Attorney General v. Lui Lok

CACV000068/1982

Headnote

No order ought to be made for the evidence of a defendant to a civil action in Hong Kong to be taken in Taiwan when the only reason for that defendant's presence in Taiwan is to avoid criminal proceedings here.

BETWEEN

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Coram: Hon. Leonard, V.P., Cons & Zimmern, JJ.A.

Date: 28 July 1982

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JUDGMENT

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Cons, J.A.:

1. This is an appeal in the course of proceedings yet to be heard by which the Attorney General seeks to recover monies said to have been received by the defendant as bribes or secret commissions when serving as an officer in the Royal Hong Kong Police. The defendant retired from the force in 1969. The writ was not issued until 1978, by which time the defendant had left Hong Kong and had, after a short sojourn in Canada, been living in Taiwan since 1975. The Defence pleads that the monies and properties specifically relied on by the Crown do not belong to the defendant, alternatively, that they represent the fruits of a lucrative business carried on together with his father during the Japanese occupation of Hong Kong.

2. The defendant wishes to give evidence in support of his case, but does not wish to come to Hong Kong to do so. His reason is simple. In 1976, that is after he left here but before the writ was issued, a warrant was taken out for his arrest for an offence against Section 10(1)(b) of the Prevention of Bribery Ordinance, which relates to being in control of pecuniary resources or property disproportionate to present or past official emoluments. The defendant fears, and I should think justifiably, that were he to return to give evidence he would be arrested upon that warrant and brought to face that and perhaps other charges.

3. Accordingly an application was made on his behalf for his evidence to be taken before a special examiner in Taiwan. Power to that end is given by Order 39 r. 1(1) of the Rules of the Supreme Court :

4. The application came before Mr. Justice Kempster who, on the 21st May this year, made the order requested. The Attorney General appeals.

5. It is important to notice at the outset that the defendant has not retired to Taiwan in the sense that so many persons, when they come to the end of a busy and exhausting career in the noise and bustle of Hong Kong, retire to their original homeland or to some quiet and peaceful haven of their own choosing. The defendant went to Taiwan, and remains there, solely in order to escape from the activities of the I.C.A.C. That was so found by the judge below who said,

"He is effectively there to avoid the hazards and discomfort of criminal proceedings in Hong Kong."

And that finding is not disputed. To put it more bluntly, the defendant is a fugitive from justice.,

6. The judge based his approach to the question before him upon the English Court of Appeal decision in In re A Debtor^(l). In that case a petition in bankruptcy had been presented against the debtor who was then living in Spain. He disputed the jurisdiction, alleging that since before the petition he had ceased to reside or carry on business in England and had acquired a domicile in Spain. Subsequently warrants for his arrest were issued in England upon allegations of corrupt practices. The debtor accordingly applied for leave to give his evidence in Spain. The Registrar refused his application. The Court of Appeal declined to interfere, their reasons being given mainly by Lord Justice Buckley⁽²⁾ :

"But Mr. Muir Hunter places great reliance upon the outstanding warrants for the debtor's arrest; he contends that this is a conclusive factor in the matter. It is, I have no doubt, something which must be taken into consideration by the court, amongst the other relevant circumstances, in deciding whether or not to make the order for examination out of the country which is sought; but, for my part, I do not think that it should be given any very great weight in deciding whether or not to make the order. I think there is great force in Mr. Vallat's submission that the possibilitity of the debtor's arrest if he comes to this country ought not to prejudice the claims of the petitioning creditor, that cross-examination of the debtor before the court in this country is very highly desirable in this case having regard to the nature of the issues which have to be decided."

7. And later⁽³⁾ :

"... the questions which have to be decided are questions subjective to the debtor - questions of his frame of mind,his intention at various dates in relation to his residence, domicile and so forth - and those are matters in respect of which it seems to me that the physical presence of the debtor here to be cross-examined before the registrar before whom the petition comes to be heard is of very high importance; and in this case it would, in my judgment, pork an injustice to the petitioning creditor if the debtor were not to attend for cross-examination in this country.

8. It seems that the judge took these passages to mean by implication that if there had been no injustice to the petitioning creditor the fear of arrest would have been sufficient reason in itself to warrant an order. He accordingly asked counsel who then appeared for the Attorney to indicate shat prejudice the Attorney would be likely to suffer if an order were made for the defendant to give his evidence in Taiwan, and finding nothing in the considerations then put forward, he concluded that "the interests of justice are best served by granting this application so as to provide the trial judge with some evidence, albeit in the form of depositions, from the defendant".

9. Mr. Kaplan, who appears for the Attorney in this court, has criticised the judge's rejection of those considerations, but with every respect I think all his objections could be adequately provided for, except possibly that one which relates to the inevitable inability of the trial judge to assess the defendant's credibility from his demeanour in the witness box.

