TNAG-1555-FCO40-2119-Broadcasting-in-Hong-Kong-1986 — Page 112

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Disadvantages Few people have realised the potential of section 34, if it were to be amended as shown in the options. It would give the prosecution an investigative device without precedent in Hong Kong or the United Kingdom. It will evitably provoke controvery once its potential is realised. It may be criticised for being a secret tool for the

examination of witnesses. But it should be noted that security is important and police investigations present take place in private.

The taking of evidence ex parte, in secret, on oath

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Commissions set up by the Governor in Council under section 2 of the Commissions of Inquiry Ordinance, Chapter 86, are able to compel testimony and the production of evidence. As would be expected, section 7 of the Ordinance gives the protection of privilege against self incrimination, as does the American grand jury. That section provides that evidence given by any person before a Commission of Inquiry shall not be admissible in any civil or criminal proceedings by or against him except where he is charged with any offence under Part V [Perjury] of the Crimes Ordinance or is proceeded against under sections 8 and 9 of Chapter 86 [essentially obstruction of the inquiry or contempt]. The privilege under section 7 is a limited privilege. It is limited only to the testimony given by the witness. Thus, if that testimony gave the Police a basis for finding other evidence against that witness, the evidence subsequently discovered would not be privileged and would be admissible. The immunity is not against prosecution for the offence disclosed by the witness - it is only against the testimony he gave to the Commission of Inquiry.

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Commissions of Inquiry may be ordered into any matter of public importance : section 2(1). The threat to the public posed by the most well organised triad societies could merit the use of such power, were the commission a suitable device to pursue an investigation. It is not, since it is designed to examine specific incidents or focus public attention, rather than to conduct an investigation in secret into a dangerous criminal conspiracy.

Option

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The option thus is to create statutory machinery that is able to record evidence on oath in secret. This machinery would allow investigation of triad and organised crime to take place without the obvious apparent danger of interference with its investigation.