Kevin P. Zervos, SC, JP Director of Public Prosecutions Hong Kong, China

1. The 5th IAACA Seminar 22 – 24 June 2013Jinan, Shandong Province, China Chapter VI of UNCAC: Technical Assistance and Information Exchange Kevin P. Zervos, SC, JP Director of Public Prosecutions Hong Kong, China

2. Key features For prosecution of corruption, there needs to be: • Effective detection and investigation. • Specialist independent body with a comprehensive regime of offences and investigatory powers with international reach. • Full and proper gathering of evidence and appropriate mechanisms in place for effective mutual legal assistance. • Provisions that freeze and disgorge the proceeds and profits of corruption. • Disqualification or prohibition of persons or entities involved in corruption from operating corporately or in the case of public sector corruption receiving government work.

3. Essential needs • Offence provisions – extraterritorial reach – S. 4, Prevention of Bribery Ordinance (Cap. 201) (POBO) “or elsewhere”; – Criminal Jurisdiction Ordinance (Cap. 461) • Investigatory powers – compulsory powers for the provision of information and the production of documents and materials – Ss. 13 and 14 of POBO; – P v Commissioner of ICAC (2007) 10 HKCFAR 293; HKSAR v NG Po-on (2008) 11 HKCFARA 91 – Securities and Futures Ordinance (Cap. 571)

4. Essential needs • Restraint and confiscation of proceeds of the crime – Ss. 8 and 15 Organized and Serious Crimes Ordinance (Cap. 455) (OSCO) • Mutual legal assistance provisions and international cooperation – Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525)

5. Corruption case • Private sector corruption • S.9 POBO by an agent in relation to his principal’s affairs or business • Public sector corruption • S. 4 POBO by a public servant in his capacity as a public servant • Misconduct in public office by a public official in the course of or in relation to his public office HKSAR v Shum Kwok-sher[2001] 3 HKLRD 399; HKSAR v Sin Kam-wah(2005) HKCFAR 192

6. First Steps 1. Identify the full nature of the criminality and the role and involvement of the participants 2. Identify the relevant events, transactions and dealings 3. Identity and locate all relevant material and information 4. Prepare • dramatis personae • a chronology • a flow of the transactions or dealings • a flow of funds or movement of property

7. Covert techniques • Covert surveillance • listening device • interception of telephone conversations/ messages • monitoring of emails and internet use • physical surveillance Interception of Communications and Surveillance Ordinance (Cap. 589) 2. Undercover operative

8. Overt techniques • Restraint of property • Search warrants • S. 50(7) Police Force Ordinance (Cap. 232) • S. 17 POBO and S. 10B and S. 10C(1) Independent Commission Against Corruption Ordinance (Cap. 204) • Compulsory powerto provide information or produce documents • Overseas evidence – time and procedure • Caution interview – Admission of fact – Admission against interest

9. Presenting the case • Charge – elements of the offence: Hin Lin-yee and Anor v HKSAR [2010] 3 HKC 403 • Disclosure of used materials • Preliminary issues (voir dire) • Opening • Presentation of evidence • oral testimony (accomplice witnesses) • exhibits • expert opinion • Case to answer • Defence case • Closing • Sentence and other orders

10. Working together • Mutual legal assistance and cooperation – central body dealing with requests in and out. • Joint training programmes via videolink or provision of recording – exchange manuals and materials. • Exchange programmes – Outreach programme. Mutual exchange and placement of officers. • Communication – conference, talks and email

11. Conclusion Technical assistance and information exchange is all about working together to deal with corruption at domestic, regional and international levels.