the defence, but not a compellable one. However, as early as 1849, Parliament decreed that a bankrupt, in his public examination, was bound to answer all questions touching matters relating to his
"trade dealings or estate or which may tend to disclose any secret grant conveyance or concealment
of his lands, tenements, goods, money, or debts”.
He committed an offence if he failed to answer questions on these topics. Today, in Hong Kong (as in England) in the public examination of a debtor
"the court may put such questions to the debtor as it may think expedient".
He is examined on oath. Failure to answer any question is a contempt, punishable as such. His answers may be recorded; and may be used in evidence against him.
152. A similar situation obtains under the Inland Revenue Ordinance. Under various sections of the Ordinance, officials of the Inland Revenue Department may issue notices requiring the taxpayer to submit information for the purpose of tax assessment, and they may summons the taxpayer to answer questions. Failure to comply with such notices and to answer questions renders the taxpayer liable to a penalty [section 80]; and if he gives a false answer to any question, he is liable to a number of financial penalties and to imprisonment for 3 years [section 82]. If the taxpayer has been guilty of tax evasion, it is not open to him to argue that by answering the questions put to him he would be incriminating himself, and that he may therefore plead some kind of "right of silence and privilege against self-incrimination".
153. In Clinch v. Inland Revenue Commissioners(), Mr. Justice ACKNER said:-
"The so-called 'right of silence' currently alleged with such emphasis and fervour by many lawyers as going to the very root of British notions of justice, seems to find no place in the field of tax avoidance- a fortiori where tax evasion is concerned. Mr. POTTER [counsel for the Commissioners] tells me that in the field of Value Added Tax the inquisitorial powers of the Customs and Excise Commissioner far exceed those of his clients. ... far from being entitled to remain silent, the individual is subject to penal sanctions if he refuses to supply the very information that may lead to his conviction. Had such powers been reserved for use in the detection of the most serious offences in the criminal calendar, doubtless there would have been, not acclamation, but a public outcry, judged by the emotion that has been generated by the recent suggestion of a very learned Law Reform Committee . . . when one explores this aspect of legal philosophy, there seems to be much that is irrational.”
With these observations I respectfully agree. If that is the modern enlightened view taken in matters of tax evasion, I see nothing extraordinary in asking the legislature to take an equally realistic view as regards suspected corruption. The innocent have nothing to fear in answering a notice issued under section 14(1) of Cap. 201; and I see no reason why a suspect should be permitted, with impunity, to ignore such a notice.
154. I therefore recommend that subsection (4) of section 14 be restored to its original form by the deletion of the words
"other than the person referred to in paragraphs (a) and (b) of subsection (1)”.
Section 17
155. Subsection (1) of this section reads:
"17(1) If it appears to the Attorney General, or to the Director, that there is reasonable cause to believe that in any place, other than an office, registry or other room of or used by a public body, there is any document or thing containing any evidence of the commission of an offence under this Ordinance, the Attorney General or the Director may, by warrant directed to any police officer, empower such police officer to enter such place, by force if necessary, and there to search for, seize and detain any such document or thing."
156. I do not know why it was considered necessary to give equal power to the Attorney General and the Director. In one case which was brought to my attention, the question arose as to whether a search warrant should be executed with a view to obtaining evidence in support of a section 10 prosecution. The Attorney General had delegated his powers under section 17 to his Assistant. The Assistant took the view that there was not reasonable cause to believe that there was any document or thing containing evidence of the commission of an offence; and he refused to sign a search warrant. There is a note in the relevant Anti-Corruption Office records which reads:
"The A.G. 'will not sponsor a witch hunt' ".
(1) [1973] 2 W.L.R. page 862 at page 870.
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