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The fact that section 30 is consistent with the Bill of Rights Ordinance does not mean that this Council cannot decide, as a matter of policy, to amend the section. The question, therefore, is whether section 30 should be amended and, if so, in what way.
The Administration's proposals
The Report of the ICAC Review Committee concluded that "No changes should be made to section 30, which strikes the right balance between the need to protect the reputation of an individual under investigation and the secrecy of an investigation at the covert stage on the one hand, and the freedom of expression on the other." The Bill does not therefore include any provision to amend section 30.
Some members of the Bills Committee nevertheless considered that there should be some relaxation of the restrictions in the section. The Administration has listened carefully to those views and has agreed that subsection (1) of section 30 should be amended as follows:
firstly, the offence will be expressly limited to disclosures made by a person who knows or suspects that an ICAC investigation is taking place; and
secondly, it will only apply to disclosures relating to an investigation into an offence under Part II of the Ordinance;
The proposed new clause 13A will achieve this. I will shortly be moving the addition of a new clause 13B which will further limit the scope of section 30.
As well as proposing these relaxations to the section, the Administration strongly believes that a recently discovered loophole in section 30 must be plugged. The Privy Council decided in the Ming Pao case that section 30 applies only to an investigation in respect of a specified person. Disclosure of the details of a general investigation, as occurred in that case, is not an offence.
The Privy Council came to its decision as a matter of statutory interpretation. It did not express any view as to whether there is any justification for distinguishing between the two types of investigation. The Administration strongly believes that there is no justification for such a distinction. A general investigation needs to remain covert, and is equally vulnerable to being prejudiced by a disclosure as one in respect of an identified suspect.
It is undeniable that an investigation may be prejudiced by a disclosure even though no particular suspect has been identified. For example, an investigation may A relate to a small group of people, one of whom is in fact a corrupt person. disclosure of details of that investigation may be as damaging as one which relates to an investigation into that person. The corrupt person may destroy all evidence of his corruption or may disappear.