Attorney General v. Ocean Timber Transportation Ltd
Read the full judgment text of CACV 86/1978 on BabelCite. This Court of Appeal judgment was delivered on 25 May 1979.
1. I have never been in any real doubt that the learned judge came to the right result. He made declarations that the Royal Hong Kong Police were not entitled to supply to the Royal Fiji Police Force documents which had been seized upon execution of a search warrant under s. 50 of the Police Force Ordinance, or copies of such documents, and that the documents or copies thereof should not be disclosed to any person other than those directly concerned with the investigation of the alleged offence
Cited by 2 cases
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CACV000086/1978
----------------- Coram: Huggins and Pickering, JJ.A., and Leonard, J. Date of Judgment: 25 May 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. I have never been in any real doubt that the learned judge came to the right result. He made declarations that the Royal Hong Kong Police were not entitled to supply to the Royal Fiji Police Force documents which had been seized upon execution of a search warrant under s. 50 of the Police Force Ordinance, or copies of such documents, and that the documents or copies thereof should not be disclosed to any person other than those directly concerned with the investigation of the alleged offence or offences set out in the information leading to the issue of the search warrant. 2. The history of the matter is as follows. The police in Hong Kong received from the Royal Fiji Police Force information which led them to suspect that the directors of two companies operating in Hong Kong had conspired to defraud their respective companies. An officer of the Commercial Crime Bureau swore an Information setting out his belief and suspicion that one of the companies was liable to apprehension under s. 50 of the Police Force Ordinance and that documents under its control at a stated address night throw light on the character or activities of the company. Perhaps surprisingly a search warrant was issued, but no point has been taken in these proceedings as to the validity of the warrant or of the seizure of the documents which were in fact seized pursuant to the warrant. However, having received assistance from the Royal Fiji Police Force the Royal Hong Kong Police not unnaturally desired to render reciprocal assistance. They offered, or were asked, to supply copies of some of the documents seized to enable the Royal Fiji Police Force to investigate whether any related offences had been committed in Fiji. The question which arises is whether they can lawfully do so as the law now stands. 3. Here I would interpose that nothing I am about to say should be construed as discouraging the police from extending to their counterparts in other states, directly or through Interpol, every assistance they can, provided only that they do not thereby put themselves outside the law of Hong Kong. In particular it must be noted that the documents in this case are the property of the Respondent. The Royal Hong Kong Police, if they think fit, may share any documents which belong to them with other police forces, provided always that there is no statutory limitation on the use which may be made of any particular class of documents. As criminals seek to take more and more advantage of international boundaries so the need for international cooperation in fighting crime increases. Nevertheless, the proviso that the police should not put themselves outside the law of Hong Kong is important, for law enforcement authorities must never regard themselves as above the law which they seek to enforce. There lies chaos. 4. The first contention on behalf of the Attorney General was that once the police had lawfully seized documents they were permitted to disclose them, either directly or by way of copies, to whomsoever they thought fit. In the alternative it was argued that they were permitted to disclose the seized documents to the police force of a friendly state within the Commonwealth for the purpose of investigating suspected crimes within the jurisdiction of that state. 5. I reject both contentions on the ground that where a statute authorizes an official to do an act which necessarily interferes with the general rights of one of the Queen's subjects such interference must not exceed what is reasonably necessary to attain the object of the act authorized. Section 50(7) of the Police Force Ordinance is in these terms:
The object of the seizure is to enable the police to obtain evidence which may assist in the conviction of a person for an offence with which he is charged or of which he is reasonably suspected to be guilty. However, such offence must have been an offence for which the person is triable in the courts of Hong Kong: it is not (and could not properly) be argued that the police in Hong Kong have a general power to apprehend persons for offences committed abroad. It follows that no warrant could have been obtained to search for documents which would merely throw light on the character or activities of a person liable to apprehension in Fiji but not in Hong Kong. If the police could not lawfully have obtained a warrant to search for such documents at all, they may not, having obtained possession of documents under the sub-section lawfully, use them for a purpose which would not otherwise have been lawful. The documents in this case were in the possession of the Respondent. The police had authority to take custody of them for a specific purpose and to that extent - but only to that extent - the right of the Respondent to possession was suspended. It was argued that, because the Royal Hong Kong Police still required the documents for the lawful purpose for which they were seized, the Respondent has no immediate right to possession which can be protected in a court of law. I do not believe that the courts are as powerless as is suggested: even if the Respondent is not entitled to the immediate redelivery of the documents to it, it still has the remainder of its possessory right over those documents. It is that which it seeks to protect. Whether the Respondent would have a right to the immediate redelivery of the documents should the Royal Hong Kong Police supply copies to the Royal Fiji Police Force it is not necessary to decide. Chan Hoi v Commissioner of Police (No. 2) 1968 H.K.L.R. 126 suggests that there would be an abuse of authority