Yu Chee Yin v. The Commissioner of the Independent Commission Against Corruption

HCAL000097/2000

HCAL 97/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 97 OF 2000

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Coram: Hon Hartmann J in Court

Dates of Hearing: 16 and 19 June 2000

Date of handing down Judgment: 7 July 2000

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J U D G M E N T

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1. On 28 February of this year the Applicant filed a notice of application for leave to apply for judicial review. Leave was granted on 3 March by Stock J. By notice of motion, the Applicant sought discovery of various documents which he contended were required for the fair disposal of his matter. The Respondent opposed that application. The Applicant also sought to introduce fresh evidence in the form of various witness affirmations. In response, the Respondent filed a summons seeking an order that the affirmations be excluded from consideration. Having heard submissions, I ordered that the application for discovery be dismissed and that the affirmations be excluded from consideration. My reasons are contained in this judgment.

The factual background

The Applicant joined the Independent Commission Against Corruption ('the ICAC') in 1979, rising to the rank of Senior Investigator.

2. On 10 December 1997, the Applicant went with several colleagues to a restaurant in Tsimshatsui. According to the Applicant, he was invited to go to the restaurant in order to meet a former ICAC officer named Tsui Ka-kit (Alex Tsui). Alex Tsui had held the rank of Deputy Director of the ICAC but in 1993 had been dismissed from the service in circumstances which attracted considerable publicity. Clearly, the Applicant appreciated that the meeting would not be smiled upon by the senior hierarchy of the ICAC. On his own admission, when he met the ICAC companions who were to accompany him to the restaurant, it was agreed that they should not walk together. This was so that they should not be 'over-exposed'. However, what was not known to the Applicant was that his movements (and those of his companions) were being kept under surveillance by a branch of the ICAC responsible for such duties.

3. When the Applicant and his colleagues reached the restaurant, they entered a private room. It is not disputed that Alex Tsui joined them in that room and paid for the dinner. The Applicant has protested at all times that the dinner was nothing more than an innocent social gathering and that, including himself, there were only 6 persons present. However, on the basis of other information available to him, the Commissioner of the ICAC ('the Commissioner') came to the view that, in fact, there were 3 more persons present. These 3 persons consisted of a former ICAC officer named Chiu Chi Ming who had also been dismissed from the ICAC and 2 persons who spoke Mandarin. There is no need in this judgment to say any more of the purported background of the Mandarin speakers.

4. In March 1898, an internal investigation began into the incident. The Applicant was arrested, it being suspected that he had corruptly divulged secret information. Criminal proceedings, however, were dropped and were replaced by an internal disciplinary investigation. In September 1999, the Applicant was notified that consideration was being given to terminating his employment. He was supplied with a document setting out the reasons and invited to make representations. This he did.

5. On 9 October 1999, the Applicant received official notice of termination of his employment. A statement of reasons accompanied that notice:

The Commissioner is satisfied that it is in the interests of the Commission to terminate your appointment as Commission Against Corruption Officer (Middle/Lower) for the reasons that your conduct has cast grave doubt on your judgment and integrity as an ICAC officer and on your loyalty to the Commission on the following grounds:-

(i) At the instigation of Chief Investigator LUI Kin-che (CI LUI), you attended a dinner meeting in East Ocean Restaurant in Tsimshatsui East on 10 December 1997 and met Mr TSUI Ka-kit, former Deputy Director of the ICAC who was dismissed in 1993. Acting on CI LUI's instruction, you provided counter-surveillance for CI LUI and Senior Investigator SIT Ah-lung (SI SIT) when they proceeded to the restaurant to ensure that they were not followed, so that the meeting would not be made known to the ICAC.

(ii) In addition to CI LUI, SI SIT and yourself, the dinner meeting was attended by Mr TSUI, Senior Investigator TING Ka-lun, Mr Andrew LAM Ping-cheong, a former ICAC officer, Mr CHIU Chi-ming, another ICAC officer who was dismissed under Section 8(2) of the ICAC Ordinance, and two other persons. At the material time, the ICAC was carrying out investigations into serious offences suspected to have been committed by persons known to be associates of Mr TSUI. On 1 September 1997, you were involved in an arrest and search operation involving some of the associates. Mr Andrew LAM is a solicitor who represented several suspects in the ICAC investigations. You have failed to give a satisfactory account of the purpose of the dinner gathering and discussion held. Furthermore, you said only six persons attended the dinner meeting while in fact nine persons had attended. When interviewed during the disciplinary investigation, you failed to disclose the presence of Mr CHIU and the two other persons. Your failure to give a full and truthful account of the meeting has left the Commissioner in serious doubt as to the extent of your involvement with Mr TSUI and the other personalities concerned.

