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Release of Private Examination Transcript to CCB held not to Infringe Human Right

2008-01-01

Information obtained from private examination under section 221 of the Companies Ordinance (Cap. 32) is not restricted merely for the use by the liquidators.  The court has recently ordered the transcript of a private examination to be made available to the Secretary of Justice, knowing that it would be passed on to the Commercial Crimes Bureau (“the CCB”) to assist its investigations.

Re Kong Wah Holdings Ltd & Another (HCCW 49 and 50/2000)

This case concerns the largest corporate insolvency in Hong Kong history.The chairman and chief executive of the company James Ting (“the Respondent”) was examined by the liquidators for 8 days pursuant to a court order made under section 221 of the Companies Ordinance (Cap. 32).The Secretary for Justice (“SOJ”) later applied to the court for the release of the court transcript containing his depositions.Master de Souza granted the application in the exercise of his discretion under rule 62(2) of the Companies (Winding-up) Rules. He so ordered in the full knowledge it would be passed on to the CCB solely to assist its investigations and not be released to any other party.The Respondent lodged an appeal against the decision.

Respondent’s opposition

The Respondent opposed to the application by arguing that it was only on a fishing expedition.S Kwan J rejected this argument, as there is no reason why the SOJ should be required to disclose in the application the avenues that the CCB would wish to pursue.Any inference the Respondent attempting to draw from the fact that the liquidators had not supported affirmatively the DOJ’s application was also rejected, as the liquidators were not charged with the sole responsibility or primary duty in bringing to book culprits in a liquidation.

Abrogation to the Privilege against Self-incrimination?

The Respondent also opposed by arguing that the application would abrogate his rights of privilege against self-incrimination under Article 11(2)(g) of the Bill of Rights Ordinance (Cap. 383). S Kwan J found Article 11(2)(g) not relevant in the present context as the immunity in that article is a testimonial immunity, which does not prohibit derivative use of materials compulsorily obtained.

Balancing Public Interests with Individual Rights

Balancing the demand of furthering the public interest in criminal investigation with that of safeguarding the rights of the individual, S Kwan J held the view that the Respondent would suffer no prejudice as the depositions would not be used against him in any proceedings.The appeal was therefore dismissed.S Kwan J additionally ordered the transcript not be disclosed in any other proceedings; and the use of transcript be restricted to assisting the CCB in its investigation in matters connected with or arising out of the collapse of the Companies.


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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2008

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