In a decision handed down on 13 November 2012 the Court of Final Appeal (CFA) held that a non-suspect party which was required to provide information and documentation in the course of an investigation conducted under the Prevention of Bribery Ordinance (the POBO) could not invoke the privilege against self-incrimination. However, the CFA also set out the very limited use to which material obtained under a compulsory POBO notice may be put. This judgment provides important clarification in an evolving area of law which will be of concern to individuals subjected to or involved in investigations by the Independent Commission Against Corruption (the ICAC) under the POBO and is likely to have wider implications for investigations more generally and the important questions as to the extent to which privilege (including legal professional privilege) may be invoked in investigations and how material obtained by compulsion may be used.

The facts

The decision related to an investigation conducted by the ICAC under the POBO concerning allegations that a named suspect conspired with others to offer advantages to a named public officer contrary to the POBO. In the course of the investigation the ICAC served a notice on a non-suspect party under section 14(d) POBO requiring him to answer orally, on oath, questions and to provide any documents which the investigator may consider relevant to the investigation. The recipient of the notice sought a declaration from the court that he was entitled to assert the privilege against self-incrimination (in so far as it applied), failing which he sought a declaration that the notice and the provision on which it was based were unconstitutional as they breached his rights under the Hong Kong Bill of Rights and the Basic Law which provide for rights to a fair trial and against self-incrimination. The court at first instance held that there was no privilege against self-incrimination in the context of section 14 notices and that section 14 was not unconstitutional. The recipient of the notice appealed to the CFA (there being no appeal to the Court of Appeal).

The CFA’s decision

The CFA unanimously rejected the appeal and found that section 14 POBO abrogated the right of privilege against self-incrimination and that, properly construed, the unlimited obligation to provide information and the use to which that information could be put were constitutional. The judgments handed down by Justice Bokhary PJ and Justice Ribeiro PJ respectively contain no significant differences.

Section 14 differentiates between information that may be requested from a suspect and information that may be requested from a non-suspect. Whereas a suspect may be requested to provide statutory declarations or statements in writing relating to property, expenditure or money transfers (sub-sections 14(a) and (b)), the requests that may be directed at a non-suspect are potentially much wider. A non-suspect may be requested to provide statutory declarations or statements in writing relating to property, or may be requested to answer questions and provide documents that are of more general relevance to the investigation (sub-sections 14(c) and (d)).

The CFA made the following key findings:

  • The privilege against self-incrimination, although a Basic Right, is not absolute and may be restricted if the relevant provision provides for such a restriction either expressly or by way of necessary implication (known as the principle of legality). The CFA found that the wording in section 14(4) contains such a clear abrogation. Section 14(4) stipulates that a notice received under s14 shall be complied with “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…” Mr Justice Ribeiro in his judgment (para 74) pointed out that the rules on privilege were “such other rule of law”.
  • Section 20 POBO which sets out the permitted use of the information obtained under section 14 is to be construed narrowly, that is

a. allows derivative use of such information. This means that there is no prohibition against using the compulsorily obtained answers and documents to develop new lines of inquiry; to identify sources of independent evidence; to assist in formulating applications for search warrants; and so forth. This was not in issue between the parties in light of previous clear case law which provides that information obtained in the course of investigations can be put to derivative use, even if the incriminating material points to the culpability of the non-suspect person;

b. allows only limited direct use of the statutory declarations and statements in writing obtained under section 14(a),(b) or (c). Such direct use is strictly limited to

i. use in proceedings under the POBO brought against the provider of the declaration/statement,

ii. situations in which the suspect decides to take the witness stand, and

iii. use of such information to discredit the suspect rather than as evidence;

c. allows no direct use whatsoever of information and documents obtained from “another person” under section 14(d).

  • The logic behind the above distinction between limited direct use of statutory declarations and written statements made under section 14(a),(b) or (c) on the one hand and no direct use of information and documents under section 14(d) on the other hand is that statutory declarations and written statements may be prepared with care and with the help of legal advisors and that a request for information and/or documents under section 14(d) is much more intrusive.

It is not entirely clear whether the CFA would apply the same approach to a party’s right to rely upon legal professional privilege more generally. However, both judgments (Bokhary PJ at para 23 and Ribeiro PJ at para 74) contain language that suggests that section 14 may abrogate the right to rely upon legal professional privilege more generally, save for the right of legal advisers to resist disclosure of legally privileged information which is expressly provided for in section 15 POBO. However, any indications made to that effect are strictly obiter and it remains open for a party to argue that the right to legal advice privilege persists, in particular in light of the fact that courts tend to take a more robust view in relation to the privilege against self-incrimination compared to other types of privilege.

Conclusion

Although the judgments of the CFA relate to investigation notices under POBO and the ability to rely on the privilege against self-incrimination, they provide valuable guidance on the wider approach to be adopted when considering whether and to what extent privilege may be invoked in the context of investigations more generally. Based upon the CFA’s reasoning the relevant questions to ask and factors to take into account are likely to be as follows:

  • Does the statutory provision relied upon by the investigatory authority provide either expressly or by necessary implication for an abrogation of rights to rely upon privilege? When answering that question, the relevant provision will need to be read in the context of other provisions of the same statute. In the case of the POBO, section 15 which expressly preserves legal professional privilege in relation to legal advisors was used as argument that privilege was otherwise meant to be abrogated.
  • If privilege is abrogated, how may the information obtained under compulsion be used? It would appear that it is settled law that derivative use is generally allowed (whether one agrees with this approach or not). However, direct use is much more problematic and where use under the relevant statute is not sufficiently restricted this may result in either the abrogation of privilege or the direct use being unconstitutional