6. The Applicant now seeks an order of certiorari to quash the decision of the Commissioner of the ICAC.

The legal framework within which termination proceedings were conducted

7. Section 8(2) of the Independent Commission Against Corruption Ordinance, Cap 204 ('the Ordinance') empowers the Commissioner to terminate the employment of officers under his command. The procedures to be followed if termination is contemplated are set out in the section which reads:

(2) (a) Subject to paragraph (b), the Commissioner may, if he is satisfied that it is in the interests of the Commission to do so, after consulting the Advisory Committee on Corruption, terminate the appointment of an officer.

(b) Before terminating an appointment under this subsection -

(i) the Commissioner shall by notice in writing inform the officer concerned that the termination of his appointment is under consideration and the reasons therefor; and

(ii) in the notice such officer shall be given a period of not less than 7 days within which to make, and is hereby authorized to make if he so wishes, written representations to the Commissioner as regards such reasons or as to why his appointment should not be terminated or as regards both.

(c) Where an appointment is terminated under this subsection -

(i) the Commissioner shall notify the officer in writing of the termination; ...

8. On 21 September 1995, the Commissioner issued a circular setting out the procedures to be adopted if termination of an officer's service was being contemplated. The circular set out the following procedures:

(a) The officer will be interviewed by CAC ['the Commissioner'] or an officer acting on his behalf to assist CAC in deciding whether the officer has a case of termination of appointment to answer.

9. This procedure constitutes the 'internal investigation': invariably involving the questioning of the officer.

(b) If there is a case to answer, the officer concerned will be informed by written notice:-

(i) that the termination of his appointment is under consideration and of the grounds for such action; and

(ii) that the officer may within a period prescribed in the notice, which will be not less than seven days, make written representation to CAC regarding the grounds of the contemplated dismissal, and/or as to why his appointment should not be terminated.

10. The procedures outlined here are those mandated in the Ordinance under sections 8(2)(b)(i) and 8(2)(b)(ii).

(c) A report of the case together with the officer's representations and CACs' views on those representations will then be submitted to the Advisory Committee on Corruption (ACOC) for advice; a copy of the material submitted to ACOC will be provided to the officer.

11. This procedure is mandated in section 8(2)(a) of the Ordinance which directs that the Commissioner will, before he makes any decision, consult with the Advisory Committee on Corruption which - as its name states - is an advisory body only, not a decision-making body.

(d) ACOC will consider the case, may invite the officer to appear before it, and will advise CAC who will decide in the light of that advice whether or not to terminate the appointment.

12. The decision whether or not to terminate an officer's employment is one for the Commissioner only. But it is to be made 'in the light' of advice received from the Advisory Committee on Corruption.

Applicant's request for discovery seen in light of his grounds for judicial review

13. By way of general principle, Glidewell LJ said the following in R v. Secretary of State for Home Affairs ex parte Harrison [1997] JR 113 at page 118:

"What the judge [at first instance] said was:

"In my judgment the role of the court in judicial review is different from its role in an ordinary action."

That is correct. It is impeccable. Judicial review is a different sort of process from the fact-finding process which is a necessary part of any action begun by writ and the process of applying the law to those facts. Judicial review notoriously is based upon the way in which a decision has been made, not whether the decision itself was correct."

14. In judicial review, the burden of showing that discovery is necessary rests on the person seeking it. In the present case, therefore, the Applicant must show that the discovery he seeks is necessary either for disposing fairly of his cause or for saving costs (see 0.24 of the Rules of the High Court). As Kaplan J expressed it in Au Shui-yuen, Alick v. Sir David Ford, Deputy to the Governor and Others [1991] 1 HKLR 525:

"It is not sufficient to show that these documents are relevant. It is not enough to show that production is "desirable" ..."

15. Nor will discovery be ordered when it amounts to a 'fishing exercise'; that is, when the intent is to trawl through the Respondent's papers to try and find material which may be used to mount an enhanced or further attack on the decisions under challenge.

