Lawyers say the ICAC has used its sweeping powers and widespread public support to expand its remit beyond graft-busting to more general police work. That has some worried, given the ICAC's powers, virtually without parallel in democratic societies around the world. The ICAC's ability to conduct covert surveillance, particularly wiretapping, without court permission has become a renewed focus of controversy in the wake of a pair of court decisions that call into question the propriety of the agency's actions.

Last Tuesday, Deputy District Court Judge Julia Livesey stayed a bribery trial after the defense revealed that ICAC officers had taped a privileged laywer-client conversation. She said the agency had breached Articles 29, 30 and 35 of the Basic Law, which safeguard against breach of privacy and protect lawyer and client privilege. The ICAC said it did not wish to comment on that case, because it is reviewing with the Department of Justice whether to seek an appeal.

In another notable case, in April District Court Judge Fergal Sweeney ruled that Hong Kong possesses no legal procedures to monitor the ICAC's ability to wiretap citizens and urged prompt action to set up a proper legal underpinning.

Lawyers say the anti-graft body has no legal procedures that regulate how, when and why it can wiretap and its lack of transparency prohibits the public from knowing if it is using illegal means to enact that tapping. Other law enforcement agencies in Hong Kong must apply to a judge before engaging in wiretapping. The ICAC, however, relies on reasonable suspicions that corruption is taking place to investigate using tapping in cases that may also turn into regular criminal prosecutions. It can do this with powers given to it by the chief executive.

One of those powers is the ability to create standing orders to wiretap individuals and equip others with listening devices. With the approval of the chief executive, the ICAC can issue operational orders to eavesdrop under certain ordinances specifically relating to the rooting out of corruption. But there are constitutional issues that the courts now are demanding must be addressed urgently.

Attorneys who have been involved in ICAC cases claim that the agency engages in a persistent, vaguely regulated system of eavesdropping and covert surveillance.

One lawyer, who refused to be identified, claims the ICAC has a Technical Services Department which works in conjunction with Office of the Telecommunications Authority. Its purpose is to tap the phone lines and the wireless communications between lawyers and clients and the general public, said the lawyer.

The lawyer said that there are two rules that criminal lawyers in private practice follow: don't talk on the phone about cases and never let their clients speak about details of an ICAC case when they are being held in the ICAC detention center.

OFTA denied such claims. ``We would like to advise that there is no such existence of the ``Technical Services Department'' in OFTA or any other types of arrangement with involvement of OFTA for the alleged purpose as mentioned in your inquiry,'' said public affairs manager Diana Fu.

Set up in 1974 with sweeping powers to root out a deeply rooted culture of graft in Hong Kong, the ICAC, say lawyers and scholars, is undermining democratic institutions in its quest to eliminate corruption, a job which critics and proponents alike have commended.

In her ruling Tuesday, Livesey said ICAC officers had known one of the defendants would be talking to his lawyers. It is against the Basic Law and the Hong Kong Bill of Rights to listen in on conversations between lawyers and their clients. It is also against the Basic Law to wiretap individuals without executive consent.

The ICAC, in a statement sent to The Standard, says surveillance is vital to beating corruption. ``Evidence collected through surveillance operations has been pivotal in detecting and prosecuting corruption crimes,'' wrote ICAC spokeswoman Valentina Chan.

``The ICAC is now seeking legal advice from the Department of Justice with a view to enhancing the internal guidelines [that govern wiretapping]. In light of recent comments made by the courts on these surveillance operations, the ICAC is actively pursuing with the government ways to provide a clearer legal basis for such operations, including the making of legislation,'' she noted. Simon Young, a law professor at the University of Hong Kong and former prosecutor in Canada, said in an interview that any curbs on the ICAC's powers should start with an independent commission that would review human rights jurisprudence around the world.

``The ICAC insists there should be secrecy over their methods,'' Young said. ``At the same time, I think they have to come out and be transparent ... It's in their interest to accept a legal regime. One can try to come up with a system that can meet the objectives of law enforcement and at the same time come up with an acceptable degree of protection of rights.''

Kevin Egan, who worked for 11 years as a prosecution lawyer for the ICAC and is now being prosecuted by the agency in a case related to ICAC raids on Sing Tao Daily, The Standard's sister paper, and other newspapers, said that ``[the ICAC] seeks at all times to expand their draconian powers.'' Lawyers like Egan question the means by which the ICAC achieves the end.

Empowered solely by the Chief Executive to root out corruption, the ICAC regularly taps phone conversations and legal visits between lawyers and clients, a direct infringement on Article 14 of the Basic Law, which guards privacy between lawyers and their clients, Egan said.

The ICAC denies any suggestion it operates illegally, pointing out that corruption is by nature secretive.

Chan said all officers are trained on the guidelines of the Basic Law. ``ICAC officers have been carrying out their investigative duties in strict accordance with the law and respect the rights of all people under the law,'' she said. ``All ICAC cases are heard in open courts, which will scrutinize how each and every prosecution is handled.''

Neville Sarony, a senior counsel in the Hong Kong Bar Association, said there was a simple solution to claims that the ICAC was acting outside of the Basic Law.

``An immediate way in which a sense of proportion could be put back in is to brief out prosecutions to the private bar,'' he said. ``There is a strong feeling in the community ... that [the organization] is not being used in the situation it should be.''

Lawyers have also charged that ICAC's secretive operation style leaves doubts over whether an abuse of power is driving the body to prosecute more private sector individuals.

The ICAC said that it was certain that its approaches were always within the law and that ends justified what has developed for Hong Kong a reputation for clean governance.

In another high-profile case to have gone against the graft busters, the ICAC's powers were questioned during last year's raids on Sing Tao Daily and six other newsrooms.

douglas.crets@singtaonewscorp.com