The Independent Commission Against Corruption was established in 1974 and is armed with a wide range of investigatory powers. The Prevention of Bribery Ordinance, Cap 201 and the Independent Commission Against Corruption Ordinance, Cap 204 address the powers and the areas of investigation for the ICAC. The offences with which the ICAC are concerned are primarily public sector corruption and private sector corruption. The most important prohibition is in respect of the solicitation or acceptance (or offering to solicit or accept) unauthorized advantages (often referred to as bribes). Other issues can arise where the ICAC compulsorily require the disclosure of financial information or demand the surrender of a passport whilst an investigation is ongoing.
Bribery and Corruption
We are experienced in assisting and advising in bribery and corruption investigations by the ICAC. Specific areas of concern in a corruption investigation are secrecy provisions; arrest; search; legal professional privilege; interviews; detention; bail; requests for information; charge; maintenance of the business while an investigation is on-going; pre-trial preparation (including access to and examination of unused materials); trial; restraint and forfeiture of assets. We also advise companies confidentially on corruption prevention.
Areas of focus:
Prevention of Bribery Ordinance, Sections 4 and 9
The Independent Commission Against Corruption Ordinance, Cap 204
Interception of Communications and Surveillance Ordinance
Misfeasance or misconduct in Public Office, contrary to Common Law
Offering an Advantage contrary to section 9 of the Prevention of Bribery Ordinance
Return of Travel Documents under section 17B of the Prevention of Bribery Ordinance, Cap 201
Special powers of investigation under section 13 and 14 of the Prevention of Bribery Ordinance, Cap 201
Surrender of Travel Documents on the application of the ICAC under section 17A of the Prevention of Bribery Ordinance, Cap 201
ICAC officers are given different sources of powers of arrest. They can arrest a person during an investigation without a warrant under section 10 of the ICAC Ordinance if they reasonably suspect that person has committed a bribery or corruption offence. They can also arrest for certain offences without a warrant under section 101 of the Criminal Procedure Ordinance. ICAC officers can also apply for a warrant of arrest from a Magistrate by laying information alleging the commission of the offence by a person who they want to arrest. It is essential to determine from the ICAC officer concerned whether a person is being invited for questioning or is under arrest as various consequences flow according to that status. In either case, you are entitled to have legal representation. Often the ICAC requests to conduct the questioning of a suspect by video recorded interview.
The ICAC has its own Detention Centre at its North Point Headquarters and has the power to detain persons who are under arrest. See also Bail under General.
Bribery and Corruption Cases in the Public Sector
Section 4 of the Prevention of Bribery Ordinance addresses bribery of public servants. It deals with both creation of offences and the creation of defences. To establish an offence under section 4, the Prosecution must prove the solicitation of an advantage by a public servant; that the solicitation was to perform an act; the act was performed by him as a public servant; and the public servant knew that the act was within his public capacity. The word “advantage” means a benefit which can include a loan, a reward, a gift or a fee. In the context of the legislation, it means a bribe.
Bribery and Corruption Cases in the Private Sector
Section 9 of the Prevention of Bribery Ordinance deals with private sector corruption making it an offence for any agent, without lawful authority or reasonable excuse, to solicit or accept an advantage as an inducement to or reward, for doing certain acts in relation to his principal’s business. Under section 9(2) it is an offence for any person to offer an advantage to an agent without lawful authority or reasonable excuse.
Please read also this appeal case 香港特別行政區 訴 叶鋒 HCMA 251/2017 in which the appellant was represented by MCS.
Conspiracy to Defraud
Under certain circumstances, the ICAC can switch the focus of their investigation from bribery and corruption to other offences. Often this can result in a conspiracy to defraud allegation. See Update : Conspiracy to Defraud
Special Powers of Investigation
The ICAC have been given special powers of investigation to combat corruption. These include the power to enter government premises and require the provision of information; the power (after application to the Court) to obtain information from the Inland Revenue Department; and the power to compel information from suspects and third parties to provide information in relation to dealings in property under section 14 of the Prevention of Bribery Ordinance. The ICAC can also apply to the Court for a restraint order restraining assets such as money in a bank account.
Travel Documents / Passports
Unusually (and unlike the Police) the ICAC can make an application before a person is charged for the surrender of that person’s travel documents/passports to the Court. If you are served with an order and the surrendering of your travel document results in unreasonable hardship to you, we can assist you in an application to the Court for the return of your travel documents under sections 17B and/or 17BA of the Prevention of Bribery Ordinance.
The above emergency hotline is intended for clients who are in need of urgent legal representation outwith office hours.
During office hours, we encourage you to make an appointment for an initial consultation. You can either call one of our lawyers directly or e-mail us your contact details with a brief description of the nature of your enquiry. We will contact you shortly after receipt of your enquiry.
All information contained in our entire website is strictly for informational purposes only, it is neither legal advice nor a substitute for legal advice.