16. In R v. Secretary of State for the Environment ex parte London Borough of Islington and the London Lesbian and Gay Centre [1997] JR 121 (CA) Lord Justice Nolan said:

The key question is whether the discovery which the applicants seek is, in the terms of RSC Ord. 24, r. 8, "necessary ... for disposing fairly of the cause or matter". The question may be rephrased more narrowly by asking whether such discovery is necessary for determining the issues of fact which arise in the case. Disputed questions of fact do not normally arise in judicial review cases, but they can of course arise and they may be crucial.

17. In order to know what - if any - are the issues of fact that have to be determined in the present case, it is necessary to refer to the Applicant's Notice of Application for Leave to Apply for Judicial Review. There are 3 challenges made in that document which may, I believe, be summarised as follows:

First Challenge

That it was 'grossly unfair' and a 'breach of the rules of natural justice 'for the Commissioner to base his decision on information received from 'an undisclosed source' or on information 'which may not be admissable in evidence in formal disciplinary proceedings'.

18. Mr Blanchflower, who appeared for the Respondent, submitted that the issues identified in this first challenge are ones of law and not of fact. He expressed it thus:

Whether natural justice requires a decision maker to disclose the sources of his information, and whether "evidence" must be in a form admissible in "formal disciplinary proceedings" are questions of law.

19. In my opinion, he is correct. By an 'undisclosed source' I presume the Applicant refers to the anonymous surveillance operatives and the evidential material gathered by them. When the Commissioner made his decision, he kept those surveillance sources confidential and it is that, as I understand it, which is the essence of the Applicant's complaint. It is, therefore, a complaint related to the manner in which the Commissioner came to his decision, not the merits of it. In the circumstances, I do not see that there is any issue of fact in contention here. The necessary facts are accepted.

20. As to the 'admissability' of such confidential information in 'formal disciplinary proceedings', the identity of such proceedings was never made known. I am not sure, therefore, whether the Applicant speaks of formal disciplinary proceedings in the generic sense or refers to some particular proceedings to which ICAC officers are subject. But in any event, the confidential surveillance material has already been sufficiently identified in its general character to enable the Applicant's counsel to make the necessary submissions on the principles of admissability. In such circumstances, this again being a matter of law, I fail to see how the disclosure of material such as log books and video film (if it exists) can advance this aspect of the Applicant's cause.

Second Challenge

That it was again a breach of the rules of natural justice for the Applicant to be given 'no fair opportunity for correcting or contradicting what was said against him' and to be given 'no opportunity to test, by cross-examination or otherwise, the veracity of the statements' upon which the commissioner relied.

21. Mr Blanchflower submitted that this challenge too was one of law not of fact. Again, I believe there is merit in that submission. Mr Blanchflower submitted as follows:

This ground raises a question of law: to what extent does natural justice entitle a person to contradict and correct adverse information, or to cross-examine those persons who have given prejudicial information against him?

22. When the Applicant complains that he was not given an opportunity to correct or contradict what was said against him, I take that to mean that he was not shown the evidential material in advance so as to be able to know fully what the case was against him and to be able to make his representations in light of that material. That in my view is an objection to the procedure adopted by the Commissioner. Similarly, the complaint that he was denied the right to cross-examine must relate to the denial of a procedural right. In the circumstances, it is not a matter for this Court whether or not material has existed upon which to base a cross-examination.

Third Challenge

That the Respondent's failure to 'conduct adequate enquiries' to establish exactly how many persons attended the dinner at the restaurant has led the Commissioner to 'a conclusion' that was 'Wednesbury unreasonable' in the sense that it was based on information which could not reasonably support his decision.

23. Here again Mr Blanchflower has contended that the issue is one of law and not of fact. He expressed it thus:

This ground raises a question of law: did the Respondent's failure to conduct further enquiries result in his decision being 'Wednesbury unreasonable'?

24. That there were other people at the dinner whose identities were known to the ICAC and who could be contacted has never been in issue. The complaint, as I understand it, relates to the fact that the Commissioner failed to take their statements and to give due heed to those statements in his decision making. That again, in my view, is a matter of the manner in which the Commissioner reached his decision; namely, that he did not avail himself of all the evidence available but was selective and, therefore, as Mr Egan, Respondent's leading counsel, has expressed it: "he purposefully hamstrung himself". But that, in my view, does not involve a question of considering any of the material which the Respondent seeks by way of discovery. Nor does it involve a study of the affirmations of those 'other people' which the Applicant has now obtained and wishes to have admitted into evidence. In order to resolve the matter raised in the third challenge, the primary facts are already agreed.

