Disclosure of ICAC investigation

On 23 January 2024, a woman was handed a 100-hour community service order at the Eastern Magistrates’ Courts for disclosing the identity of a person under the ICAC investigation.

The court heard that in mid-August 2022, the ICAC received an email sent by the defendant complaining that a bank customer might have bribed a staff member of a bank for assistance in securing a loan. The defendant was subsequently reminded by ICAC officers not to disclose the report to others, otherwise she would have contravened section 30 of the Prevention of Bribery Ordinance (Cap 201) (the “POBO”).

Investigation revealed that in mid-September 2022, the defendant sent an email to the bank which disclosed that the bank customer was the subject of an ICAC investigation and details of the investigation.

To protect the integrity of an investigation and reputation of persons under suspicion, the POBO provides two statutory offences of unlawful disclosure.

It is an offence for any person who, knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II of the POBO is taking place, without lawful authority or reasonable excuse, to disclose to any person who is the subject of the investigation (the “subject person”), the fact that he is the subject of such investigation or any details of that investigation (section 30(1)(a) of POBO); or

It is an offence for any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II of the POBO is taking place, without lawful authority or reasonable excuse,to disclose to the public, a section of the public or any particular person either the identity of the subject person or the fact that the subject person is the subject of the investigation or any details of such investigation (section 30(1)(b) of POBO).

The penalty upon conviction for these offences is a fine of HK$20,000 and imprisonment for one year.

Under section 30(2) of the POBO, disclosure would cease to be an offence where, in connection with such investigation:-

a warrant has been issued for the arrest of the subject person;
the subject person has been arrested whether with or without warrant;
the subject person has been required to furnish a statutory declaration or a statement in writing by a notice served on him under the POBO;
a restraining order has been served on any person under the POBO
the residence of the subject person has been searched under a warrant issued under the POBO; or
the subject person has been required to surrender to the Commissioner of the ICAC any travel document in his possession.

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