ICAC and SFC Investigations: What Each Can Compel

The one thing to know first: there is no right of silence before an SFC investigator

This runs against what many people expect, so it goes at the top.

Section 184(4) of the Securities and Futures Ordinance (Cap. 571) provides:

In other words, the risk of self-incrimination is not by itself a ground for refusing to answer. Section 184(1) makes it an offence to fail, "without reasonable excuse", to comply with a section 183 requirement.

What the Ordinance gives instead is not a right to refuse but a limit on admissibility — and that protection has a timing condition. The section 187(2) protection applies only where the person "so claims" before providing or making the explanation or statement, giving the further particulars, or giving the answer. It must be claimed before answering; afterwards is too late.

Section 187(1) correspondingly puts a duty on the investigator to inform the person first: the investigator "shall ensure that the person has first been informed or reminded (as the case may be) of the limitations imposed by subsection (2) on the admissibility in evidence" of the requirement and the answer.

The position of a person arrested and questioned at a police station is different; see your rights if arrested .

Two regimes, not two versions of one

They rest on different Ordinances with different powers and different safeguards:

Types of legal basis

Every power described below is [Statute] — a provision of an Ordinance.

Arrest

[Statute] Section 10(1) of the ICAC Ordinance provides: "An officer authorized in that behalf by the Commissioner may without warrant arrest a person if he reasonably suspects that such person is guilty of an offence under this Ordinance or the Prevention of Bribery Ordinance (Cap. 201) or the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) or, being a prescribed officer, is guilty of an offence of blackmail committed by or through the misuse of office."

Section 10(3) provides that "Any such officer— (a) may use such force as is reasonable in the circumstances in effecting an arrest under subsection (1) or (2)", and section 10(3)(b) provides that an officer "may, for the purpose of effecting such an arrest, enter and search any premises or place if he has reason to believe that there is in the premises or place a person who is to be so arrested" — the power carries a reason-to-believe precondition. Section 10(4) provides that "No premises or place shall be entered under subsection (3) unless the officer has first stated that he is an officer and the purpose for which he seeks entry and produced his warrant card to any person requesting its production, but subject as aforesaid any such officer may enter any such premises or place by force, if necessary." The closing words matter: entry under section 10(3) may be forcible.

[Statute] Section 10(2): another offence disclosed during the investigation. Section 10(1) is not the whole of the ICAC's power to arrest. Section 10(2) provides that where, during a Commission investigation of a suspected Cap. 201 or Cap. 554 offence, "another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence", provided either (a) he reasonably suspects that the other offence was connected with, or that its commission was directly or indirectly facilitated by, that suspected offence; or (b) "the other offence is one which is specified for the purposes of this subsection in subsection (5)".

[Statute] The offences specified under section 10(5). Section 10(5) provides that "The following offences are specified for the purposes of subsection (2)", in 17 paragraphs: perverting or obstructing the course of justice; under the Theft Ordinance (Cap. 210), theft (s. 9), blackmail (s. 23), fraud (s. 16A), obtaining property by deception (s. 17), obtaining pecuniary advantage by deception (s. 18), obtaining services by deception (s. 18A), evading liability by deception (s. 18B), making off without payment (s. 18C), procuring a false entry in certain records (s. 18D) and false accounting (s. 19); assisting an offender under section 90 of the Criminal Procedure Ordinance (Cap. 221); any offence under regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541); the offence under section 14(1A) of the United Nations (Anti-Terrorism Measures) Ordinance (Cap. 575) of dealing with certain property in contravention of section 8A of that Ordinance; the offence under section 14(4A) of the United Nations (Anti-Terrorism Measures) Ordinance (Cap. 575) of doing certain acts in contravention of section 11K, 11L or 11M of that Ordinance; conspiracy to defraud and conspiracy to commit any of the above; and attempting, or aiding, abetting, counselling or procuring, any of the above. So theft, fraud, blackmail, false accounting or perverting the course of justice disclosed in a corruption investigation carries the same warrantless arrest power.

What happens after arrest — detention at Commission offices and the 48-hour requirement — is set out in how bail works .

Search

[Statute] ICAC Ordinance section 10B opens "Without prejudice to section 17(1) of the Prevention of Bribery Ordinance (Cap. 201)" — the warrant power in this section runs alongside the Prevention of Bribery Ordinance search power, and does not replace it. Where "a magistrate is satisfied by information on oath that there is reason to believe that there is in any premises or place anything which is or contains evidence of the commission of any of the offences referred to in section 10", he may by warrant authorise an officer to enter and search.

