Kevin Barry Egan v. The Commissioner of the Independent Commissioner Against Corruption and Another

CACV000006/1991

Administrative law - judicial review - whether on the facts the arrest of the applicant, the search of his home, his detention and interview at the offices of the ICAC were lawful - whether informations for indictable offences were validly laid - the common law right of private individuals to lay informations - the proper construction of ss.10 and l0A of the Independent Commission Against Corruption Ordinance, Cap. 204 - whether ex parte leave rightly set aside.

Judicial review - procedure - observations on the undesirability of fixing a date for the substantive hearing of the application which is 7 months after ex parte leave was granted.

BETWEEN

Coram: Fuad, V.-P., Penlington, J.A. & Liu, J.

Dates of hearing: 6 and 7 March 1991

Reasons for judgment handed down: 14 March 1991

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal by Mr. Kevin Barry Egan ("the applicant") against the decision of Bewley, J. dated 8th January 1991 whereby he set aside the ex parte order Saied, J. had made on 6th November 1990 granting him leave to apply for judicial review. At the conclusion of the hearing on 7th March, we dismissed the appeal, indicating that we would give our reasons later.

2. The applicant is a barrister now at the private Bar but he was, at all times material to this appeal, a Crown Servant - a Senior Assistant Crown Prosecutor in the Prosecutions Division of the Legal Department.

3. Early in the morning of 31st August 1990, Mr. Alfred Morris, a Chief Investigating Officer of the Independent Commission Against Corruption ("ICAC") accompanied by other ICAC officers went to the applicant's flat in a block of government quarters. Mr. Egan and Mr. Morris knew each other. Mr. Morris had a search warrant with him which had been issued under s.10B of the Independent Commission Against Corruption Ordinance (Cap.204).

4. The ICAC officers were there as a result of certain allegations made. on .the day before by Mr. Warwick Reid in a statement to the ICAC. Mr. Reid had absconded in late December 1989 while he was on bail for offences contrary to the Prevention of Bribery Ordinance (Cap. 201). He had been re-arrested at the airport here on his arrival from the Philippines. On 6th July 1990 he pleaded guilty in the High Court to an offence under s.10(2) of that Ordinance and is now serving a sentence of imprisonment. In the long statement he had made to the ICAC on 4th June 1990, under promise of certain immunities, he had not mentioned the applicant.

5. Mr. Morris and his team were invited into the flat by the applicant, who was shown the search warrant and told by Mr. Morris that he had reason to believe that between late October and late December 1989, knowing or believing that Mr. Reid had committed an arrestable offence, he (Mr. Egan) had assisted Mr. Reid to leave Hong Kong and that he was being arrested for that offence. Mr. Egan protested: "I have absolutely nothing to say, except that it's preposterous, absolutely preposterous."

6. The applicant showed Mr. Morris the firearms and ammunition he had in his flat together with the licence for possessing them. He was then taken to his office  in Queensway. Mr. Morris was armed with a search warrant for this office too. The applicant handed Mr. Morris his passport on being asked to produce it.

7. From there, the applicant was taken to the ICAC headquarters in the Murray Road Carpark Building and locked up in a cell. At midday, the applicant was interviewed, with his consent, by Mr. Morris and another senior ICAC officer, Mr. Richard Bell. In the early evening he was asked some further questions about what he had said. He was detained in custody over night and interviewed the following morning by the same ICAC officers. The interviews were video-recorded.

8. The broad allegations the officers had made against Mr. Egan, based on the statement Mr. Reid had given, was that he had supplied his passport, a hand gun and ammunition to Mr. Reid. He had also offered to supply him with a shotgun and further ammunition. All these allegations Mr. Egan strenuously denied.

9. The material before Bewley J. also showed that Messrs. Herbert Smith and Mr. Adrian Huggins had been appointed by the Attorney General to advise him and act on his behalf in relation to the prosecution of the applicant, Mr. Reid, Mr. Oscar Lai, Mr. Eddie Son and Mr. Alick Au in a series of alleged criminal offences. After advice had been obtained from a Leading Counsel in London, the decision to institute the criminal proceedings against the applicant which are the subject of the judicial review application, was taken by the Attorney General.