10. Mr. Kaplan's two main points, however, are that the defendant has shown no valid reason why examination in Taiwan is "necessary for the purposes of justice" and that an order of this kind in favour of a fugitive from justice would be contrary to public policy.

11. Mr. Martin Lee, who appears for the defendant, argues that he has no need to show a valid reason, but that as the defendant in the action he has what is virtually a right to the order. Alternatively he says that he has a good reason, even though it may be one that does little credit to him. For this alternative argument he relies upon comments made by Leonard J., as he then was, in Hong Kong and Shanghai Banking Corporation v. Fung Wing-king⁽⁴⁾ :

"I cannot find that the witness' refusal to come is completely unreasonable although the reasons proffered do him little credit."

12. For my part I find no help in that dictum. The application there related to the defendant's father who was in America and who declined to come and give evidence on his son's behalf. He would have been a witness and not a party to the action and the considerations then are quite different.

13. For his "virtual right" to the order, Mr. Lee relies on several cases. In chronological order the first is Emanuel v. Soltykoff⁽⁵⁾. That was a claim against a young Russian prince for jewelry ordered partly in England, at a time when he was still under age, and partly in Berlin, when he had already come of age. The Court of Appeal ordered a commission to issue to take his evidence in Russia.

14. A year later in Ross v. Woodford⁽⁶⁾, Chitty J. granted a commission to defendants in South Africa. He said (at page 42):

"There are many cases where the Court has been very reluctant to accede to applications by a plaintiff to take evidence abroad, because the tribunal has been chosen by the plaintiff himself : so too with regard to the case of a plaintiff asking for a commission to examine himself, the Court has full discretion, but it exercises that discretion strictly, and does not grant the application unless a very strong case is made out; but the case is entirely different when it is the defendant's application, and particularly that of a defendant lawfully resident out of the jurisdiction, according to the ordinary course of his life and business : and to compel these Defendants to come over here, at great expense to attend the trial, or give up their case, would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of a plaintiff asking for a commission to examine himself."

15. The following year, Lindley L.J. in New v. Burns⁽⁷⁾ approved those remarks and added "prima facie, a foreigner who is sued over here is entitled to a commission to take evidence at the place where he lives".

16. I most respectfully accept that as a correct statement of principle. However I do not think it applies to the present circumstances. I note that Lindley L.J. prefaced his remarks with the words "under these circumstances", which were that the defendant was a Canadian subject, and that it was only, as Smith L.J. pointed out in the same action, "by a happy stroke of luck" that the defendant came to England for a short while and that the plaintiffs were able to sue him there at all.

17. The position had been much the same in Ross v. Woodford⁽⁶⁾. The defendants, who were husband and wife, had only been temporarily resident in England, the husband was an American citizen who had never been domiciled in England, and whose true home was in the Transvaal. In Emanuel⁽³⁾, the prince was a Russian subject living in Russia.

18. In other words the defendants in all these cases might be termed "genuine foreigners, ordinarily resident abroad". In my view the defendant does not fall within that category.

19. Mr. Lee then says that even so it makes no difference, that even the worst villains are entitled to defend themselves when sued and have then "a right to use all means and appliances of defence"⁽⁸⁾. That remark was made with regard to alien enemies, but subsequent comments in the care appear to embrace the outlaw; as well as the traitor, the felon cad the excommunicated person. The reason for this, Mr. Lee suggests, is because it is simply a matter of doing justice between the parties, there is no question of public interest or Public policy. He refers to comments in the cases. Lindley L.J. in Lawson v. Vacuum Brake Company ⁽⁹⁾ said :

"It means, I suppose, for the purposes of justice between the plaintiff and the defendant."

And Baggallay, L.J. in Berdan v. Greenwood ⁽¹⁰⁾:

"Of course 'for the purposes and justice' does not mean in the interest of either party to the litigation, but in the interest of all the parties to the litigation."

20. Neither of these cases concerns an application by a defendant out of the jurisdiction, and it is difficult to see how any question of Public policy could have been relevant. Nor could the Point have been taken in In re A Debtor⁽¹⁾, where the purpose of the defendant's leaving the jurisdiction was one of the questions that still needed to be decided.

21. I agree with Mr. Lee that the defendant is entitled to defend himself with all the means normally available in the courts. But as I see it, he is asking now for something that is not normal. The established form of trial is for parties who wish to give evidence to be examined viva voce in court before the judge who has to determine the issues. The defendant is asking us to depart from that norm, and the only reason he puts forward in support is that he is fleeing from the justice administered by the same court to whom he makes his request. For my part that does not appear to me to be something that is "necessary for the purpose of justice", rather the contrary. Even in civil matters justice is comprised of something more than the mere settlement of disputes between individuals. It is something in which the whole of the community has a general, if usually only residual, interest. It would in my view be quite wrong for the courts of this colony to make such an order in favour of a person who could rightly be said to be ordinarily resident here, yet by his own choice and action has deliberately put himself beyond their jurisdiction.