[Statute] Search and seizure. Section 10C(1) of the ICAC Ordinance permits an authorised officer to "(a) search any person if he reasonably suspects that such person is guilty of any of the offences referred to in section 10"; "(b) search the premises or place in which any person was arrested under section 10, or the premises or place in which a person who evades arrest therein under section 10 was to be arrested, for evidence of any of the offences referred to in that section"; and "(c) seize and detain anything which such officer has reason to believe to be or to contain evidence of any of the offences referred to in section 10". Section 10C(2) provides: "A person shall not be searched under subsection (1) except by a person of the same sex." Section 10C(3) adds: "The powers conferred by subsection (1) shall not derogate from the power conferred on any officer by section 17 of the Prevention of Bribery Ordinance (Cap. 201) or a warrant issued thereunder." The two search regimes are concurrent, not alternatives.

[Statute] Fingerprints and photographs, and the duty to destroy them. Section 10D(1) permits an officer to take photographs, finger-prints and weight and height measurements of a person arrested under section 10 (or served with a summons for a section 10 offence). Section 10D(2) provides that those "identifying particulars" may be retained by the Commissioner, except that if "(a) a decision is taken not to charge the person with any offence; or (b) the person is charged with a section 10 offence but discharged by a court before conviction or acquitted at his trial or on appeal", the identifying particulars "together with any negatives or copies thereof, shall as soon as reasonably practicable be destroyed or, if the person prefers, delivered to that person". Section 10D(3) allows retention where the person has been convicted of a section 10 offence.

[Statute] Non-intimate samples, which may be taken without consent. Section 10D is not the whole of the ICAC's identification powers. Section 10E(1) provides that in an investigation of an offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if (a) the person is dealt with and detained under section 10A and (b) an officer of the rank of Senior Commission Against Corruption Officer or above (the "authorizing officer") authorizes it. Section 10E(2) requires the authorizing officer to have reasonable grounds for suspecting a serious arrestable offence and for believing the sample will tend to confirm or disprove its commission. Section 10E(4) lists eight things the person must be told first, including that he may or may not consent; that if he does not consent the sample will still be taken "by using reasonable force if necessary"; and that on a later conviction for any serious arrestable offence the DNA information may be permanently stored in the DNA database maintained under section 59G(1) of the Police Force Ordinance (Cap. 232). Section 10E(8) provides: "An officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample from a person pursuant to this section." Section 10E(9) defines a serious arrestable offence as "an offence for which a person may be arrested under section 10 and for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years" — both limbs matter: the offence must be one for which the person may be arrested under section 10, and carry a maximum of not less than 7 years.

[Statute] Section 17 of the Prevention of Bribery Ordinance provides a wider power. The ordinary route under sections 17(1) and (1A) is an ex parte application to a court: where the court "is satisfied that there is reasonable cause to believe that in any premises or place there is anything which is or contains evidence of an offence under this Ordinance", it may by warrant directed to an investigating officer named in the warrant empower that officer and any other investigating officer "to enter such premises or place, by force if necessary, and search the same". The closing words matter here too: entry may be forcible.

But note section 17(1B). It provides that notwithstanding subsections (1) and (1A), where the Commissioner himself is satisfied that there may be evidence in the premises and that "the making of an ex parte application under subsection (1) would seriously impede an investigation into, or proceedings relating to, an offence suspected to have been committed under this Ordinance", the Commissioner may issue the warrant. A Commissioner's warrant confers the same powers as a court's: to "enter such premises or place, by force if necessary, and search the same". So a search warrant does not in every case come from a court, and the power to force entry attaches to both.

[Statute] Protection for a lawyer's office. Section 17(2) opens "Without prejudice to any other law relating to entry and search" — it is not an absolute bar, but a further restriction sitting on top of the general law of entry and search. It provides that "the chambers of counsel or the office of a solicitor are not subject to entry and search under this section or any warrant issued under this section" except "in the course of investigating an offence under this Ordinance alleged or suspected to have been committed by that counsel or that solicitor, as the case may be, or by his clerk or any servant employed by him in such chambers or office". Note the closing limb: the exception is not confined to the lawyer — it reaches a clerk or a servant employed in those chambers or that office.

