According to Article 10 of the Independent Commission Against Corruption Ordinance, if an ICAC officer reasonably suspects that a person has committed bribery, corruption or extortion, no warranty is required. According to the interpretation of the Court of Final Appeal in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137, the standard of “reasonable suspicion” is objective and reasonable, depending on the facts and extent of the case. Since the nature of each case is different, the court will make a decision based on the facts of the case when hearing the case.
ICAC officers have to inform the detainee of the reason for the arrest and the right to remain silent. The detainee must also be notified of his rights of silence, seeking legal advice and asking for lawyers for accompaniment before taking a statement. In 香港特別行政區訴梁偉倫 HKCFI 1178, the appellant was an assistant to a district councillor and was accused of conspiring to defraud the operating expenses of the Home Affairs Department. Since the two investigators of the ICAC differed in their statements, the judge believed that the appellant’s suspicious statement was addressed without any warning from the ICAC investigators, and therefore should not adopt the statement. Therefore, if a statement is made without warning or is made after a warning without a record, the court will not support that statement.
Individuals detained by the ICAC can be taken to the police station and handled in accordance with the Police Force Ordinance (Chapter 232), or they can be taken to the ICAC office. If a senior ICAC officer or above considers that further investigation is necessary, that person can be detained (section 10A). The Independent Commission Against Corruption (Handling of Detainees) Order (Chapter 204A) sets out the rights of detainees, such as allowing them to communicate with legal advisers, and providing reasonable arrangements for their comfort, such as food and basic facilities . In the conspicuous places of the detention room and the ICAC office, a ‘Notice to the Detained’ must be posted to list the rights of the detained. The arrested person can be released on bail under the following conditions: deposit a reasonable amount of money in the ICAC or provide a guarantee. They need to report to the ICAC or appear in the Magistrates’ Court at a designated time, otherwise their bail money will be confiscated.
Article 30 of the Prevention of Bribery Ordinance also prohibits anyone from disclosing the identity or details of the person under investigation by the ICAC to the public or specific persons. Otherwise, they may be sentenced to 1 year in prison and fined $20,000. This article seeks to protect the identity of the person under investigation. In 2016, the Chairman of the League of Social Democrats, Avery Ng, disclosed to the public that the Permanent Secretary of Home Affairs at that time, Betty Fung, was under ICAC investigation. He was sentenced to 4 months in prison as he violated the Prevention of Bribery Ordinance. The Court of First Instance dismissed Avery Ng’s appeal on the grounds that the disclosure of the information would hinder the investigation. (See 香港特別行政區訴吳文遠 HKCFI 1485)
When being investigated by the ICAC, it is best to understand your own rights and then seek legal advice.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the lawyers at the Legal Aid Department for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.