XN000022-1995-05-17 — Page 34

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Control by the courts

The first category relates to certain of the powers at present vested in the Commissioner, ICAC, which are to be transferred to the courts. In particular, court approval will be needed in order for the ICAC to require a person to supply information under section 14 of the Prevention of Bribery Ordinance, to search premises (save in exceptional cases), or to prevent a suspect from disposing of property.

Bill of Rights Ordinance

The second category of amendments are to ensure that the legislation relating to the ICAC is consistent with the Bill of Rights Ordinance. The amendments will provide -

(a)

that the Commissioner's special powers of investigation arise only if he has reasonable cause to believe that an offence under the Prevention of Bribery Ordinance may have been committed;

(b)

(c)

that the Commissioner's power to apply to a magistrate for a notice requiring a person to surrender his travel documents arises only if he reasonably suspects that person to have committed such an offence:

that a person who has surrendered a travel document has the option of applying to the Commissioner of the ICAC, or a magistrate, or both, for its return; and

(d) that a statutory declaration or written statement made in compliance with a requirement under the Prevention of Bribery Ordinance will be admissible in evidence against the person who made it only if he gives evidence that is inconsistent with it.

Provisions in the Prevention of Bribery Ordinance that create a presumption of corruption and allow a court to comment on the failure of an accused to give evidence are to be repealed.

The opportunity presented by the Bill is taken to amend section 10(2) of the Prevention of Bribery Ordinance in order to ensure that it is safe from challenge under the Bill of Rights Ordinance. Section 10(1) makes it an offence for a Crown servant to maintain a standard of living above that which is commensurate with his official emoluments, or to be in control of pecuniary resources or property disproportionate to those emoluments. The importance of section 10 was recognised in a recent case decided by the Court of Appeal. I quote from the decision: