Activities of the Hong Kong Independent Commission Against Corruption (ICAC) : Its Investigative technique
Mr Tony KWOK Man-wai, SBS, IDS,
Visiting Professor of the PRC National Prosecutors College and
Former Head of Operations, ICAC. Hong Kong,
on the LAWASIA Tokyo Conference, 2003,
UNAFEI, Tokyo, Japan
Activities of the Hong Kong Independent Commission Against Corruption (ICAC) : Its Investigative technique
I am honoured to be invited by Mr Kunihiko Sakai, the Director of UNAFEI to come and share with you my 27 years of experience in fighting Corruption in Hong Kong. I retired last year after having worked in the ICAC for 27 years. I joined the ICAC as an Investigator shortly after its inception in 1975 and was subsequently promoted through a number of ranks to be the first local Head of Operations in 1996, and had successfully led the Operations Department of the ICAC through the historical milestone of the Reunification of Hong Kong with the Mainland China. Having been a pioneer corruption fighter for 27 years, I have developed a strong passion for anti-corruption mission and since my retirement, I have been offering my voluntary service at the local and international arena to help fighting this common enemy of corruption. Hence I am most grateful for the opportunity to participate in this prestigious conference and share with you my experience.
The Hong Kong ICAC is popularly regarded as a successful model in fighting corruption, turning an old, very corrupt colony into one of the relatively corruption free places in the world. One of the success factors is its three-pronged strategy - fighting corruption through deterrence, prevention and education. All three are important but in my view, deterrence is the most important. That is the reason why in the ICAC's total establishment of over 1,300 staff members, over 900 of them work in the Operations Department, responsible for investigating corruption. Nearly all of the major corruption cases I have dealt with were committed by people with high authority and good wealth. For them, they have certainly been educated about the evil of corruption and they may also be subject to certain degree of anti-corruption control. But what inspired them to commit corruption? The answer is simply greed, and they would weigh the fortune they could get from corruption with the chance of them being discovered. So how can we deter them from being corrupt? The only way is to make them realize that there is a high risk of them being caught, which is the Mission of the ICAC Operations Department - to make corruption a high risk crime. To do that, you need a professional investigative force.
Difficulties of investigating corruption
Corruption is regarded as one of the most difficult crime to investigate. There is often no scene of crime, no fingerprint, no eye-witness to follow up. It is by nature a very secret crime and can involve just two satisfied parties, so there is no incentive to divulge the truth. Even if there are witnesses, they are often parties to the corruption themselves, hence tainted with doubtful credibility. The offenders can be equally as professional as the investigators and know how to cover up all trails of evidence. The offenders can also be very powerful and ruthless in enforcing a code of silence amongst related persons through intimidation and violence to abort any investigation. In this modern age, the sophisticated corrupt offenders will make full advantage of the loopholes in cross jurisdictions and acquire the assistance of other professionals, such as lawyers, accountants and computer experts in their clandestine operations and to help them launder their corrupt proceeds.
Corruption and Organized Crime
Corruption rarely exists alone. It is often a tool to facilitate organized crimes. Over the years, ICAC have investigated a wide range of organized crimes facilitated by corruption. Law enforcement officers have been arrested and convicted for corruptly assisting drug traffickers and smugglers of various kinds; bank managers for covering up money laundering; hotel and retail staff for perpetuating credit card fraud. In these cases, we need to investigate not only corruption, but some very sophisticated organized crime syndicates.
Prerequisites for an effective investigation
There are several prerequisites to an effective corruption investigation :
- Independent - corruption investigation can be politically sensitive and embarrassing to the Government. The investigation can only be effective if it is truly independent and free from undue interference. This depends very much on whether there is a top political will to fight corruption in the country.
- Adequate investigative power - Because corruption is so difficult to investigate, you need adequate investigative power. The HK ICAC enjoys wide investigative power, such as power to check bank accounts, requiring suspects to declare their assets, requiring witnesses to answer questions on oath, restraining properties suspected to be derived from corruption, holding the suspects' travel documents to prevent them from fleeing the jurisdiction. Not only are we empowered to investigate corruption offences, both in the Government and private sectors, we can investigate all crimes which are connected with corruption. I must hasten to add that there is an elaborate check and balance system to prevent abuse of such wide power.
- Adequate resources - investigating corruption can be very time-consuming and resource intensive, particularly dealing with cross jurisdictional corruption cases. The HK ICAC's annual budget amounted to US$90M, about US$15 per capita. You may wish to multiply this figure with your own country's population and work out the anti-corruption budget that needs to be given to the equivalent of ours! However, looking at our budget from another angle - it represents only 0.3% of our entire Government budget or 0.05% of our Gross Domestic Product (GDP). I think you will agree that such a small "premium" is a most worthwhile investment for a clean society.
- Confidentiality - it is crucial that all corruption investigation should be conducted covertly and confidentially, before overt action is ready, so as to reduce the opportunities for compromise or interference. On the other hand, many targets under investigation may prove to be innocent and it is only fair to preserve their reputation before there is clear evidence of their corrupt deeds. Hence in Hong Kong, we have a law prohibiting any one from disclosing any details of ICAC investigation until overt action such as arrests and searches have been taken. The media once described this as a "press gag law" but they now come to accept it as a right balance between press freedom and effective law enforcement.
- International mutual assistance - many corruption cases are now cross jurisdictional and it is important that you can obtain international assistance in the areas such as locating witnesses and suspects; money trails, surveillance, exchange of intelligence, arrest, search and extradition.
