SFC's Power to Audio Record an Interview

The High Court has made a ruling dismissing a challenge lodged by a person under investigation in respect of the SFC’s power to audio record an interview held under section 183(1)(c) of SFO.

SFC was seeking to audio record an interview with a person who can only speak in Putonghua under an insider dealing investigation because the SFC investigator is not a fluent Putonghua speaker. Initially SFC proposed to video record the interview. Given this person's objection, SFC proposed to audit record the interview but the person objected also to this and brought judicial review proceedings. The proceedings were held in chambers (not open to the public) and the name of the applicant is suppressed by order of the court.

The lawyer appearing for the person put through the following major arguments:

• There is no express power under SFO enabling the investigator to insist on audio recording the interview.
• Nothing in section 183 allows the investigator to insist on the person's "audio signature" to the interview record.
• Audio recording is "invasive" of a person's privacy.

However, the Judge concluded that the power to record an interview by audio means is reasonably incidental and necessary to the power under section 183(1)(c) of SFO to compel a person under investigation to attend an interview and answer questions and that in insisting upon an audio recording of an interview SFC and its investigators did not act ultra vires. An audio recording does not involve any kind of "signature". Audio recording is an important way of ensuring the integrity of the interview process and does not interfere illegally with any privacy right.