appeal was whether a person served with a s.14 notice ("Notice") could lawfully invoke privilege against self-incrimination to justify refusing to comply with it.
Under section 14 of the POBO, the ICAC's Commissioner ("the Commissioner") or investigating officer may (for the purpose of an investigation into or proceedings related to a suspected offence under the POBO), apply ex parte to the Court of First Instance, for an order authorizing the Commissioner to serve a Notice on a person, requiring him to provide specified information and/or documents.
The appellant A, had been served with a Notice under s.14(1)(d) of the POBO. A Notice under that sub-section can be authorized by the Court where it is satisfied that there are reasonable grounds for suspecting that an offence under the POBO has been committed, and the Commissioner believes that the person to be served is acquainted with any facts relevant to an investigation or proceedings. The Notice requires the recipient to furnish the investigating officer with all information in his possession or to which he may reasonably have access, in respect of such matters specified in the Notice, appear before the investigating officer to answer any questions or produce documents in his possession or under his control or to which he may reasonably have access.
The Notice served on A stated that an investigation was being carried out into offences suspected to have been committed by a named person, contrary to the POBO (conspiracy 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) and that the Commissioner believed A to have information relevant to the investigation. The Notice required A 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. The Notice also stated that A was required, on demand by the named investigator, to furnish such documents as the investigator considered relevant to the investigation.
The Notice also specified the period within which A had to comply with its terms and that failure or neglect to comply, without reasonable excuse, was an offence under s.14(4) and that the wilful making of any false statement in answer to the Notice was an offence under s.14(5), with liability to a fine of HK$20,000 and one year's imprisonment.
A issued a summons under the Rules of High Court, Order 32, rule 6 and Order 119 and under the Court's inherent jurisdiction seeking a declaration that he was entitled to assert 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) sought. Further or alternatively, A sought an Order setting aside the Notice and Court's Order 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 a respondent of privilege against self-incrimination.
A's summons was dismissed. The Appeal Committee granted A leave to appeal to the Court of Final Appeal by reason of the points of law of great general or public importance involved.
The Court of Final Appeal's Ruling
On 13 November 2012, the Court of Final Appeal dismissed A's appeal and ruled as follows:-
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). There is a complete direct use prohibition in relation to answers given in response to a notice issued under section 14(1)(d). Thus A was not at risk of his responses given in compliance with the Notice being used directly as evidence to incriminate him if he should ever become a defendant in a criminal trial. This was 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 the 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.