25. There being no material issues of fact which must be determined to resolve the various challenges made by the Applicant to the decision of the Commissioner, I would be inclined on that ground alone to rule that the application for discovery be dismissed. On that broad basis, the Applicant has not discharged the onus on him of showing that discovery is necessary to dispose fairly of his cause or to save costs. But should I be wrong in this regard, it is necessary to consider the individual classes of documents in respect of which the Applicant seeks discovery. There are 8 in all.

Classes 1 and 2: the ICAC surveillance materials

26. In his reasons for terminating the Applicant's employment, the Commissioner spoke of the manner in which the Applicant had conducted himself as he proceeded from the Tsimshatsui MTR station to the restaurant. The Applicant admitted that he and his companions had not proceeded in one group to avoid 'over exposing' themselves. However, the Commissioner said that the Applicant had done more than that, he had undertaken 'counter-surveillance' measures in an attempt to ensure they were not followed. The Commissioner also spoke of 9 persons attending the dinner not just 6 as the Applicant had said. In light of this, the Applicant has sought discovery of the ICAC surveillance material. The names of individual officers are not required but the material is to include such items as the statements of the surveillance officers, notebook and log entries, operational briefs and all video or photographic material.

27. But how will this material assist the Applicant in his cause before this Court or assist the Court itself? This Court is unable to view the material to decide whether counter-surveillance measures were taken or not. It has no expertise in the matter and will have to hear evidence. That will involve the Court in deciding issues of fact which are the prerogative of the Commissioner. As was said by Cons V-P in Ngoyen Ho and Others and Director of Immigration [1891] 1 HKLR 576: 'Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal'.

28. Mr Richmond, junior counsel for the Applicant, has argued that the Applicant is entitled to discovery of this material because, as he put it, he is entitled to know the 'true nature' of the surveillance evidence in order to understand why the Commissioner has accepted that evidence (together with other supporting evidence) rather than his own evidence.

29. But a summary of that surveillance evidence has now been supplied to the Applicant. It appears in the affirmation of Yiu Cheuk Wah, a Principal Investigator in the ICAC. The summary begins as follows:

'Sometime after 18:00 hours SIT was seen waiting near the Hang Seng Bank at the concourse of the Tsimshatsui MTR Station. YU was also seen in the vicinity. They stayed separate at a distance and did not make any contact.

Shortly after, LUI joined SIT at the concourse and put his arm over SIT's shoulder and they walked towards the exit. YU walked behind LUI and SIT and appeared to be taking counter-surveillance precautions.

LUI and SIT emerged from the MTR exit at Carnarvon Road. They walked from the MTR station to the East Ocean Centre. During their walk, YU walked behind them all the way to the East Ocean Centre and appeared to be spotting for persons following them.

At the East Ocean Centre LUI, SIT and YU entered the VIP Room "Coral" of the Restaurant together ...

30. No suggestion has been made that this summary is plainly wrong. No independent material has been put before the Court to indicate that it is so. It appears to me that the Applicant is basing his application on the following contention: "I disagree with the factual findings of the Commissioner. I therefore require full disclosure of the material on which he based his decision to see whether, and to what extent, it supports the Commissioner's decision. If the material does not, in my view, support his decision, that will give me specific grounds upon which to attack the decision".

31. But it seems to me, apart from it being a fishing exercise, that the Applicant is here putting the cart before the horse. Surely it is for the Applicant to say - as he has pleaded - that it was a breach of natural justice for the Commissioner not supply him with this material before he was asked to make representations. As a result, he was not able to study the material and make specific answers to it. If the Court accepts that argument and quashes the decision of the Commissioner, remitting the matter for reconsideration, that will be the time for the Commissioner to supply the necessary material in accordance with this Court's directions.

32. Admittedly, Mr Yiu has only summarised the surveillance evidence but, as I have said earlier, no suggestion has been made that there is independent evidence available to show that the affirmation is plainly wrong. In such circumstances, I do not see how the Applicant can be given leave to go behind the affirmation to seek to discover whether it is accurate in all material particulars or not. That amounts to a search for new grounds upon which to attack the Commissioner's decision and that, in plain terms, is a fishing exercise. I am supported in this by the dicta of Glidewell LJ in the English Court of Appeal decision in R v. Secretary of State for Home Affairs ex parte Harrison (supra):

Mr Laws submits that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether or not it is correct unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. If there is such material it may be right to order discovery to follow that up. But without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which, as I have said, would be to act as a challenge to the accuracy of the affidavit. With that submission also, which is of general application, I agree.

