Conviction should end ICAC probe theatrics
Tony Kwok urges commission to examine other cases where opposition politicians made a public show of their complaints
On May 11 opposition activist Avery Ng Man-yuen, chairman of the League of Social Democrats, was found guilty under Section 30 of the Prevention of Bribery Ordinance of disclosing details of an Independent Commission Against Corruption investigation against a senior Hong Kong civil servant, involving a complaint he lodged in 2016.
He was alleged to have, as soon as he lodged the complaint at ICAC, immediately revealed on his Facebook page and to reporters that the said civil servant was under ICAC investigation, despite ICAC investigators warning him several times that it was an offense to do so.
During the trial, he and his lawyer attempted to use “public interest” as a defense. The trial magistrate refuted this, concluding from the evidence that Ng disclosed such information purely to raise his political profile; it had nothing to do with public interest as he had argued. He is now facing a jail sentence as the trial magistrate had remanded him in custody pending a community service order but at the same time indicated he would use four months’ jail as a starting point for sentencing, because Ng did not show any remorse. Indeed Ng had a previous conviction last year for throwing an object at the then chief executive in 2016.
Section 30 of the bribery ordinance is in fact a very straightforward legislation, stating that any person who divulges any details of an ICAC investigation, while it is in the covert stage, commits an offense unless he has lawful authority and reasonable excuse. The maximum penalty is one year imprisonment and a HK$20,000 fine.
The legislation serves two purposes. The first is to protect the ICAC investigation by preventing the suspect under investigation becoming aware of such fact and hence taking steps to prejudice the investigation or simply to abscond. But many people did not seem to appreciate the second objective, which is to protect the reputation of the suspect.
In a classic case of this offense under Attorney General v Ming Pao (1995) when the newspaper was prosecuted by ICAC for revealing the details of an ongoing secret ICAC investigation, the case went to the Court of Appeal in Hong Kong and the Privy Council in London. Both courts concluded in quite strong terms the necessity for such legislation. In the Hong Kong Court of Appeal, then vice-president Henry Litton aptly concluded: “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 duties vis-a-vis the public in the meanwhile.”
In another appeal case under Section 30, the Appeal Judge Line said: “It is not difficult to set in train an ICAC investigation. Acting in breach of this section provides a very means to harm your neighbor. It follows that those who are the subject of investigation deserve and have protection of their reputations until such that it is right for the public to be made aware of it.”
He also said it is important that conduct such as this is seen to be met by immediate imprisonment. That is exactly what Ng deserves!
The conviction of Ng should ring an alarm bell for opposition parties. In recent years they and their cohorts have abused this law by creating media spectacles in front of the ICAC headquarters building whilst lodging public complaints, and at the same time displaying big banners revealing the identity of the public figures they complained against.
What I find most distressing is that among the abusers is a former ICAC investigator. It is unlikely he did it out of ignorance as this is one of the basic questions asked in ICAC qualifying examinations. One can therefore conclude he did it purely to advance his political career. With the conviction of Ng setting the right legal precedent, ICAC should revisit all previous public protests outside its headquarters and examine whether there are cases requiring follow-up criminal investigations under Section 30 offenses. In particular, the said former ICAC investigator’s case should be looked into as it resembles that of Ng. He had disclosed to the public that he is the complainant in an ICAC investigation of then chief executive Leung Chun-ying, then disclosed to the public details of the investigation. The public would expect ICAC to pursue their former colleague with equal rigor.
Indeed the political party he belongs to, the Democratic Party, has been plagued with integrity scandals in recent years. One of its members had falsely claimed to be kidnapped by mainland officers. Equally scandalous was the recent case of Legislator Ted Hui Chi-fung, who is now under police investigation for snatching a female civil servant’s mobile phone right inside the Legislative Council building. If the party wants to resurrect their previous glory as the No 1 political party in Hong Kong, they must first reeducate their members on basic integrity and morality.