Introduction

The Court of Final Appeal (the “CFA”) handed down its decision in HKSAR v Lam Cheuk Ting [2025] HKCFA 7 (the “Case”) on 1 April 2025. Allowing the Department of Justice’s appeal by a majority, the CFA lays down its interpretation on section 30(1) of the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong) (“POBO”) concerning the disclosure of information related to an investigation by the Independent Commission Against Corruption (the “ICAC”).

Brief facts

The Respondent in the Case was charged with three counts of disclosing the identity of a person under investigation by ICAC stemming from the events which occurred on 21 July 2019 in Yuen Long MTR station. The Respondent, as a witness to the said events, was invited to assist the ICAC in an investigation against a police superintendent (the “Superintendent”) for both an offence under Part II of POBO (a “Part II Offence”) and an offence that is not under Part II of POBO (a “Non-Part II Offence”). In spite of the reminders by ICAC of the prohibition against disclosure under the POBO, the Respondent gave three press conferences and disclosed on each occasion that the Superintendent was under investigation for the offence of “misconduct in public office” (a common law offence), which is a Non-Part II Offence. The Respondent was convicted by the Magistrate, but his conviction was quashed on appeal by the Court of First Instance (High Court).

Section 30 of POBO

Section 30(1) POBO provides that it is an offence for any person who knowing or suspecting that an investigation in respect of a Part II Offence is taking place, without lawful authority or reasonable excuse, discloses to (a) the person who is the subject of the investigation (the “Subject Person”) the fact that he is so subject or any details of such investigation or (b) the public the identity of the Subject Person or the fact that the Subject Person is so subject or any details of such investigation.

It is to be noted that the said prohibition is not an absolute one: under section 30(1), if there is lawful authority and reasonable excuse, then the disclosure is not an offence. Also under section 30(2) of the POBO, section 30(1) of the POBO shall not apply as regards disclosure in the following cases in connection with the ICAC investigation:

1.      a warrant has been issued for the arrest of the Subject Person;

2.      the Subject Person has been arrested whether with or without a warrant;

3.      the Subject Person has been required to furnish a statutory declaration or a statement in writing by a notice served on him by the ICAC under section 14(1)(a) or (b) of the POBO;

4.      a restraining order has been served on any person under section 14C(3) of the POBO;

5.      the residence of the Subject Person has been searched under a warrant; or

6.      the Subject Person has been required to surrender to the ICAC any travel document in his possession.

The Issue before the CFA

The Department of Justice was granted leave to appeal to the CFA on the proper construction of section 30(1)(b) of the POBO, and more particularly, whether an offence is committed when a defendant discloses the identity of the Subject Person by claiming that he is the subject of an ICAC investigation in respect of an alleged or suspected Non Part II Offence only whilst, in fact and to the knowledge of the defendant, the Subject Person is the subject of an ICAC investigation in respect of both non Part II Offence(s) and Part II Offence(s).

The CFA’s ruling

The two constructions

The CFA has identified two possible constructions of section 30(1), a narrower one and a broader one. The first construction, which adopts a literal approach, requires disclosure of the fact that the investigation concerns a Part II Offence. The second construction, which adopts a contextual and purposive approach, requires nothing more than the disclosure of the existence of an investigation that is underway.

The broader construction preferred by majority

While the minority of the CFA took the view that the first construction was on the language, the only possible construction, the majority of the CFA (a three to two majority) opines that the second construction is the one that adequately and appropriately reflects the legislative purpose to preserve the efficacy or integrity of ICAC investigations in corruption offences and to protect the reputation of subject persons. The phrase “the fact that he/the subject person is so subject” in section 30(1) have two limbs: the first being a person is the subject of an investigation, and the second being the investigation concerns a Part II Offence. A disclosure that reveals either one of the above limbs constitutes a prohibited disclosure. This view is reinforced by the Chinese text of section 30(1)(b) as “該受調查人正受調查的事實”, which literally means “the fact that the subject person is under investigation”. The second construction is also preferred to serve the statutory purpose of ensuring the secrecy of corruption investigations, and more specifically, preserving the integrity of ICAC investigations by prohibiting disclosures that are likely to prejudice the investigation results, as adequately reflected by the objective actus reus (i.e. the act) elements of mere disclosure of investigation by the ICAC. Such prejudice may arise, depending on the circumstances, from revealing the identity of the individual involved, the existence of the investigation, or specific details about the investigation. It was thus held by the majority of the CFA that any one of these disclosures will trigger liability, and it is not necessary for the defendant to indicate that the offence(s) being investigated is/are Part II Offence(s). As such, the CFA allowed the appeal by the Department of Justice and restored the conviction and sentence against the Respondent.

Takeaways

It transpires from the CFA’s ruling that when interpreting a legislative provision, the Court tends to adopt a contextual approach to focus on upholding the legislative intent, and a literal and narrow approach is often not preferred. Whilst it is not entirely contentious as to a Hong Kong Court’s purposive approach to interpret laws, this Case demonstrates that the Court may keep a strict hand when reading into laws that govern enforcement and public conduct in relation to ICAC matters. If there is a need to disclose an ICAC investigation, for example, a listed company needs to publish an announcement on an investigation concerning the chairman of the listed company, it is important to seek legal advice before making the disclosure to ensure that section 30 of the POBO is not breached.