Press Summary (English)

Press Summary (Chinese)

FACC No. 8 of 2024

[2025] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2024 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 34 OF 2023)

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J U D G M E N T

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Chief Justice Cheung:

1. I have had the advantage of reading in draft the judgment of Mr Justice Ribeiro and that of Mr Justice Fok, which reach opposite conclusions. I respectfully agree with Mr Justice Ribeiro’s judgment.

2. I do not consider the language of section 30(1) of the Prevention of Bribery Ordinance ( Cap 201 ) to preclude the adoption of a broader construction (i.e., the second construction referred to in Mr Justice Ribeiro’s judgment). The provision reads:

“Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II 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, a section of the public or any particular person the identity of the subject person or the fact that the subject person is so subject or any details of such investigation,

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 1 year.”

3. The crux of the present debate lies in the meaning of the phrase “the fact that he/the subject person is so subject”, which appears in both section 30(1)(a) and (b). (“Subject person” simply refers to “the person who is the subject of the investigation”, that is, the investigation in respect of a Part II (corruption) offence. It is neutral regarding the content of the offending disclosure.)

4. Relevantly, section 30(1) covers two distinct and separable facts: (1) a person is the subject of an investigation; and (2) the investigation concerns a Part II offence. Linguistically, disclosure of “the fact that he/the subject person is so subject” is capable of meaning that the disclosure need only reveal fact (1), without disclosing fact (2). In other words, it may involve disclosing that a particular person is the subject of an investigation – without specifying that the investigation pertains to a Part II offence, even though that is the case.

5. I do not consider this interpretation to be so strained that, when understood in light of the provision’s context and statutory purpose, it is one that the language cannot bear. In fact, the equivalent phrase appears in the Chinese text of section 30(1)(b) as “該受調查人正受調查的事實”. [1] When translated into English, it means “the fact that the subject person is under investigation”. If nothing else, this demonstrates that the broader construction is a permissible reading of the language u