Update

The Court of First Instance of Hong Kong has recently held that the right to record oral answers at interviews was implied under the Securities and Futures Ordinance ("SFO") and that it is reasonably necessary for an investigator to insist on an audio recording at interviews.

The decision in A v Securities and Futures Commission & Another is significant as before this ruling, the practice had always been that investigators could not insist an interview be audio or video recorded.

Background

The SFC appointed investigators to look into possible insider dealing by the Applicant in certain listed shares. The Applicant agreed to attend interviews with the SFC investigator and answer questions. He requested the interview be conducted in Putonghua (his native language), or an independent interpreter be present.

The Applicant alleged that the SFC investigator was not a fluent Putonghua speaker and was concerned that the interviewer would not be able to accurately understand and transcribe his answers. The Applicant requested that the questions posed to him and his answers, be recorded in writing.

The SFC investigator proposed that the interview be video recorded or, at the very least, be audio recorded. The Applicant objected to both. The SFC investigator nevertheless insisted on recording the oral answers which led to the Applicant applying for judicial review.

The power to audio record an interview is implied

The Applicant contended that the SFC had no power to insist on the audio recording of interviews because the statute did not expressly allow for this. He accepted however, that an investigator had the power to record an interview, but that it should be restricted to written means, including a simultaneous verbatim transcript by a stenographer.

Reyes J took the view that the SFO impliedly authorises an investigator to record oral answers given at an interview and considered that an audio recording was “the minimum reasonably necessary to ensure a degree of integrity to the interviewing process”. In the circumstances the court held that such power was reasonably incidental and necessary to the SFC's powers to compel a person under investigation to answer questions under the ordinance.

Audio recording an interview does not breach right of privacy

The Applicant also argued that the audio recording was intrusive and in breach of the right of privacy guaranteed by Art. 30 of the Basic Law; Art. 14 of the Hong Kong Bill of Rights and Art. 17 of the International Covenant on Civil and Political Rights.

Reyes J considered a New Zealand High Court case Jaffe v. Bradshaw, which concerned similar circumstances and in which the court examined whether the Serious Fraud Office Act 1990 permitted the videotaping of interviews. The interviewee in that case objected to the videotaping because an adverse impression of himself may be formed from irrelevant factors (such as lighting, camera angle, misframing). The court considered that any potential prejudice arising from a video recorded interview did not counter-balance the use of video as an accurate and effective means of recording an interview.

In the present case, the Applicant did not produce any evidence to show that physically or psychologically the audio recording process was unduly intrusive, stress inducing or likely to cause misapprehension. Reyes J considered that on balance, the use of sound recording was more likely to protect (rather than interfere with) a citizen's well-being. Accordingly, the court rejected the argument that audio recording constituted unwarranted interference with privacy.

Although the court did not have to decide the issue of videorecording, Reyes J commented that he had “deep scepticism over the submission in Jaffe that video-taping may give rise to significant unfair prejudice”.

Commentary

It is too early to tell whether the SFC’s implied powers can be extended to videotaping. It is clear however, that this case heralds changes in the way the SFC conduct interviews. We have seen this in our cases with the SFC who have begun to introduce audio recording at interviews. This clearly raises concerns over the rights of affected individuals in an increasingly aggressive regulatory environment where the SFC's powers are already extensive.