Transcript 123 - IAACA

The 5th IAACA Seminar
22 – 24 June 2013
Jinan, Shandong Province, China
Chapter VI of UNCAC: Technical Assistance
and Information Exchange
Kevin P. Zervos, SC, JP
Director of Public Prosecutions
Hong Kong, China
Key features
For 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 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 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 case
1.
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 Steps
1. Identify the full nature of the criminality and
the role and involvement of the participants
2. Identify the relevant events, transactions and
dealings
3. Identity and locate all relevant material and
information
4. 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 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 operative
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Overt techniques
1.
2.
Restraint of property
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 documents
4. Overseas evidence – time and procedure
5. Caution interview
– Admission of fact
– Admission against interest
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Presenting the case
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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 together
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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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Conclusion
Technical assistance and information exchange is
all about working together to deal with corruption
at domestic, regional and international levels.
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