22. I have approached this matter as one of principle, for no direct authority has been drawn to our attention. It would seem possible however that Chitty J. had something similar in mind when delivering judgment in Ross v. Woodford⁽⁶⁾. He mentioned that he was "satisfied on the evidence that the defendants did not leave this country with a view to escape being examined" and spoke later of "a defendant lawfully resident out of the jurisdiction". The emphasis is of course my own.

23. For these reasons I would allow the appeal and set aside the order made below.

(1) [1978] 1 W.L.R. 1512

(2) at page 1517 E

(3) at page 1518 A

(4) (Unreported), Action 1419 of 1972

(5) (1892) 8 T.L.R. 331

(6) (1894) 1 Ch. 38

(7) (1894) 64 L.J.Q.B. 104

(8) Porter v. Freudenberg, (1915) 1 K.B. 857 at 882

(9) [1884] 27 Ch. D. 137 at 144

(10) 20 Ch.D. 764 at 765

Leonard, V.P. :

24. I have had the advantage of reading in draft the judgment of Cons, J.A. which has just been read and agree that this appeal should be allowed for the reasons he has given. I should, however, like to make the following observations as the making or refusing of an order under this Rule is a matter of discretion.

25. The trial judge regarded as the "nub of the matter" the question "Is justice best served by the defendant effectively being precluded from giving any evidence or by his evidence being made available by way of deposition". If this is the test it would allow of only one answer but with respect I do not consider it is the correct test to apply. The nub of the matter is as I see it "Has the defendant established that it "appears necessary for the purposes of justice" that an order should be made?" It is the defendant's application and he has to support it. The defendant is out of the jurisdiction not because he has any ties with Taiwan and not because he is there in course of his life and business but, as his solicitors acknowledge in their letter to the Legal Department of the 5th March 1982, "because a warrant of arrest has been issued against him for an alleged offence contrary to Section 10(1)(b) of the Prevention of Bribery Ordinance, Cap. 201." No other reason is given for his not coming here to give evidence in the ordinary way. Although he must be regarded as an innocent man, he must also be regarded as a fugitive from the justice of our courts. The defendant's position is in no way comparable to that of the defendants in Ross v. Woodford⁽¹⁾ who WERE not well-off and who lived in South Africa in the ordinary course of their lives. There the question was whether the order should be made or the defendants should be compelled to face the dilemma of attending the trial at great expense or giving up their case. In making the order the Court there acknowledged that the application should not be granted unless a very strong case is made out.

26. In In Re A Debtor ⁽²⁾ the Court of Appeal recognised that the fact that there were warrants out for the arrest of a debtor, although proceedings were pending to have them quashed, was a factor which must be taken into consideration by the Court among other relevant circumstances. It was not regarded as a strong factor even though the debtor claimed a change in his domicile of choice. Notwithstanding the warrants the order was refused because cross-examination of the debtor in England was very highly desirable "having regard to the nature of the issues" and because questions subjective to the debtor rendered his physical presence to be cross-examined before the registrar before whom the petition in Bankruptcy came to be heard of importance. The trial judge relying on certain passages in this case asked Crown Counsel what prejudice the Attorney General would suffer if the order was made and came to the conclusion that the defendants absence would be prejudicial to the defendant rather than to the plaintiff. That may be so in the sense that he is unlikely to be believed in his absence but any such prejudice to the defendant is self-inflicted and therefore cannot be put into the scales as against prejudice to the plaintiff. That the plaintiff would suffer some (if minimal) prejudice cannot, I consider, be gain said.

27. The facts here are not similar to those in New v. Burns ⁽³⁾, for Hong Kong is the only appropriate venue for the hearing of this case so that there was no question of the plaintiff being enabled to sue here by chance. As appears from the defendants own letters, which are exhibited, I know not why, to the affidavit of the 19th April 1982, the defendant has always claimed to be a "Hong Kong citizen" whose residence in Taipei was and is a temporary expedient. He is not a foreigner being sued. Therefore the circumstances are not such as to demand that those suing him show why he should come here. He is required to make out a case why he should not. I cannot see that he has advanced a valid reason why he should not come and therefore I consider that his application was wrongly granted.

(1) (1894) 1 Ch. 39

(2) (1978) 1 W.L.R. 1512

Zimmern, J.A. :

28. I have read in draft both judgments just delivered and agree that the appeal should be allowed.

(3) (1894) 64 C.J. Q.B. 104

Representation:

N.T. Kaplan, Q.C., Harry Macleod & Michael Sinclair (Legal Department) for the Appellant.

Martin Lee, Q.C. & P. Lee (M/S Deacons) for the Respondent.