[Statute] Obstructing a search is an offence. Section 17(3): "Any person who obstructs or resists the Commissioner or any investigating officer in the exercise of the powers of entry and search under this section shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 1 year."

[Statute] What "court" means in this section. Section 17(4) provides that in section 17, "court" "means a magistrate and the Court of First Instance" — so the warrant application described above is not confined to the Court of First Instance.

Section 13: investigation on the Commissioner's written authorization

Not every ICAC route to documents and information runs through a court.

[Statute] Section 13(1) provides that where the Commissioner is satisfied there is reasonable cause to believe an offence under the Ordinance may have been committed and that specified accounts, books, documents or other articles "are likely to be relevant for the purposes of an investigation of such offence", "he may for those purposes authorize in writing any investigating officer on production by him of the authorization if so required" — "(i) to investigate and inspect such accounts, books or documents or other article of or relating to the person named or otherwise identified by the Commissioner"; and "(ii) to require from any person the production of such accounts, books, documents, or other article of or relating to the person named or otherwise identified by the Commissioner which may be required for the purposes of such investigation and the disclosure of all or any information relating thereto, and to take copies of such accounts, books or documents or of any relevant entry therein and photographs of any other article". The bracketed condition is one the reader can use: if you ask to see the authorization, it must be produced.

That authorization comes from the Commissioner, not from a court. A court enters in one situation only: section 13(1A) provides that "The Commissioner shall not, without the leave of the Court of First Instance obtained on ex parte application in chambers, issue an authorization under or by virtue of which any particular person who is alleged or suspected to have committed an offence under this Ordinance can be required to comply with any requirement of the description mentioned in subsection (1)(i) and (ii)." Section 13(1B) sets the threshold for granting that leave.

[Statute] Section 13(2)(a) provides that every authorization "shall be deemed also to authorize the investigating officer to require from any person information as to whether or not at any bank, company or other place there is any account, book, document or other article liable to investigation, inspection or production under such authorization".

[Statute] The duty to comply, and the offence. Section 13(3) provides that a person lawfully required under the section "shall, notwithstanding the provisions of other Ordinance or rule of law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance (Cap. 112), comply with such requirement"; and that a person who "fails or neglects, without reasonable excuse, so to do", or who obstructs the officer in executing the authorization, "shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 1 year".

Section 13(4) makes it an equally punishable offence to represent falsely that an appropriate authorization exists.

Section 14: property and expenditure information, where a Court of First Instance order is needed

[Statute] Section 14 of the Prevention of Bribery Ordinance is the principal route by which the ICAC obtains information about property and expenditure, and it runs through the court.

Section 14(1A) provides that the Commissioner or an investigating officer "may, for the purpose of an investigation into, or proceedings relating to, an offence suspected to have been committed by any person under this Ordinance, make an ex parte application to the Court of First Instance in chambers for an order under subsection (1)". Section 14(1) provides that the court may make the order only where it "is satisfied that there are reasonable grounds for suspecting that an offence under this Ordinance has been committed".

Section 14(1B) adds a further threshold: the court shall not make an order unless satisfied that there are reasonable grounds for suspecting — for an application relating to section 14(1)(c), "that the information to be required from the person being the subject of the application is likely to be relevant to the investigation or the proceedings"; and for one relating to section 14(1)(d) or (e), "that the person being the subject of the application has or may reasonably have access to information likely to be relevant to the investigation or the proceedings".

Once made, the order permits a written notice requiring, among other things, a statutory declaration or written statement enumerating the person's property, and for each item "specifying the date upon which, and the person from whom, each such property was acquired and whether by purchase, gift, bequest, inheritance or otherwise", over "the 3 years immediately preceding the date of such notice or during such shorter period as may be specified in such notice"; under the same paragraph, "and in respect of any property enumerated which has been disposed of, whether by sale, gift or otherwise, at any time during the 3 years immediately preceding the date of the notice or such shorter period as aforesaid, specifying how and to whom the same was disposed of and, where it was disposed of by sale, specifying the consideration given therefor"; under section 14(1)(a)(ii), expenditure incurred for the living expenses and other private expenses of the person, their spouse, parents or children over a specified period; under section 14(1)(a)(iii), "all liabilities incurred by such person, his agents or trustees, at such time or during such period as may be specified in such notice (not, however, being a time or a period commencing earlier than 3 years from the date of the notice), and specifying in respect of each such liability whether it was incurred jointly (and, if so, with whom) or severally"; and under section 14(1)(b), money or other property sent out of Hong Kong by or on behalf of the person.

