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Experience has shown a need to include additional specified offences under section 10(5) of the Ordinance to cover circumstances which arise after Commission investigating officers have commenced an enquiry for a suspected offence under the Prevention of Bribery Ordinance. A typical example occurred where, after a full investigation of a suspected corruption offence, legal advice was given that the proper charge to bring against a suspect was that of simple theft under section 9 of the Theft Ordinance, Chapter 210, An application for a warrant of arrest had to be made to a magistrate before the accused could be arrested. If time allows, an application to a magistrate for a warrant of arrest is not a difficult process, but if an arrest has to be made quickly there could be problems.
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It is necessary to equip Commission investigating officers with the power of arrest for certain offences which they may ultimately find themselves investigating. Clause 2(b) provides for the expansion of section 10(5) to include the offences of theft, contrary to section 9 of the Theft Ordinance, and false accounting, contrary to section 19(1) of the Theft Ordinance. This latter offence is particularly akin to an offence under section 9(3) of the Prevention of Bribery Ordinance, and it may be only a detailed consideration of all the facts at the conclusion of the investigation which results in a decision by counsel that a charge should be placed under the Theft Ordinance, rather than under the Prevention of Bribery Ordinance. The Commissioner of Police has been consulted and has no objection to this amendment.
Authority to detain or bail suspects arrested by ICAC
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The power to detain or bail suspects under section 10A (2) of the Independent Commission Against Corruption Ordinance is set at the level of Assistant Director of the Commission, of which there are three in the Operations Department, the only Department of the Commission which is authorised to exercise this power. Arrests may be necessary at any hour of the day or night, depending on the time of receipt of a complaint on which immediate action is necessary, and the Commission maintains a reserve team throughout the 24 hour period, for this eventuality. Experience shows that setting the level for the authority at Assistant Director is too high for practical purposes when, in fact, a suspect may necessarily have been arrested before a report comes to the attention of an Assistant Director. It is proposed, therefore, to lower the minimum level of decision to detain or bail from Assistant Director to Senior Commission Against Corrup- tion Officer, still a senior rank, equating with that of a Senior Superintendent of Police. This level is quite adequate for such a decision. Clauses 3 and 8 provide the necessary amendments. In practice Assistant Directors will continue to authorise detention and bail when circumstances allow it, and as a further safeguard, a scrutiny of all arrests is carried out each work- ing day by the Director of Operations.
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