Under what circumstances can the ICAC officers enter a private premises and search for items inside? Must the ICAC officers obtain a warrant beforehand?
Entry and search with a court warrant
The ICAC officers can enter and search any premises with a search warrant.
According to the Prevention of Bribery Ordinance, an ICAC officer may apply to a Magistrate or a Judge of the High Court for a warrant to search any private premises. In order to obtain the search warrant, the officer must satisfy the court that there are reasonable grounds to believe that there is evidence of an offence under the Prevention of Bribery Ordinance inside such premises. In urgent cases, the search warrant can be granted by the Commissioner of the ICAC instead of the court. Where the Commissioner reasonably believes the making of an application for the issue of such a warrant would seriously hinder the investigation, he may issue his own search warrant to direct his ICAC officers to enter and search the premises or place.
A search warrant may be granted by a Magistrate for the purpose of entering and searching premises or places for evidence of specified offences under section 10 of the ICAC Ordinance (e.g. offences under the Prevention of Bribery Ordinance or the Elections (Corrupt and Illegal Conduct) Ordinance; or offences of theft, fraud, false accounting etc ).
Entry and Search without any court warrant
However, it is not always necessary for the ICAC officers to obtain a search warrant. Under the ICAC Ordinance, the ICAC officers may enter and search private premises without warrant for the purpose of arresting a person if they reasonably believe that person is inside the premises. The officers must first identify themselves and state the purpose of the search. The officers must also produce their warrant cards upon request.
Otherwise the ICAC officers have no general power to enter into private premises without the consent of the owner or occupant.
Under what circumstances can the ICAC officers arrest a person? Must they obtain a warrant of arrest beforehand?
A warrant of arrest is not required. The ICAC officers may arrest a person they reasonably suspect of being guilty of an offence under the Independent Commission Against Corruption Ordinance, the Prevention of Bribery Ordinance, or the Elections (Corrupt and Illegal Conduct) Ordinance. What constitutes reasonable suspicion in a particular case is to be judged on an objective basis with valid reasons.
Examples of these offences include: a civil servant accepted advantages without the Chief Executive's permission when performing an official duty, or staff of a private company released tendering information to bidders in return for some advantages and such information has assisted those bidders in securing a contract.
The ICAC officers have a duty to explain to the person under arrest the reason for the arrest, and to inform the arrested person that he has a right to remain silent. Hence, the arrested person can choose not to answer any questions asked by the ICAC officers.
It should be noted that a person is not under arrest if that person is merely asked by the ICAC officers to assist in their investigation or to go to the ICAC Office. Unless the person is formally arrested, he is free to decide whether or not to go with the ICAC officers, and is free to leave at any stage.
What will normally happen after a person is arrested by the ICAC officers? What are his rights during detention and questioning by the ICAC officers?
A person arrested by the ICAC may be taken to a police station and dealt with under the Police Force Ordinance, or may be taken to an ICAC office. If an arrested person is taken to an ICAC office, he may be detained there if an officer of the rank of a Senior Commission Against Corruption Officer or higher considers it necessary for the purpose of further inquiries.
The rights of a person in ICAC custody can be found in the Independent Commission Against Corruption (Treatment of Detained Persons) Order. According to the Order, a "Notice to Persons Detained" setting out the general rights of a detained person must be conspicuously displayed in every detention room. These rights include:
- Requesting that the detained person's relatives or a friend be informed of the detention;
- Communicating and consulting with a legal adviser (unless unreasonable delay or hindrance will likely be caused to the processes of investigation or the administration of justice);
- Asking to be released on bail;
- Being provided with drinking water upon request, adequate food and refreshment as well as medical care if necessary.
Detailed contents of the Notice to Persons Detained can be found here.
An arrested person may be released from custody on the deposit of a reasonable sum of money. The amount of such a sum is determined by a Senior Commission Against Corruption Officer or an officer of higher rank. A person may also be released on bail by providing such recognizance, with such sureties, as the senior officer deems necessary. Persons released on bail must further attend the offices of the ICAC as specified or appear before a Magistrate as required. Failure to attend will result in the forfeiture of the deposited sum or recognizance.
If bail is refused, the detained person must be brought before a Magistrate as soon as practicable and in any event within 48 hours after arrest.
Questioning and Interviewing by ICAC officers
The questioning of the detained person is usually done by the ICAC officers by way of a video-taped interview. Before questioning and interviewing the detained person, the ICAC officers must caution that person by saying, "You are not obliged to say anything unless you wish to do so but whatever you say will be put into writing and may be given in evidence." The detained person has a right to remain silent, and may therefore choose whether or not to attend the video-taped interview or answer any questions posed by the ICAC officers . The detained person may also request to obtain legal advice before deciding whether or not to answer any questions. The detained person may also have his lawyer present during the questioning and taking of any statement. Upon conclusion of the interview , the ICAC officers must provide the interviewee with a copy of the taped interview or the written statement (as the case may be).