10. On 1st September 1990 Mr. Morris (who was in possession of a warrant card issued under s.9 of the ICAC Ordinance - the relevance of this will later appear) laid three informations before the Central Magistrates Court alleging the following offences against the applicant:

11. On the same day, the applicant was taken before Mr. M.P. Burrell. He denied the charges and was remanded in custody under s.79 of the Magistrates Ordinance (Cap. 227). He was released on bail by Sears, J. on 10th September 1990.

12. On 10th October 1990, Mr. Mark Johnson, an assistant solicitor employed by Herbert Smith, and authorised so to do by the Attorney General, laid informations before the magistrates Court alleging that the applicant had committed the following additional offences:

13. On that day the applicant appeared before Mr. Peter Line and denied the additional charges. Thereafter, the magistrate, acting under s.80A of the Magistrates Ordinance, appointed 24th October 1990 as "the return day" for the continuation of the committal proceedings made necessary by the fact that all the six charges related to indictable offences.

14. I mention here, because a point was made of it, that when, on 1st September 1990 Mr. Morris laid the informations in respect of charges A, B and C, at the head of the form his designation was given as "a Chief Inspector of the Independent Commission Against Corruption".

15. Although the informations relating to charges D, E and F were also the subject of the applicant's complaints before Bewley, J., all allegations concerning them were dropped on his behalf during the hearing of this appeal, and they no longer feature in the case.

16. To resume the chronology of events, on the "return day", 24th October, Mr. Adrian Huggins, instructed by Herbert Smith, acting for the Attorney General, represented the prosecution in Mr. Line's court. The requirements of s.80B of the Magistrates Ordinance had been satisfied and so Mr. Huggins sought Mr. Egan's committal for trial. When the procedure laid down in s.80C(1) had been complied with, the applicant, as was his right under that section, elected to have the charges against him heard at a full preliminary inquiry to be conducted in accordance with the provisions of the Ordinance specified in s.80C(2).

17. However, the preliminary inquiry did not proceed because Mr. Line adjourned the proceedings until 7th November 1990, on the applicant's request, to give him an opportunity of conferring with his legal advisers about the possibility of applying to the High Court for judicial review.

18. Mr. Egan had written three letters to the Attorney General early in October 1990 setting out what were in his opinion "cogent reasons" why the Attorney General should withdraw all the charges pending against him. In the words of the affidavit in support of his application for leave to apply for judicial review, his objections were: "on the basis of a lack of jurisdiction in the ICAC to investigate such charges, lay informations in respect of such charges and/or prosecute such charges." These letters elicited responses which are not mentioned in the applicant's affidavit, two from the Attorney General and one from Herbert Smith. They explained what Leading Counsel in London had advised about the jurisdiction points raised and that the advice had been accepted by the Attorney General. I would observe here that they demonstrate very clearly that it was the Attorney General's personal decision that the prosecution should go ahead on the six charges before the Magistrates Court.

19. Mr. Egan's application for leave to apply for judicial review was set in motion by the filing, on 6th November 1990, of the notice required by RSC 0.53, r.3(2). The relief sought was formulated as follows:

"Relief Sought

20. The grounds upon which relief was sought were framed in this way:

"Grounds on which Relief is Sought

21. As regards Mr. Egan's verifying affidavit, most of the facts he relied upon are referred to in my narrative of background events. However, in the light of the principal grounds upon which resort to judicial review was sought, I mention here that he points out (para.8) that at no time during the course of his arrest and the search of his home and office had any of the ICAC officers asked him any questions relating to (or requested him to reveal or produce) any money, securities, valuables etc. "or anything whatsoever that might reasonably be suspected to be the proceeds or by-products of corruption."

22. Mr. Egan added (para. 12) that during the first interview, in response to a direct question, Mr. Morris had "admitted that there was no allegation of corruption against me nor was I the subject of a corruption investigation, but that the ICAC were in my case solely concerned with an allegation that I had assisted an offender to unlawfully leave Hong Kong..."

23. As we have seen, on 6th November 1990, Saied, J., on an ex parte application, granted Mr. Egan leave to apply for judicial review and, under 0.53, r.3(10(a), the judge ordered that the grant of leave should act as a stay of the proceedings against the applicant until the determination of the application.

