ICAC Investigations | Hong Kong Criminal Law Firm

THE INDEPENDENT COMMISSION AGAINST CORRUPTION

An independent agency with extensive investigative powers.

The Independent Commission Against Corruption (the “ICAC”) was established in 1974. It operates independently of the civil service and the Hong Kong Police Force, and the Commissioner is directly responsible to the Chief Executive of the Hong Kong Special Administrative Region.

Corruption is frequently concealed through private arrangements, financial transactions and indirect benefits. The ICAC is therefore armed with a wide range of investigatory powers. The precise power, statutory threshold and need for a warrant or court order depend on the action being taken and the legislation relied upon.

SOURCES OF STATUTORY POWER

The ICAC's extensive authority is derived principally from the Independent Commission Against Corruption Ordinance, the Prevention of Bribery Ordinance and the Elections (Corrupt and Illegal Conduct) Ordinance.

Independent Commission Against Corruption Ordinance (Cap. 204)

This Ordinance establishes the ICAC, safeguards its institutional independence and defines its principal enforcement powers. Subject to the statutory requirements applicable in each case, ICAC officers may arrest without warrant on reasonable suspicion, detain and grant bail, search and seize evidence, and deal with other offences disclosed during a corruption investigation. An arrested person must be brought before a Magistrate as soon as practicable and, in any event, within 48 hours unless released earlier.

Prevention of Bribery Ordinance (Cap. 201)

This Ordinance defines the principal public- and private-sector corruption offences and provides specialised investigative measures. Depending on the statutory threshold and, where required, judicial authorisation, these include access to bank accounts, compulsory production or examination of business and private records, sworn information about assets, income and expenditure, restraint of property, and orders requiring the surrender of travel documents while an investigation is continuing.

Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554)

This Ordinance protects the integrity of specified public elections. The ICAC investigates alleged vote-buying, unlawful election expenses, false or misleading election conduct and other corrupt or illegal conduct falling within the Ordinance.

GENERAL SCOPE OF OFFENCES

Public-sector, private-sector and electoral corruption.

The ICAC's criminal investigative jurisdiction is structured around three principal areas. The applicable offence and the prosecution's burden must be considered by reference to the relevant statutory provision and the facts of the individual case.

Public-sector corruption

Public-sector cases concern government departments, prescribed officers and public bodies. It may be an offence for a public servant to solicit or accept an unauthorised advantage as an inducement or reward connected with the performance or abuse of official duties. The Ordinance also addresses prescribed officers who maintain a standard of living, or control assets, that are disproportionate to their present or past official emoluments and cannot be satisfactorily explained.

A section 4 bribery offence tried on indictment carries a maximum penalty of seven years' imprisonment and a fine of HK$500,000. Bribery concerning public contracts under section 5, and bribery for procuring the withdrawal of tenders under section 6, may carry a maximum of ten years' imprisonment and a fine of HK$500,000.

Private-sector corruption

Private-sector cases concern commercial businesses, trades and other principal-agent relationships. Under section 9, an employee or other agent must not, without lawful authority or reasonable excuse, solicit or accept an advantage in relation to the principal's affairs or business. Permission must satisfy the statutory requirements. The person offering the advantage and the agent accepting it may each commit an offence.

A section 9 offence tried on indictment carries a maximum penalty of seven years' imprisonment and a fine of HK$500,000. If tried summarily in the Magistrates' Courts, the maximum is three years' imprisonment and a fine of HK$100,000.

Electoral offences

The Elections (Corrupt and Illegal Conduct) Ordinance applies to the specified public elections and regulates conduct before, during and after an election period, whether occurring in Hong Kong or elsewhere. The ICAC is the principal law-enforcement agency investigating vote-buying, illegal election expenses, fraudulent campaign conduct and other alleged contraventions of the Ordinance.

The precise offence, available defence and maximum penalty depend on the provision alleged to have been contravened.

THE INVESTIGATION

Financial evidence, compulsory powers and personal liberty.

An ICAC investigation may involve arrest, detention, interviews, searches, seizure of physical and digital material, examination of bank accounts and business records, and enquiries into a suspect's assets, income and expenditure. Some powers may be exercised only when the statutory conditions are met or after an appropriate court order has been obtained.

The Prevention of Bribery Ordinance also provides mechanisms concerning travel documents and the restraint of property. A Magistrate may be asked to order the surrender of a travel document where the statutory requirements are satisfied, thereby restricting departure from Hong Kong while the investigation continues.

An independent agency with extensive investigative powers.