[Statute] Consequences of not complying, or of a false statement. Section 14(4) provides that a person served with a notice shall, "notwithstanding the provisions of other Ordinance or rule of law to the contrary save only the provisions of section 4 of the Inland Revenue Ordinance (Cap. 112)", comply with the terms of that notice "within such time as may be specified therein or within such further time as the Commissioner may, in his discretion, authorize", and that a person who "without reasonable excuse, neglects or fails so to comply shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 1 year". The deadline on the notice is not immovable: the same subsection gives the Commissioner a discretion to authorize further time. Section 14(5) provides: "A person who wilfully makes any false statement in answer to a notice under subsection (1) shall be guilty of an offence and shall be liable to a fine at level 4 and to imprisonment for 1 year."

Legal professional privilege: protected, but with exceptions

[Statute] Section 15(1) is the general protection: "Save as is provided in this section, nothing in this Ordinance shall require the disclosure by a legal adviser of any privileged information, communication, book, document or other article."

But sections 15(2) and (3) create exceptions, and say so expressly. Section 15(2) provides: "Subject to subsection (4), the information referred to in section 13(2) and in section 14(2) may be required from a legal adviser as from any other person, notwithstanding that the effect of compliance with such a requirement would be to disclose any privileged information or communication." Section 15(3) opens the same way — "Subject to subsection (4), a legal adviser may be required by notice under section 14(1)(d)" — and permits such a notice to require a legal adviser to state whether he has acted for a named person in connection with the transfer of money out of Hong Kong or its investment, and to furnish the date and amount, the bank's name and address and account number, or the nature of the investment — again "notwithstanding that the effect of compliance with such a requirement would be to disclose any privileged information or communication".

Section 15(4) then cuts back. It provides that nothing in subsections (2) or (3) requires a legal adviser to comply where compliance would disclose privileged information or communications known to him by reason of proceedings commenced or contemplated in court, or for the purpose of giving legal advice to his client.

Section 15(5) defines "legal adviser" as a counsel or solicitor; section 15(6) extends the section's protection to a legal adviser's clerks or employees.

Surrender of travel documents

The regime in sections 17A and 17B — the 6-month period, the further 3-month extension under section 17A(6), and the "unreasonable hardship" threshold in section 17B(3) — is set out in how bail works . Three points bear directly on liberty and are stated here:

• Section 17A(3A) is a bar on leaving Hong Kong, not merely a duty to hand over a document — and the 6 months is not a fixed figure. The subsection opens "Subject to subsection (6)". Unless an application under section 17B(1) for the return of the travel document or under section 17BA(1) for permission to leave Hong Kong is granted, the person to whom the notice is addressed "shall not leave Hong Kong, whether or not the notice has been served on him under subsection (2), before the expiry of a period of 6 months from the date of the notice". The period rests on a power to extend it: section 17A(6) provides that "The period of 6 months referred to in subsections (3A) and (5A) may be extended for a further period of 3 months" if a magistrate, on the Commissioner's application, is satisfied that the investigation could not reasonably have been completed before the date of that application and authorizes the extension — and a magistrate may not hear the application unless the Commissioner has given the addressee reasonable notice of it. So the bar can run to 9 months.
• Section 17A(4) permits arrest. Where a person served with the notice fails to comply with it forthwith, "he may be arrested and taken before a magistrate by a police officer or by a person appointed in that behalf by the Commissioner".
• Section 17A(5) permits committal to prison. Once brought before a magistrate, unless the person then complies or satisfies the magistrate that he holds no travel document, the magistrate shall by warrant commit him to prison "until the expiry of the period of 28 days from the date of his committal to prison as aforesaid", or until he complies and a magistrate orders his discharge, whichever occurs first.

Section 17BA makes detailed provision for applications for permission to leave Hong Kong.

The offence of disclosing an investigation

[Statute] Section 30(1) makes it an offence for a person who knows or suspects that an investigation into a Part II offence is taking place, "without lawful authority or reasonable excuse", to disclose to the subject "the fact that he is so subject or any details of such investigation", or to disclose to the public, a section of the public or any particular person the subject's identity, the fact that they are under investigation, or any details of it. The penalty is "a fine at level 4 and to imprisonment for 1 year".