which would make the original seizure a trespass ab initio. Mr. Barlow submits that since Chic Fashions (West Wales) Ltd. v Jones 1968 2 Q.B. 299 that case, in so far as it was based upon the doctrine of trespass ab initio, is no longer good law. What happened there was that the police obtained a warrant to search for goods, the property of a named company, which had been stolen from the company's factory. In the course of their search they found no such goods but did find other goods which they reasonably but (it would seem) wrongly thought had been stolen by the person in possession from that factory and seized those other goods. It was held that the seizure was lawful. The basis of the decision was that public policy did not require that the police should leave the suspected goods until they had obtained a further warrant, but it was never in dispute that a further warrant could have been obtained. (As we have seen, in our case no further warrant could have been obtained authorizing the police to do what they now seek to do.) Moreover, Lord Denning, M.R. recognized at p. 313 that protection extended
It follows that if the constable did not act reasonably or if he retained the goods longer than necessary he would not be protected. Protected against what? If he did not act reasonably it is clear that the original seizure would be a trespass. But what if the seizure was justified at the time but the goods were retained longer than was necessary? The Master of the Rolls stated it as a general principle that a man could no longer be made a trespasser ab initio, by the doctrine of relation back. That does not mean that he cannot be held liable from the moment when he abuses his authority. Cons, J. in the court below thought that "the precise juridical nature of the wrong contemplated [was] immaterial". I respectfully agree and say no more on the subject. 6. In the alternative it was argued that public policy justifies the Royal Hong Kong Police in cooperating with the Royal Fiji Police Force in the manner proposed and that, on that ground, the court should decline to make the declarations sought The argument was advanced upon the footing that the relief sought was equitable and discretionary. Mr. Barlow relies upon the statement in the majority opinion in Rediffusion (H.K.) Ltd. v Attorney General of Hong Kong 1970 A.C. 1136, 1155F that a declaration and an injunction directed to preventing future unlawful acts are remedies which the court has a discretion to grant or to withhold notwithstanding that the plaintiff has established a threatened breach of his legal rights by the defendant. Mr. Ching contends that it is not equitable relief that is sought and he cites Chapman v Michaelson 1909 1 Ch. 238, where all the judges were agreed that an action for a declaration that a mortgage was illegal and void under s. 2 of the Money Lenders Act 1900 was not "an action for true equitable relief". Again, the genealogy of the remedy is immaterial. Its adopted parent is the Crown Proceedings Ordinance, under which this action was brought. The order was made under proviso (a) to s. 16(1) where it is laid down that,
The present is a case coming squarely within that proviso and, whether the relief claimed is "truly equitable" or not, it is clearly discretionary. 7. It therefore remains to decide whether a declaratory order ought to have been made even though jurisdiction to make it had been established. It is here that the question of public policy arises. Mr. Barlow contends that it would be contrary to public policy to make the order, because it is not in the public interest that the Respondent should be protected from an investigation of its affairs by the Royal Fiji Police Force. He goes so far as to assume that the Respondent's resistence to the proposed use of its property indicates a guilty mind and therefore to suggest that the company is seeking to protect an immoral interest. To adopt that contention might lead to grave abuse. The Respondent has made an allegation of a some what nebulous possibility of harm to its business if secrecy were not observed, and it is true that if copies of the documents were sent to Fiji these courts might be unable to control the use made of them. In so saying I do not for a moment suggest that the Royal Fiji Police Force would abuse any authority delegated to them by the Royal Hong Kong Police if such delegation is lawful. However, I do not think much weight attaches to all this. What matters is that an abuse of authority by the Royal Hong Kong Police threatens the Respondent's possessory right in the documents. The overwhelming public interest demands that the courts should prevent it and not refuse the relief sought. The time may have come when it is desirable to extend the powers of the Royal Hong Kong Police so that they can lawfully give greater assistance to other police forces in investigating crimes suspected to have been committed outside Hong Kong. If so, it is a matter for the Legislature, who will decide the nature of the powers and the conditions for their exercise. In the mean time, applying the law as I see it today, I have come to the conclusion that the learned judge was right to make the order he did and I would dismiss the appeal. 25th May 1979.
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----------------- Coram: Huggins and Pickering, JJ. A. and Leonard, J. Date of Judgment: 25 May 1979 ----------------- JUDGMENT ----------------- Pickering, J.A.: 8. I have never been in doubt that the decision of the learned judge in the Court below was the correct one and that view is reinforced by my having had the advantage of reading the judgments prepared by my brother Leonard and the learned President. There are no doubt many avenues by which the Royal Hong Kong Police Force can and does lawfully assist its overseas counterparts but what was proposed here was not one of those lawful avenues. If it be considered desirable that the police be at liberty to supply copies of documents seized under the provisions of section 50 of the Police Force Ordinance to police authorities abroad in order to assist those authorities in the investigation of suspected crime in their own countries, that is a matter for the legislature which, one would hope, would delineate precisely the limits of any such liberty. 9. I would dismiss the appeal. Representation: Barlow and W. Leung (Legal Department) for Appellant. C. Ching, Q.C. and H. Poon (Deacons) for Respondent.