24. Following the grant of leave, Mr. Egan issued a notice on 20th November 1990 which, I note with very considerable surprise and great concern, indicated that the hearing of the substantive application for judicial review would take place on 3rd June 1991. I do not know, and have not sought to enquire, how it came to be that so long a delay was countenanced - the committal proceedings (if they were to go ahead) would have been held up for nearly 8 months, and the judicial review would have been heard some 7 months after leave had been given. For reasons which are really too obvious to state, the matter should have been listed for hearing as soon as practicable and everyone concerned ought to nave worked towards that end. Surely we can do better than that in Hong Kong.

25. However, before the judicial review could be heard, on 28th November 1990, the respondents took out their application to set aside the grant of leave and, after a two day hearing in mid-December, Bewley, J. delivered a reserved judgment on 8th January 1991 allowing their application.

26. The respondents' application was supported by an affidavit sworn by Mr. Johnson which verified, inter alia, the following facts:

27. On behalf of the respondents, Mr. Huggins submitted that Mr. Morris had the right and power to lay the first three informations on 1st September 1990 either as a private individual and/or alternatively by virtue of an Authorisation issued on 14th March 1979 by Mr. D.R. Boy, the Crown Prosecutor of the day, under s.12 of the Magistrates Ordinance. The relevant part of the Authorisation which is to be found as GN 756 of 1979 reads:

28. The respondents argued that since the offences charged against Mr. Egan were ones over which the magistrate had jurisdiction under Part III of the Magistrates Ordinance, and once the procedure laid down in that Part had been followed, the court had both the jurisdiction and the duty to hold committal proceedings in relation to the charges and allegations contained therein against the applicant pursuant to the Ordinance, irrespective of any attacks which the defendant might make upon the lawfulness of his arrest, the searching of his premises and his detention by officers of the ICAC. In committal proceedings, they submitted, the court was not concerned with the way in which the evidence was obtained (unless it related to a confession by the defendant) but with whether the evidence supported the charges and was sufficient to warrant the defendant's committal for trial before a judge and jury.

29. As regards the arrest, search and detention of the applicant, the respondents contended that since the ICAC were engaged in investigations into suspected offences under the prevention of Bribery Ordinance by Messrs Reid, Lai and Soh, and since during those continuing investigations other offences allegedly committed by the applicant had been disclosed, the ICAC were entitled to arrest him because they reasonably suspected that he was guilty of those other offences and reasonably suspected that those offences were connected with the suspected offences under the Prevention of Bribery Ordinance which they were investigating, under s.10(2) of the ICAC Ordinance, which reads:

Moreover, it was submitted, Mr. Egan's arrest was lawful . because during the investigation of offences committed by Mr. Reid, and the alleged offences committed by the others, the ICAC reasonably suspected him of having committed an offence contrary to s.90 of the Criminal Procedure Ordinance which is one specified in paragraph (e) of subsection (5) of s.10 for the purposes of subsection (2).

30. The respondents relied on s.10A of the ICAC Ordinance for the power of the ICAC to take the applicant after his arrest to the offices of the Commission and to detain him there for further enquiries. The relevant parts of s.10A are in these terms:

"10A. (1) A person arrested under section 10 -

31. The search warrants used by the ICAC officers were, it is pointed out, issued under the authority of s.10B of the ICAC Ordinance. That section applies to evidence of the commission of any of the offences referred to in s.10, which, as we have seen, includes the offence created by s.90 of the Criminal Procedure Ordinance.

32. On behalf of the respondents the point was also made that the Commissioner of the ICAC had the statutory duty under s.12(c) of the ICAC Ordinance, on behalf of the Governor, to:

"investigate any conduct of a Crown servant which, in [his] opinion, is connected with or conducive to corrupt practices ..."

33. It was further submitted on their behalf that for the purposes of s.10 of the ICAC Ordinance, the ICAC were justified in believing that the alleged firearms and passport offences were connected with the corruption offence to which Mr. Reid had pleaded guilty (as well as other corruption offences which he was suspected of having committed) in that they were committed so that Mr. Reid could flee justice in respect of those corruption offences. The firearms and passport offences were the means by which the applicant was suspected to have committed the offence of assisting a corrupt official to flee the administration of justice. They were thus linked with, consequential upon, associated with, related to and therefore "connected with" the offences committed by Mr. Reid, with the suspected offences committed by others under the Prevention of Bribery Ordinance and with corrupt practices by Mr. Reid and others. It was contended that helping a corrupt official to escape justice was conduct connected with corrupt practices.