The offence is narrower than it first reads, because section 30(2) disapplies it once any of six events has occurred — but the subsection carries two qualifiers that must be read with it. First, the events must occur "where, in connection with such investigation". Second, the effect is confined: "Subsection (1) shall not apply as regards disclosure of any of the descriptions mentioned in that subsection" — the subsection lifts the offence only as regards the disclosures section 30(1) describes. The six events are: a warrant has issued for the subject's arrest; the subject has been arrested, with or without warrant; the subject has been required to furnish a statutory declaration or written statement by a notice under section 14(1)(a) or (b); a restraining order has been served under section 14C(3); the subject's residence has been searched under a section 17 warrant; or the subject has been required to surrender a travel document under section 17A.

Section 30(3) identifies two cases that are a reasonable excuse — but they are not the only reasonable excuses open to a reader. The subsection opens "Without affecting the generality of the expression reasonable excuse in subsection (1)", so it does not narrow the general defence of acting "without lawful authority or reasonable excuse" in section 30(1); it confirms two instances alongside it. Its words are that a person has a reasonable excuse as regards disclosure of any of the descriptions mentioned in that subsection "if, but only to the extent that, the disclosure reveals" — "any unlawful activity, abuse of power, serious neglect of duty, or other serious misconduct by the Commissioner, the Deputy Commissioner or any officer of the Commission"; or where it reveals "a serious threat to public order or to the security of Hong Kong or to the health or safety of the public".

Prosecution requires the Secretary for Justice's consent

[Statute] Section 31 of the Prevention of Bribery Ordinance is headed "Consent of Secretary for Justice required for prosecution of offences under Part II". Section 31(1) provides that no prosecution for a Part II offence shall be instituted except with that consent.

But "consent is required" does not mean nothing happens before it is given. Section 31(2) provides that notwithstanding subsection (1), a person may be charged with a Part II offence and arrested for it, or a warrant may issue and be executed, and the person may be remanded in custody or on bail even though consent has not been obtained — but "no such person shall be remanded in custody or on bail for longer than 3 days on such charge unless in the meantime the consent of the Secretary for Justice aforesaid has been obtained". Section 31(3) provides that a person brought before a magistrate before consent is given must have the charge explained but shall not be called upon to plead. Section 31 contains further provisions.

No power of arrest

The Securities and Futures Ordinance confers no power of arrest on the SFC. Be precise about the scope of that: it is Cap. 571 that confers no power of arrest — which is not to say that nobody is arrested in an SFC matter. Powers of arrest live elsewhere, for example section 50 of the Police Force Ordinance (Cap. 232); see your rights if arrested . The SFC's own compulsory tools are the section 183 requirement, the section 184 offences for non-compliance, and the route to court under section 185.

What an investigator may require

[Statute] What you may ask to see when an investigator arrives. Section 182(3) provides: "The Commission shall furnish an investigator with a copy of his direction or appointment (as the case may be), and the investigator, before first imposing any requirement on a person under section 183(1), (2) or (3), shall produce a copy of the direction or appointment (as the case may be) to that person for inspection." So before any section 183(1), (2) or (3) requirement is imposed on you, you are entitled to inspect the investigator's direction or appointment.

[Statute] Section 183(1) applies to "The person under investigation or a person whom the investigator has reasonable cause to believe has in his possession any record or document which contains, or which is likely to contain, information relevant to an investigation under section 182", and to a person whom the investigator has reasonable cause to believe otherwise has such information in his possession. Such a person shall —

• (a) "produce to the investigator, within the time and at the place the investigator reasonably requires in writing, any record or document specified by the investigator which is, or may be, relevant to the investigation and which is in his possession";
• (b) "if required by the investigator, give the investigator an explanation or further particulars in respect of any record or document produced under paragraph (a)";
• (c) "attend before the investigator at the time and place the investigator reasonably requires in writing, and answer any question relating to the matters under investigation that the investigator may raise with him"; and
• (d) "give the investigator all assistance in connection with the investigation which he is reasonably able to give, including responding to any written question raised by the investigator".

