ICAC INVESTIGATIVE POWERS
Special statutory tools for investigating concealed transactions and assets.
Corruption is commonly concealed through private arrangements, intermediaries, financial transactions and property held in different names. The ICAC has therefore been given special powers of investigation under the Independent Commission Against Corruption Ordinance (Cap. 204) and the Prevention of Bribery Ordinance (Cap. 201).
These include powers concerning entry into government premises and the provision of information; judicially authorised access to information held by the Inland Revenue Department; compulsory notices requiring suspects and third parties to disclose financial and property information; and court orders restraining specified property.
Each power has its own statutory threshold, procedure and scope. A notice or order should be examined by reference to the precise provision relied upon rather than treated as a general demand for unlimited disclosure.
A SNAPSHOT OF THE SPECIAL POWERS
Authority, procedural requirement and information sought.
Entry into government premises
Statutory authority: Section 13, Cap. 204
Procedure: Exercise of the Commissioner's statutory authority subject to the requirements of the section.
Scope: Government offices, registries, records and other material relevant to an authorised corruption investigation.
Inland Revenue information
Statutory authority: Section 13, Cap. 201
Procedure: Judicial authorisation under the statutory procedure.
Scope: Information held by the Inland Revenue Department that falls within the terms of the authorisation.
Compulsory financial disclosure
Statutory authority: Section 14, Cap. 201
Procedure: A written notice issued under the statutory authority.
Scope: Asset statements, income, expenditure, liabilities, accounts, transactions, property dealings and supporting records.
Restraint of property
Statutory authority: Section 14C, Cap. 201
Procedure: An ex parte application by or on behalf of the Commissioner to the Court of First Instance.
Scope: Specified property held or controlled for a suspected person, or property due to that person from a third party.
COMPELLING INFORMATION FROM SUSPECTS AND THIRD PARTIES
Section 14 creates a compulsory financial-disclosure mechanism.
The Commissioner may issue a written notice requiring the information, statements and documents specified by section 14. The notice must identify what is required and the time for compliance.
Statements from the person under investigation
A section 14 notice may require a person under investigation to furnish a statutory declaration or written statement identifying property owned or possessed by that person, or in which that person has an interest, whether in Hong Kong or elsewhere. It may also require details of expenditure, liabilities, income and the sources from which property was acquired.
Information and records from third parties
The statutory power is not confined to the suspect. A notice may require another person whom the Commissioner believes to be acquainted with relevant facts to provide information and produce documents concerning property dealings or other matters within the section. Depending on the evidence, this may include relatives, business associates, professional advisers, companies and financial institutions.
Legal professional privilege
The Ordinance contains specific provisions concerning legal advisers and privileged information. A section 14 notice does not create an unrestricted right to obtain legally privileged communications. The precise request, the capacity in which a solicitor acted and the statutory protection must be examined carefully.
Failure to comply or false information
A third party who, without reasonable excuse, neglects or fails to comply with a section 14 notice commits an offence. Wilfully making a false statement in answer to the notice is also an offence. The applicable maximum is a fine of HK$20,000 and one year's imprisonment. Different evidential provisions apply to statements required from the person under investigation.
COURT OF FIRST INSTANCE RESTRAINT ORDERS
Section 14C preserves specified property during an investigation or prosecution.
On an ex parte application by or on behalf of the Commissioner, the Court of First Instance may make a restraint order where the statutory conditions are met. The order may concern property held or controlled by a person under investigation or prosecution, property due to that person, or property held by a third party for or on behalf of that person.
Depending on its terms, an order may restrain dealings with bank balances, investments, shares, land or other assets. The order may impose conditions and may exempt property or periodic payments, including provision for reasonable living or legal expenses where the court considers that appropriate.
A section 14C restraint order initially continues in force for 12 months. On the Commissioner's application, the court may extend it for further periods of 12 months. If criminal proceedings are instituted while the order is in force, the statutory provisions govern its continuation until those proceedings and any related order have been finally dealt with.
Dealing with restrained property contrary to the order is an offence. The order, the property it covers, any permitted exceptions and the procedure for seeking variation should therefore be reviewed promptly.
HOW MCS CAN ASSIST
Advice on compulsory notices, privilege and restrained property.
MCS can review a compulsory notice or restraint order, identify the information and property within its scope, advise on the deadline and manner of compliance, preserve claims to legal professional privilege and communicate with the ICAC where clarification or additional time is required.
Where property has been restrained, we can advise on an application to vary or discharge the order, permitted living or legal expenses and the evidence required to address ownership, control and the risk of dissipation.