34. The respondents also submitted that once evidence had come to light during an investigation which established a prima facie case against the applicant, it was the duty of the ICAC to place it before the Attorney. General for his consideration. The ICAC's role was stated to be investigation, followed by the provision of the results of that investigation to the Attorney General and to the solicitors appointed by the Attorney General.

35. The main ground for the respondents' application to set aside the grant of leave was, therefore, that by reason of all these matters Mr. Egan had not disclosed an arguable case; instead, the case he had advanced was one which was hopeless and vexatious. There were other. grounds put forward but the only ones which are still alive are those mentioned in the Respondents' Notice - that certiorari is an Order which brings up into the High Court a decision of an inferior Court or Tribunal or of a public authority for it to be quashed. Mr. Egan's application sought Orders of certiorari in relation to search warrants, charges and the consent of the Attorney General for proceedings under s.90 of the Criminal Procedure Ordinance. Orders of certiorari were inappropriate in relation to the search warrants, charges and consent. Further, the decision of the Attorney General to prosecute the applicant was, upon authority, not subject to judicial review.

36. In his judgment, the learned judge reviewed the background and set out some of the relevant legislation. As regards the applicant's belief, stated in his letter of 1st October to the Attorney General, that the investigation of Mr. Reid's corrupt activities had ended with his conviction on 6th July, the judge said that had this been the case s.10(2) of the ICAC Ordinance would not have been triggered "and it would have been arguable that Mr. Morris had no jurisdiction to lay any of these informations." However, the judge observed:

"Mr. Johnson's affidavit makes it clear ... that the Reid investigation was - and is - continuing. His immunity is conditional on the usual factors and a further prosecution, though unlikely, cannot be ruled out. He may, in addition, have more information to give concerning corruption in the legal profession, which it would not be improper for the ICAC to enquire into even after his conviction."

37. In respect of a submission made by Mr. McCoy for the applicant (that there remained an important arguable point, namely that the prosecution, for offences not involving corruption, had been brought by the ICAC in fact if not in name, and that this was not the function of that body nor had this been intended by the legislature - the court therefore lacked jurisdiction to try the charges) the learned judge said that it was impossible, in his view, to reconcile that submission with s.12 of the Magistrates Ordinance, which he set out:

He rejected the argument that s.12 was concerned only. with summary offences since it was to be found in Part II of the Ordinance with the heading: "PROCEDURE IN RESPECT OF SUMMARY OFFENCES", for reasons that he gave.

38. The judge then referred to and set out Mr. Boy's authorisation of 14th March 1989 and noted the fact that Mr. Morris was in possession of a warrant card issued under s.9 of the ICAC Ordinance and was therefore authorised to lay an information "in respect of an offence."

39. The judge concluded his judgment as follows:

40. Most of the arguments advanced before Bewley, J. were repeated before us. Mr. McCoy submitted that the respondents, both to the judge and in their Respondents' Notice had sought to portray the applicant's case as, primarily, a misconceived challenge to the decision of the Attorney General to institute criminal proceedings against him and to the jurisdiction of the Magistrates Court to entertain such proceedings. This, he suggested, misrepresented the position. While the applicant did mount challenges to both of the above, they were consequential challenges. The fundamental challenge was, and always had been, to the jurisdiction the Commissioner of the ICAC, acting through his officers, lawfully to do all or any of the following:

41. What Mr. McCoy termed as the fundamental issue was that Mr. Egan had not voluntarily appeared before the court on 1st September 1990; nor had he answered a summons. He had appeared by virtue only of the fact that he had been forced to do so because he was in custody. This custody, Mr. McCoy contended, was and had, for the previous 27 hours, been unlawful and unconstitutional, and for this reason alone the relief sought had to be granted because the entirety of the proceedings against him were tainted by this fundamental flaw; it would be contrary to law to allow proceedings to continue that were bases upon an illegality and the deprivation of the applicant's fundamental legal rights.

