Read the full judgment text of FACC 000008/2000 on BabelCite. This FACC judgment was delivered on 22 March 2001 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Criminal law – stay of criminal proceedings – abuse of process – inherent jurisdiction of the court – company inspection under Companies Ordinance (Cap 32) – disclosure of inspection materials by Financial Secretary to police – privilege against self-incrimination abrogated by s 145(3A) – direct use prohibition – derivative use immunity – whether a free-standing common law or constitutional derivative use immunity survives statutory abrogation of the privilege. Criminal law – Bill of Rights (Cap 383) – Articles 10, 11(1) and 11(2)(g) – scope of the right not to be compelled to testify against oneself – application only after a person is charged. Criminal procedure – stay of prosecution on the ground of executive abuse of power where a fair trial remains possible – Bennett jurisdiction – sparingly exercised and not a disciplinary jurisdiction. Criminal procedure – stay of prosecution on the ground of prejudicial pre-trial publicity – curative effect of judge’s directions to jury, lapse of time, jury vetting, change of venue – last resort. Companies Ordinance (Cap 32) – construction of ss 143, 145(3A), 146, 147 and 148 – whether the Financial Secretary is precluded from passing inspection materials to the prosecuting authorities. Theft Ordinance (Cap 210) s 21(1) – charges of conspiracy to defraud and publishing false statements of account arising from four share transactions in Allied Group companies in 1990 and 1991. The 1st respondent was the controlling shareholder and chairman; the 2nd respondent was a director and financial controller. On the SFC’s recommendation, the Financial Secretary appointed an Inspector under s 143(1)(c) of the Companies Ordinance; the Inspector, acting under the Financial Secretary’s directions through a Steering Group, gave the Commercial Crime Bureau access to inspection materials, including compelled interviews with the respondents, from January 1993. The Inspector’s abridged report was released at a press conference on 18 September 1993, coinciding with widely publicised police raids on Allied Group premises. The respondents were later arrested and committed for trial in 1999. The trial judge (Pang J) granted a permanent stay of the prosecution on the grounds of abuse of process and prejudicial pre-trial publicity. The Court of Final Appeal allowed the Secretary for Justice’s appeal. Held, answering the five certified questions, that (1) the Inspector’s provision of materials to the police was effected on the Financial Secretary’s instructions, applying the Carltona principle, and was within the statutory purposes of a company inspection; the Ordinance contains no “gateway” provision and the Inspector himself had no independent power of direct disclosure, but the Financial Secretary’s disclosure was intra vires having regard to ss 143, 145(3A), 146(4), 147 and 148; paragraph (e) of the terms of reference, requiring the Inspector to obtain evidence in admissible form, was questionable but had been appropriately limited. (2) There is no free-standing derivative use immunity either at common law or under the Bill of Rights; s 145(3A) abrogates the privilege and substitutes a direct use prohibition only, and derivative use is inferentially permitted. Article 11(2)(g) confers a testimonial immunity applicable only after charge, and does not prohibit derivative use of independently obtained evidence. Saunders v United Kingdom does not establish a derivative use immunity as part of a fair trial. (3) The prosecution may use materials lawfully seized under search warrants whose informations were based on the Inspector’s disclosures, since the disclosures themselves were intra vires; questions of admissibility and any residual exclusion discretion are for the trial judge. (4) The court has an inherent, sparingly exercised jurisdiction to stay a prosecution for executive abuse of power even where a fair trial remains possible (Bennett), but it is not a disciplinary jurisdiction; on the facts, no abuse of power was made out. (5) A permanent stay for pre-trial publicity is a last resort; the court assesses fairness practically, relying primarily on the trial process, the lapse of time and the trial judge’s directions to the jury, and may consider adjournment, change of venue or jury vetting. Pang J’s discretion was vitiated by findings of “indelible” prejudice and unsupported findings of orchestration unsupported by evidence. The appeal was therefore allowed, the permanent stay set aside, and the matter remitted to the Court of First Instance for trial before a different judge. Order nisi for costs against the respondents in the Court of Final Appeal, with liberty to file written submissions on costs within 14 days.
Legal issues: Inspector’s power to disclose inspection materials to the Financial Secretary and prosecuting authorities · Scope of privilege against self-incrimination and derivative use immunity · Use of police-seized materials obtained by reference to Inspector’s disclosures · Discretion to stay a criminal prosecution for abuse of power by executive authorities or an Inspector · Pre-trial publicity as a ground for staying a criminal prosecution
Outcome: Appeal allowed; the trial judge’s order for a permanent stay of the criminal proceedings was set aside and the matter remitted to the Court of First Instance for the respondents to be tried before a different judge.
Cited by 5 cases