----------------- Coram: Huggins & Pickering, JJ.A. and Leonard, J. ----------------- JUDGMENT ----------------- Leonard, J. : 10. For the purposes of this appeal the facts may be stated quite shortly. The plaintiff/respondent is a limited company incorporated in Hong Kong. On the 12th June 1978 officers of The Royal Fiji Police Force gave certain information to the Commercial Crimes Bureau of the Royal Hong Kong Police Force causing the Bureau to suspect that criminal offences may have been committed by directors of the respondent. The offences suspected were (a) a conspiracy by the directors to defraud the respondent of payments made to the account of the respondent at a bank in Hong Kong by Flour Mills of Fiji Ltd. under the terms of a contract made between the respondent and Flour Mills of Fiji Ltd. dated 9th March 1974 and (b) dishonest appropriation by the directors of such payments with intent permanently to deprive the respondent of them. Our Commercial Crimes Bureau applied for a warrant to enter and search the premises of the respondent. Consequent on the issue of that warrant end in accordance with its authority papers belonging to the respondent came into the hands of the Bureau. The alleged offences are still under investigation and the papers are still legally detained by the Bureau with a view to possible prosecution in Hong Kong. They have been shown to representatives of the Royal Fijian Police Force who have requested copies to assist them into their investigation of possible offences in Fiji. The respondent objects and seeks declarations that the documents or copies of them should not be permitted to be sent away from Hong Kong without its consent or permitted to be examined by or delivered to any person other than those directly concerned with the investigation of the alleged offences set out in the information leading to the search warrant pursuant to which the documents were seized. 11. At first sight this seems not unreasonable; the documents belong to the respondent. No suggestion has been made that the respondent is suspected of participation in any crime. Indeed the respondent is the victim of the offences alleged in the information leading to the issue of the warrant. 12. In its defence in the court below however the Crown claims that it is entitled to retain the documents pending completion of the investigation into the offences allegedly committed in Hong Kong. This is not disputed. It also claims to be lawfully entitled to make copies of them and to supply them to the Royal Fiji Police Force for the following reasons:
It is to be noted that on the pleadings the plaintiff/respondent does not rely on any claim resting on the notion of "confidentiality" and that it is in the defence that references to it arise. It is also to be noted that public interest is pleaded in the defence and in the defence alone. 13. In these circumstances and having regard in particular to the fact that the documents seized belong to the respondents it was not unnatural for the learned trial judge having set out the facts to move at once to a consideration of the Crown's contentions. The first contention, that the police may make disclosure to anyone they think fit he dismisses as too wide and limits lawful dealings by the police with documents seized under a power granted by the Legislature "to the object for which the Legislature has granted the power. It is that object which marks out the boundaries of the power, for no person to whom exceptional power is given by the Legislature may abuse that power or use it for improper ends." 14. When considering a contention of the Crown that to photocopy the documents would not amount to a conversion "either because the plaintiff has no immediate right to possession or because to take a photocopy does not destroy or harm the original" he thought it probable that there was nothing in either suggestion but said:
He goes on to dismiss the contention of the Crown that disclosure is necessitated by the public interest holding it to be "as much in the public interest that these courts should uphold the rights of the individual resident of this Colony as it is that our police should, wherever they are able to give assistance to other law enforcement authorities" and expressly to refrain from passing any opinion upon any duty of confidentiality as he did not think it had any application. 15. I have dealt at some length on the judgment in the court below not only because I find it compelling but also because at the basis of the argument advanced by Mr. Barlow were two contentions. Firstly that the approach of the learned trial judge was erroneous in that the structure of the judgment caused him to lose sight of the obligation imposed on the plaintiff/respondent of establishing the existence of a threatened legal right and secondly that his refusal to determine the precise juridical nature of the wrong contemplated amounted to a failure to exercise the judicial function. 16. As to the structure of the judgment I have little doubt but that this arose from the pleadings. On the pleadings the learned trial judge was faced with the question whether the proposed action of the police which affected the respondent's rights was justifiable. It was inevitable that he should consider the justifications advanced. I will deal later with Mr. Barlow's second primary contention. 17. His argument took the following course. The possession of the documents by the police was a lawful possession. They came into their possession lawfully under the warrant and that possession continues to be lawful so long as the investigation continues. He argued that the case of CHAN Hoi (No. 2) v. The Commissioner of Police and The Attorney General (1) should not be followed by this court. Its ratio decidendi is, he suggests, necessarily dependent on the doctrine of trespass ab initio - the doctrine that if authority is abused it may be treated as having never existed and the possession as having been trespassory from the beginning a doctrine which he suggests is obsolete. For this contention he relies on Chic Fashions v. Jones (2). In that case a decision of the Court of Appeal certain goods were seized but later returned. On the question as to whether the police were liable in damages, the following facts were agreed. None of the items seized was within the description of the search warrant, none stolen, none used in evidence and all lawfully acquired by the plaintiffs. In seizing the items the police believed on reasonable grounds that the items were stolen goods which would form material evidence. Lord Denning M.R. after a review of the authorities had this to say at page 312-3:
