The 5The 5thth IAACA Seminar IAACA Seminar

22 – 24 June 201322 – 24 June 2013Jinan, Shandong Province, China Jinan, Shandong Province, China

Chapter VI of UNCAC: Technical Chapter VI of UNCAC: Technical Assistance and Information ExchangeAssistance and Information Exchange

The 5The 5thth IAACA Seminar IAACA Seminar

22 – 24 June 201322 – 24 June 2013Jinan, Shandong Province, China Jinan, Shandong Province, China

Chapter VI of UNCAC: Technical Chapter VI of UNCAC: Technical Assistance and Information ExchangeAssistance and Information Exchange

Kevin P. Zervos, SC, JPKevin P. Zervos, SC, JPDirector of Public ProsecutionsDirector of Public Prosecutions

Hong Kong, ChinaHong Kong, China

Key featuresKey featuresFor prosecution of corruption, there needs to be:

(1) Effective detection and investigation.

(2) Specialist independent body with a comprehensive regime of offences and investigatory powers with international reach.

(3) Full and proper gathering of evidence and appropriate mechanisms in place for effective mutual legal assistance.

(4) Provisions that freeze and disgorge the proceeds and profits of corruption.

(5) Disqualification or prohibition of persons or entities involved in corruption from operating corporately or in the case of public sector corruption receiving government work.

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Essential needsEssential needs

1. Offence provisions – extraterritorial reach– S. 4, Prevention of Bribery Ordinance (Cap. 201)

(POBO) “or elsewhere”;

– Criminal Jurisdiction Ordinance (Cap. 461)

2. Investigatory powers – compulsory powers for the provision of information and the production of documents and materials

– Ss. 13 and 14 of POBO;

– P v Commissioner of ICAC (2007) 10 HKCFAR 293; HKSAR v NG Po-on (2008) 11 HKCFARA 91

– Securities and Futures Ordinance (Cap. 571)

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Essential needsEssential needs

3. Restraint and confiscation of proceeds of the crime– Ss. 8 and 15 Organized and Serious Crimes Ordinance

(Cap. 455) (OSCO)

4. Mutual legal assistance provisions and international cooperation

– Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525)

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Corruption caseCorruption case1. Private sector corruption– S.9 POBO

by an agent in relation to his principal’s affairs or business

2. Public sector corruption – S. 4 POBO

by a public servant in his capacity as a public servant– Misconduct in public office

by a public official in the course of or in relation to his public office

HKSAR v Shum Kwok-sher [2001] 3 HKLRD 399; HKSAR v Sin Kam-wah (2005) HKCFAR 192

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First StepsFirst Steps1. Identify the full nature of the criminality and

the role and involvement of the participants2. Identify the relevant events, transactions and

dealings3. Identity and locate all relevant material and

information4. Prepare – dramatis personae– a chronology– a flow of the transactions or dealings– a flow of funds or movement of property

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Covert techniquesCovert techniques

1. Covert surveillance – listening device – interception of telephone conversations/

messages – monitoring of emails and internet use – physical surveillance

Interception of Communications and Surveillance Ordinance (Cap. 589)

2. Undercover operative7

Overt techniquesOvert techniques1. Restraint of property2. Search warrants– S. 50(7) Police Force Ordinance (Cap. 232)– S. 17 POBO and S. 10B and S. 10C(1) Independent

Commission Against Corruption Ordinance (Cap. 204)3. Compulsory power to provide information or produce

documents4. Overseas evidence – time and procedure5. Caution interview

– Admission of fact – Admission against interest

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Presenting the casePresenting the case– Charge – elements of the offence: Hin Lin-yee and Anor v HKSAR [2010] 3

HKC 403– Disclosure of used materials– Preliminary issues (voir dire)– Opening– Presentation of evidence

oral testimony (accomplice witnesses) exhibits expert opinion– Case to answer

– Defence case– Closing– Sentence and other orders

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Working togetherWorking together

– Mutual legal assistance and cooperation – central body dealing with requests in and out.

– Joint training programmes via videolink or provision of recording – exchange manuals and materials.

– Exchange programmes – Outreach programme. Mutual exchange and placement of officers.

– Communication – conference, talks and email

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ConclusionConclusion

Technical assistance and information exchange is all about working together to deal with corruption at domestic, regional and international levels.

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