42. These somewhat bold submissions need to be scrutinised one by one. However, I do not wish it to be thought that by examining each one, I am accepting, that on the material before the court, the ambit of judicial review, wide though it is, permits a challenge, by means of that remedy, to all or any of the acts complained of.

43. As regards the arrest of the applicant by Mr. Morris of the ICAC on 31st August 1990, clearly the arrest was lawful, if only because the unchallenged evidence was that Mr. Morris reasonably suspected him of being guilty of the offence of assisting an offender under s.90 of the Criminal Procedure Ordinance, which was disclosed during an investigation by the ICAC of suspected offences under the Prevention of Bribery Ordinance. It is common ground that Mr. Egan was told why he was being arrested - on suspicion of having committed that offence. The statutory authority for this arrest is to be found in s.10(2)(b) of the ICAC Ordinance, read with paragraph (e) of subsection (5). Mr. McCoy accepted that he could not argue that an arrest by the ICAC for a s.90 Criminal Procedure Ordinance offence could be unlawful on the evidence before the court. In the light of this concession, speaking for myself, I was unable to understand now he could continue to argue that the arrest was unlawful. It was plainly perfectly lawful.

44. On the uncontroverted evidence the ICAC officers were authorised to search the applicant's home and office by virtue of search warrants issued under s.10B of the ICAC Ordinance. I do not see how it can be said the searches were other than lawful.

45. In respect of the taking of the applicant to the ICAC offices and detaining him there for 27 hours after his arrest, Mr. McCoy submitted that on a proper interpretation of s.l0A of the ICAC Ordinance (which, as we have seen provides that a person arrested under s.10 may be taken to a police station to be dealt with under the Police Force Ordinance 232) or to the offices of the ICAC), requires that a suspect must be taken to a police station under s.10A(1)(a) unless he has been arrested for a true corruption offence (i.e. offences referrer to in s.10(1) and s.12(b) of the ICAC Ordinance). He argued that to read those provisions as giving the ICAC an option, as Bewley, J. had done, was entirely inconsistent with the clear wording of the provisions and the clear intention of the legislature.

46. Mr. McCoy drew support for his submission from the fact, as he put it, that s.10 of the ICAC Ordinance deliberately provided for two categories of "arrestees": s.10(1) for "corruption arrestees" and s.10(2) for "non-corruption arrestees".

47. It seems to me that Mr. McCoy is asking us to interpret s.10A(1) as if it read:

"A person arrested under s.10 for an offence mentioned in s.10(1) may be taken to the offices of the Commission. A person arrested under s.10(2) must be taken to a police station ..."

That is not what s.10A says. The words of the section are unambiguous and there is no reason why they should not be given their ordinary meaning. Since the applicant was lawfully arrested for the offence created by s.90 of the Criminal Procedure Ordinance and the offender allegedly assisted had pleaded guilty to a corruption offence, it was entirely reasonable that the ICAC should wish to make further inquiries about the matter, and they had power to do so under s.10A(2)(a); Mr. Egan was later required to be brought before a magistrate (as happened) pursuant to s.10A(6). The applicant was lawfully escorted to the ICAC offices; he was lawfully detained there; he was lawfully (and with his consent) interviewed there and he was lawfully taken before. the magistrate.

48. As regards the complaint that the ICAC formally charged the applicant with offences. which later became the subject of charges A, B and C, this happened on 1st September 1990 before he was taken to court. I do not understand the objection to this - Mr. Egan was cautioned and it gave him an early opportunity of confirming and placing a record his categorical denials of all the allegations against him.

49. I now turn to what is, perhaps, the most serious complaint made on behalf of the applicant which it was hoped would be examined and adjudicated upon by judicial review. It is said hat the ICAC commenced criminal proceedings against Mr. Egan by the laying of the three informations by Mr. Morris, one of their Chief Investigators. Mr. McCoy submitted (and this submission is in the forefront of all the points raised by the applicant) that a perusal of s.10 of the police Force Ordinance indicates that the intention of the legislature was that the police would be responsible for the preservation of law and order in Hong Kong and that responsible for the investigation and detection of offences, as well as the apprehension and prosecution of offenders, was also to be theirs. Much later, Mr. McCoy argued, to meet a particular social problem (the existence of wide-spread bribery and corruption) the legislature had created another law enforcement body (the ICAC). Both its name and the long title of the Ordinance creating the Commission, suggested that its mandate was anti-corruption, and the same applied to the principal Ordinance it administered and enforced, the Prevention of Bribery Ordinance.