Section 183(2) permits the investigator to require the person in writing to "verify within a reasonable period specified in the requirement the explanation, particulars, answer or statement by statutory declaration". Section 183(3) deals with a person who does not answer on the ground that the matter is not known to him or not in his possession, allowing the investigator to require verification of that reason by statutory declaration.

[Statute] The report may be published. Section 183(5) provides: "The investigator may, and if so directed by the Commission shall, make interim reports on his investigation to the Commission, and on the conclusion of his investigation shall make a final report on his investigation to the Commission." Section 183(6) provides: "The Commission may, with the consent of the Secretary for Justice, cause a report under this section to be published." The outcome of an investigation does not necessarily stay inside the Commission.

[Statute] Customers of authorized financial institutions. Section 183(4) provides that "Neither section 182 nor this section shall be construed as requiring an authorized financial institution to disclose any information or produce any record or document relating to the affairs of a customer to the investigator" — unless "the customer is a person whom the investigator has reasonable cause to believe may be able to give information relevant to the investigation" and "the Commission is satisfied, and certifies in writing that it is satisfied, that the disclosure or production is necessary for the purposes of the investigation".

Consequences of non-compliance

[Statute] Section 184(1) provides that a person who, "without reasonable excuse", fails to produce a required record or document, to give a required explanation or further particulars, to attend before the investigator, to answer a question raised under section 183(1)(c), to comply with section 183(1)(d), or to comply with a requirement under section 183(2) or (3), commits an offence and is liable (i) "on conviction on indictment to a fine of $200,000 and to imprisonment for 1 year"; or (ii) "on summary conviction to a fine at level 5 and to imprisonment for 6 months".

Section 184(2) covers producing or giving records, documents, explanations, particulars, statements or answers that are "false or misleading in a material particular" knowingly or recklessly, with a penalty on indictment of "a fine of $1,000,000 and to imprisonment for 2 years" or on summary conviction "a fine at level 6 and to imprisonment for 6 months".

Section 184(3) covers doing so with intent to defraud, or an officer or employee of a corporation causing or allowing the corporation to do so with intent to defraud, with a penalty on indictment of "a fine of $1,000,000 and to imprisonment for 7 years" or on summary conviction "a fine at level 6 and to imprisonment for 6 months".

Section 184(5) provides that where a person is convicted by a court "on a prosecution instituted as a result of an investigation under section 182", the court may order him to pay the Commission the whole or a part of the costs and expenses of the investigation "and the Commission may recover the whole or the part (as the case may be) of the costs and expenses as a civil debt due to it". Two limbs to note: the order arises only on a prosecution instituted as a result of a section 182 investigation, and the Commission may pursue the sum as a civil debt.

[Statute] The route to court, and what it carries. Section 185 is headed "Application to Court of First Instance relating to non-compliance with requirements under section 179, 180, 181, 183 or 184B". Section 185(1) provides that where a person fails to do anything required of him by an investigator under section 183(1), (2) or (3), the Commission may apply to the Court of First Instance, which may inquire into the case and (a) if satisfied there is no reasonable excuse, order compliance within a specified period; and (b) "if the Court is satisfied that the failure was without reasonable excuse, punish the person, and any other person knowingly involved in the failure, in the same manner as if he and, where applicable, that other person had been guilty of contempt of court".

This is not the milder route. Contempt of court carries imprisonment, and the subsection reaches beyond the person required: it also reaches "any other person knowingly involved in the failure".

But it cannot be run alongside a section 184 prosecution. Section 185(3) opens "Notwithstanding anything in this section and any other provisions of this Ordinance" and then sets a bar that runs both ways for the same conduct. First, "no proceedings may be instituted against any person for the purposes of subsection (1)(b) or (1B)(b) in respect of any conduct" where "criminal proceedings have previously been instituted against the person under section 179, 180, 181, 184 or 184D in respect of the same conduct" and those criminal proceedings remain pending, or no criminal proceedings may again lawfully be instituted because of their previous institution. Second, the mirror: "no criminal proceedings may be instituted against any person under section 179, 180, 181, 184 or 184D in respect of any conduct" where proceedings have previously been instituted for the purposes of subsection (1)(b) or (1B)(b) in respect of the same conduct and those proceedings remain pending or may not lawfully be brought again. So for one course of conduct a section 184 prosecution and section 185(1)(b) punishment for contempt are alternatives, not a stack. Note the scope of the bar: it applies to the section 185(1)(b) punishment, and not to the section 185(1)(a) power to order compliance within a specified period. Section 185 contains further provisions in subsections (1A), (1B) and (2).