These are strong words and they persuade me that the doctrine of relation back is no longer appropriate but what that case dealt with was wrongful seizure by the police and not user or disposal of goods rightfully seized. It remains to be considered if the custody which the police acquired and presently exercise over these documents is "possession" within the meaning of that word as used in the area of trespass to goods so as to prevent possession remaining in the plaintiff. If the case of CHAN Hoi v. The Commissioner of Police and Another (1) is to be followed it appears to me that the police by seizure do not acquire such possession as would deprive the respondent of his rights in trespass. 18. The headnote in CHAN Hoi's Case indicates that the learned editor of the reports regarded its ratio as dependent on the doctrine but the judgments require careful consideration to determine if this is truly so. In CHAN Hoi's Case the plaintiff was not shown to be the true owner, although he was assumed to be in lawful possession of the goods in question; these were taken from him on his arrest by the police who handed them over to a third party. The argument put forward on behalf of the police was that the "possession" taken by them extinguished CHAN Hoi's possession and any possessory title he had. He therefore, they suggested, could not sue in detinue or conversion. He put his case in the alternative contending that the "possession" taken by the police was to be construed as a taking of custody only or that they became statutory bailees only. Mills-Owens J. was clearly most influenced by the trespasser ab initio doctrine holding that the act of disposal of the goods was an abuse of the statutory power of seizure and that the doctrine applied to the case of any such abuse. But he was equally clear that "taking possession in the subsection means seizing and detaining taking into custody or control" and did not operate to divest the possessor of his rights as such. He said :
He does not accept then accept that the effect of the subsection was to transfer possession in law. It was only if that was its effect and if no statutory bailment was created that it became necessary for him to apply the doctrine. Huggins J. clearly regarded the "possession" acquired under the section as insufficient to terminate the former possession of CHAN Hoi although he declined "to define the precise limits of the possession enjoyed by the police under the section". True he went on to say that :
He did not, however, in view of his interpretation of the word "possession" in the section concede the correctness of the contention. CHAN Hoi's Case (1) appears to me to be good authority for concluding that the temporary possession conferred on the police by section 50 of the Police Force Ordinance is not sufficient to divest the respondent of his rights in trespass. Mr. Barlow's argument involves the contrary view but if I am wrong I am still not convinced that by refusing to specify the "precise juridical nature of the wrong contemplated" the trial judge abrogated his judicial function. Mr. Barlow suggests that before he could grant a declaration he must do so. For this he goes first to Cox v. Green (3) in which it was held that a declaration would not be made in a dispute which was not a justiciable issue. The issue there was whether the plaintiff had acted contrary to the Ethical Rules of the British Medical Association. It was not an issue which concerned any right of property or any legal right. I do not accept his analogy of that case with this. 19. Here we are clearly concerned with a right of property. The plaintiff's right is the right of ownership as distinct from a right to immediate possession or custody. To show these documents to another is clearly an invasion of that right of ownership. For myself as I have shown I do not accept that the fact that the legislation permits the acquisition of "possession" must be an answer to a claim in conversion but, even if it does, what the respondent seeks here is not damages for conversion but a declaration of other concomitant rights of ownership - the right to have its documents not communicated or shown to others who are in no way alleged to be assisting in the interpretation of those documents, to be witnesses or to be required to see them for the purpose for which the respondent was deprived of their custody, the purpose for which the Legislature permitted their seizure. Rights of property and of the individual are involved. The legislation permits these rights to be invaded to a limited extent but if those limits are to be exceeded and they clearly would be exceeded if the contents of the plaintiff's private documents or copies of them are provided to the Royal Fiji Police against the respondent's wishes, the respondent is entitled to such relief as this court can give him. However desirable it may be that the Royal Hong Kong Police should assist the Royal Fiji Police, they may not do so against the wishes of the respondent as the legislation at present stands. I would dismiss this appeal with costs. (1) (1968) H.K.L.R. 126. (2) (1968) 2 Q.B.D. 299. (3) (1966) 1 Ch. 216 |
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