50. Mr. McCoy emphasised that since the ICAC was a creature of statute, it was the statute which determined the limits of its powers and jurisdiction. The powers of the ICAC and its officers were derived through the Commissioner, and his powers were set out in s.13. The extent of the Commissioner's powers however, depended upon his duties, and those were set out in s.12. He contended that for the actions of the ICAC against which Mr. Egan mounted his fundamental challenge to be "lawful, valid, legal, intra vires and constitutional", power to act as they did had to be found in paragraphs (a), (b) or (c) of s.12, and none of these paragraphs could, he suggested, assist the respondents.

51. In my judgment these matters do not have to be addressed, for what seems to have been lost sight of by those advising the applicant is the fact that from the evidence it is perfectly fair to say, as Mr. Huggins does, that the decision to prosecute and the institution of the charges had been by or on behalf of the Attorney General, whose authority cannot be doubted. I think that it is worth noting precisely what Mr. Johnson had sworn in his affidavit dated 29th November 1990:

Indeed, in respect. of one of the charges (the offence alleged contrary to s.90 of the Criminal Procedure Ordinance) we have seen that the Attorney General gave his written consent. Of course, the law does not require him to lay informations before the court in person. The fact that an ICAC officer rather than a police officer took the informations and laid them in the Magistrates Court can surely make no difference.

52. I think it is useful here to set out paragraph 317 of Vol.29, Halsbury's Laws of England 4th ed.:

53. Quite apart from what is there said about informations being laid on someone's behalf, it is clear that Mr. Morris, as an individual, had power to lay the three informations at common law, and no statute that I know of has curtailed or removed that power. Two recent cases confirm the private person's ancient right: Rubin v. DPP [1990] 2 QB 80 and R. v. Stafford Justices [1990] 3 WLR 656. The fact that Mr. Morris is an ICAC officer, and so described himself at the top of the informations, did not divest him of his rights as a private person, nor does it mean that "the ICAC" laid the information.

54. We were addressed at great length upon the validity, continuance in force and applicability of Mr. Boy's Authorisation, GN 756 of 1979, the relevant part of which I have set out above. Mr. McCoy submitted that s.12 of the Magistrates Ordinance concerned only summary offences and that in any event, the delegations made by successive Attorneys General had always been specifically restricted to summary offences. Moreover, if GN 756 of 1979 could apply to indictable offences, it had been revoked consequentially when the delegation (under s.7 of the Legal Officers Ordinance, Cap. 87) made by the Attorney General to the Crown Prosecutor, under the authority of which Mr. Boy had made the Authorisation, itself had been revoked by GN 1683 of 1979 (current version GN 1818 of 1986).

55. Mr. Huggins, for the respondents, submitted in a closely reasoned argument that the authorisation was valid, still in force, applicable as well to indictable offences and could be relied upon if it were necessary to do so.

56. In the light of. the conclusions I have reached on the issues earlier discussed, I do not find it necessary to decide this particular controversy between the parties. I merely remark in passing that it seems to me a pity that questions regarding the validity of that Authorisation, whether it is still in force and whether it embraces indictable offences, can only be resolved by a reference to so many statutory provisions and Gazette Notices, and after lengthy argument.

57. With great respect to Mr. McCoy's forceful submissions, I have to say that there was no merit whatsoever in this appeal; there was not the slightest evidence of any illegality or, indeed, unfairness. For my part, I was quite unable to see how, on the material before us, it could reasonably be said that Mr. Egan had been deprived of any rights, fundamental or otherwise, to which he is entitled, from the moment he was arrested until the time when the committal proceedings, interrupted by this application for judicial review, should have begun.

Penlington, J.A.:

58. I have read the judgment of Fuad, V.-P. in draft. I agree with it and there is nothing I wish to add

Liu, J.:

59. I have had the opportunity of reading the judgment of my Lord the Vice-President in draft. I agree with his reasons and conclusion.

Representation:

Mr. Gerard McCoy (William Au & Co.) for the Appellant

Mr. Adrian Huggins (Herbert Smith) for the Respondents