- Professional - all the investigators must be properly trained and professional in their investigation. The HK ICAC strives to be one of the most professional law enforcement agencies in the world. We are one of the first agencies in the world to introduce the interview of all suspects under video, because we recognize that professional interview technique and protecting the integrity of the interview evidence are crucial in any corruption investigation.
Methods to Investigate Corruption
Investigating corruption can broadly be divided into two categories:
a. Investigating past corruption offences
b. Investigating current corruption offences
Investigating Past Offences
The investigation normally commences with a report of corruption and the normal criminal investigation technique should apply. Much will depend on the information provided by the informant and from there, the case should be developed to obtain direct, corroborative and circumstantial evidence. The success of such investigation relies on the meticulous approach taken by the investigators to ensure that "no stone is left unturned". Areas of investigation could include detailed checking of the related bank accounts and company ledgers, obtaining information from various sources to corroborate any meetings or corrupt transaction etc. When there is a reasonable suspicion to act upon, the suspects' home and office should be searched for further evidence and all related parties should be properly interviewed.
Investigating Current Corruption Offences
Such investigation will enable greater scope for ingenuity. Apart from the conventional methods mentioned above, a proactive strategy should always be preferred, with a view to catch the corrupt red-handed. Surveillance and telephone intercept should be mounted on the suspects and suspicious meetings monitored. A co-operative party can be deployed to set up meeting with a view to trap the suspects. Undercover operation can also be considered to infiltrate into a corruption syndicate. The pre-requisite to all these proactive investigation methods are professional training, adequate operational support and a comprehensive supervisory system to ensure that they are effective and in compliance with the rule of evidence.
One unique feature of corruption investigation is that the investigators must not be contended with obtaining evidence against one single offender. Corruption is always linked and can be syndicated. Every effort should be explored to ascertain if the individual offender is prepared to implicate other accomplices or the mastermind behind. In Hong Kong, there is judicial directive to allow a reduction of 2/3 of the sentence of those corrupt offenders who are prepared to provide full information to ICAC and to give evidence against the accomplices in court. The ICAC provides special facilities to enable such “resident informants” to be detained in ICAC premises for the purpose of de-briefing and protection. This “resident informant” system has proved to be very effective in dealing with syndicated or high-level corruption. Investigative Support
Apart from the core investigation units, there should be strong operational support units, and the following are essential for the reasons given :
- Intelligence Section as a central point to collect, collate, analyze and disseminate all intelligence and investigation data, otherwise there may be major breakdown in communication and operations
- Surveillance Section a very important source of evidence and intelligence. In the Hong Kong ICAC, we have a dedicated surveillance unit of over 120 surveillance agents and they have made significant contribution to the success of a number of major cases
- Technical Services Section provide essential technical support to surveillance and operations
- Information Technology Section it is important that all investigation data should be managed by computer at the start, or extra resources would be required for future computerization, which is a matter of time. In this modern age, most personal and company data are stored in computers and ICAC must possess the ability to break into these computers seized during searches to examine their stored data. Computer forensic is regarded as vital for all law enforcement agencies worldwide these days
Financial Investigation Section
The corruption investigations these days often involve sophisticated money trail of proceeds of corruption, which go through a web of off-shore companies and accounts, funds etc. It is necessary to employ professionally qualified investigative accountants to assist in such investigation and in presenting such evidence in court.
Witness Protection Section
ICAC has experienced cases where crucial witnesses were compromised, with one even murdered, before giving evidence. There should be a comprehensive system to protect crucial witnesses, including 24 hours arms protection, safe housing, new identity and overseas relocation. Some of these measures require legislative backing.
Conclusion and Observation
It is obvious that corruption and organized crimes are getting more and more difficult to investigate. The offenders have taken full advantage of the high technology and cross jurisdiction loopholes. The conventional investigation method and the current legal system may not be adequate to win the battle against the corrupt. We should adopt a more proactive approach in investigation such as the wider use of undercover operations and the use of telephone intercept.
Since this is a law conference, I would like to give my personal observation on some of the areas that can be reviewed in the criminal justice system.
Right of Silence
Corruption is a secret crime and there is a need to break the secrecy if we want to find out the truth. The present system in Hong Kong which basically follows the old UK one, allows the suspect to exercise their right of silence when questioned under caution. If they have a lawyer, the first thing the lawyer will advise them is to maintain his right of silence. When the case comes to court, the offender will have ample time to concoct a story, which do not allow the prosecution sufficient time to verify its truthfulness. In the end, it defeats the objective of the criminal justice system in enabling full facts to be presented to the court so as to arrive at a fair verdict. Under the new UK caution system, the suspects are now warned that any delayed response to questions may prejudice their defence in subsequent legal proceedings. The new caution read like this, "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." I believe this new caution strikes a better balance between the human rights of suspects and the public interest to investigate crime. Alternatively, we should also consider to adopt the Continental system where the suspect can be interviewed by examining magistrate where he cannot exercise any right of silence.
It is no longer a secret to the criminal world that most law enforcement agencies have access to telephone intercept in their investigation. There appears to be two broad ways in dealing with telephone intercept in different countries. In the United States, Canada and Australia, telephone intercept requires judicial approval authority and its products can be used as evidence in court. In the UK and some other countries, telephone intercept is approved by the Government and cannot be used as evidence in any courts. Experience over the world proved that telephone intercept is an extremely useful tool in investigating high level organized crime and corruption and its production in court often form the crucial evidence against the mastermind offenders. To deprive the use of telephone intercept evidence in court is in my view simply to hamper the effective investigation and prosecution of major corrupt offenders.
Consideration should also be given to introducing new legislation to protect whistle blower, witness protection, and allowing greater degree in entrapment to facilitate successful undercover operations, and the international mutual assistance in corruption investigation and money laundering.