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it cannot be assumed that every time an offence under the Ordinance has been alleged or suspected to have been committed, and an investigation is underway, it necessarily leads to a person being charged. The allegations and suspicions may, ultimately, turn out to be groundless. The protection of the reputation of suspects, who may have to undergo the opprobrium of investigation over a long period, is a matter of considerable importance: particularly if the suspect is a Crown servant having to perform his duties vis-a- viz the public in the meanwhile. No time limit is imposed by statute for the process of investigation."
It is no answer to say that the law of defamation can protect the reputations of suspects. Truth is a defence to an action in defamation. A disclosure of the fact that a person is being investigated by the ICAC, if true, would not therefore give that person any remedy in defamation.
The effect of Mr Ho's amendment would be that a person could make a malicious report to the ICAC of corruption by a particular person and then disclose to the media the fact that the person was under investigation. The media could then publish the story, with the result that the person's reputation was seriously tarnished. Provided the disclosures were not likely to prejudice the investigation, no offence would have been committed.
It may be argued that persons who are under investigation for non-corruption offences do not have any protection for their reputations beyond that provided by the law of defamation. But corruption offences are in a category of their own, and call for special measures, both to further investigations and to protect those subject to investigation. There are several reasons why corruption suspects need special protection -
a large percentage of allegations received are, after investigation, not substantiated
the ICAC is under a duty to investigate all allegations and is given special powers to do so
a corruption investigation may continue for a long period of time
a serious stigma attaches to corruption, and those under investigation for corruption, however innocent, may be unfairly tainted.
The ICAC has quite properly been given special powers of investigation, but hand in hand with those powers must go special measures to protect suspects who may be entirely innocent. Mr Ho's proposed amendment offers no protection to the reputation of suspects.