Self-incrimination is not a ground for refusing

As set out at the top of this article, section 184(4) provides: "A person is not excused from complying with a requirement imposed on the person by an investigator under section 183 only on the ground that to do so might tend to incriminate the person."

The protection is in section 187, and it concerns admissibility, not whether the person must answer. Sections 187(1) and (2) each reach three kinds of requirement-maker — an authorized person within the meaning of section 179, an investigator under section 183, and an MA investigator under section 184B; the position below is for the section 183 investigator.

[Statute] Section 187(1) requires the investigator to inform the person first — the investigator "shall ensure that the person has first been informed or reminded (as the case may be) of the limitations imposed by subsection (2) on the admissibility in evidence of the requirement and of the explanation or statement, the explanation or further particulars, or the question and answer (as the case may be)".

[Statute] Section 187(2) opens "Notwithstanding any other provisions of this Ordinance" — the inadmissibility prevails over the rest of the Ordinance. It provides that where the explanation, particulars or answer "might tend to incriminate the person and the person so claims before providing or making the explanation or statement, giving the explanation or further particulars, or giving the answer (as the case may be)", then the requirement and the explanation, particulars, or question and answer "shall not be admissible in evidence against the person in criminal proceedings in a court of law".

That inadmissibility has its own exceptions. The same subsection excepts proceedings in which the person is charged with an offence under sections 179(13), (14) or (15), 184 or 184D, or under sections 219(2)(a), 253(2)(a) or 254(6)(a) or (b), or under Part V of the Crimes Ordinance (Cap. 200), or for perjury, in respect of that explanation, particulars or answer — in those proceedings the material remains admissible.

Search

[Statute] The SFC side has a search warrant too. Section 191 is headed "Magistrate’s warrants" and is the search power under Part VIII.

Section 191(1) provides that where a magistrate is satisfied, on information on oath laid by "an employee of the Commission or, where the exercise of powers under section 180 is concerned, of the relevant authority within the meaning of that section", or by an authorized person within the meaning of section 179 or 180, or an investigator or MA investigator, that there are reasonable grounds to suspect that there is or is likely to be on the specified premises any record or document which may be required to be produced under Part VIII, the magistrate may issue a warrant authorizing a person specified in the warrant, a police officer, and such other persons as may be necessary to assist, to (i) "enter the premises so specified, if necessary by force, at any time within the period of 7 days beginning on the date of the warrant"; and (ii) "search for, seize and remove any record or document which the person specified in the warrant or police officer has reasonable cause to believe may be required to be produced under this Part". Two things to note: the window is 7 days, and entry may be forcible.

Section 191(2) adds powers exercisable at the premises: (a) to "require any person on the premises specified in the warrant whom he has reasonable cause to believe to be employed in connection with a business which is, or which has been, conducted on the premises to produce for examination any record or document which is in the possession of the person and which he has reasonable cause to believe may be required to be produced under this Part"; (b) to "prohibit any person found on the premises specified in the warrant from" removing any record or document required to be produced under paragraph (a), or erasing, adding to, altering or otherwise interfering with it; and (c) to take any other step which may appear necessary to preserve it and prevent interference with it.

Section 191(3) provides that "Any record or document removed under this section may be retained for any period not exceeding 6 months beginning on the day of its removal", or for such longer period as may be necessary where the record or document is or may be required for criminal proceedings or proceedings under the Ordinance. Section 191(4) provides that where a person removes a record or document, "he shall as soon as reasonably practicable thereafter give a receipt for it", and he may permit a person who would otherwise be entitled to inspect it to do so, and to copy it, at all reasonable times.

[Statute] Obstructing a section 191 search is an offence. Section 191(6) provides that a person commits an offence if he (a) "without reasonable excuse, fails to comply with a requirement or prohibition under subsection (2)"; or (b) "obstructs a person exercising a power conferred by subsection (2)". Section 191(7) sets the penalty: (a) "on conviction on indictment to a fine of $1,000,000 and to imprisonment for 2 years"; or (b) on summary conviction, a fine at level 6 and imprisonment for 6 months.

Section 191(5) separately applies section 102 of the Criminal Procedure Ordinance.