Classes 3 and 4: the full statements of fellow ICAC officers

33. The Commissioner's decision to terminate the Applicant's employment was based, in part, on statements made by 2 ICAC officers who accompanied the Applicant to the dinner. The officers were Ting Ka Hun and Sit Ah Lung. Both officers made a number of statements. Edited versions of those statements have been made available to the Applicant. The Respondent contends that the undisclosed parts of the statements are not relevant to the judicial review.

34. It has been contended on behalf of the Applicant, however, that those extracts from the statements which have been used against him did not constitute consistent admissions made by the 2 officers. It is argued that it is apparent from what has now been revealed that the admissions constituted 'significant departures' from what had been said by the officers at other times. It is therefore essential that the full, unedited statements be made available so that the Applicant can ascertain why and how these departures came about. But this again, in my view, is a fishing exercise. The Applicant is seeking out material to assist his cause with no independent evidence to show that it does or does not exist.

Class 5: the Report of the ICAC Operations Review Committee made in March 1999 (in so far as it relates to the Applicant)

35. In his affirmation, Yiu Cheuk Wah explained the constitution and workings of the Operations Review Committee in the following terms:

The Operations Review Committee ("ORC") is comprised of the Commissioner and the Head of Operations, ICAC, as ex-officio members, along with other ex-officio members and civilians appointed by the Chief Executive. One of its terms of reference is to oversee the ICAC's corruption investigations, specifically:

To receive from the Commissioner reports on the investigations the Commission has completed and to advise on how those cases that on legal advice are not being subject to prosecution or caution, should be pursued.

36. Initially, the Applicant was the subject of a criminal investigation by the ICAC but, as I have said earlier, that investigation was later dropped. In his affirmation, Mr Yiu explained the procedure that was adopted:

On 5 May 1999 the ORC considered the corruption investigation report relating to: YU, LUI, TING and SIT, and endorsed the ICAC's recommendation that:

(a) no further investigative action be taken;

(b) the officers be informed that on the basis of facts then known, no further criminal investigative action would be pursued; and

(c) consideration be given to any disciplinary or administrative action which may be necessary arising from the investigation.

37. It was not the responsibility of the Operations Review Committee to supervise or advise on any disciplinary or administrative action that was taken. In short, after its recommendations, it had no further involvement in the matter. The Applicant does not complain of any procedures adopted or recommendations made by this committee. I therefore fail to see how its report can be of any relevance. There can only be one reason why the Applicant seeks access to the Committee's report: it is to try and find material favourable to him.

Class 6: those portions of the Advisory Committee on Corruption report not already disclosed to the Applicant

38. The Committee's report in respect of the Applicant has been disclosed to him. The Respondent, however, has not disclosed those portions of the report which relate to other ICAC officers. The Respondent says that those other parts are not relevant to the Applicant's cause.

39. It has been argued on behalf of the Applicant, however, that all information concerning the other officers and how it was that they came to 'change their statements' should be discovered. Why? Because, as Mr Richmond expressed it, 'the Applicant queries the manner in which the statements came to be changed' and 'wishes to understand why the Commissioner placed reliance' on those statements. Again, in my opinion, this is clearly a fishing exercise.

40. For the reasons given in respect of classes 3 and 4; namely, the full statements of the other ICAC officers, I am satisfied that discovery of the edited version of the report should not be allowed.

Classes 7 and 8: the full membership list of the Operations Review Committee and the Advisory Committee on Corruption

41. Mr Egan has argued that the Applicant is entitled to know the full membership of the 2 committees in order to discover whether the reality of the situation is that 'Ceasar is reporting to Ceasar'. But the Applicant already has some indication of the membership of the Operations Review Committee and, in greater detail, of the Advisory Committee on Corruption.

42. It is not part of the Applicant's stated cause that there was no genuine separation of responsibilities and that accordingly, as Mr Egan expressed it, Ceasar was reporting to Ceasar. Patently, therefore, the Applicant is here seeking out new grounds. In short, as with his request in respect of all either classes of documents, he has sought permission to embark upon a fishing exercise.

The application to file fresh evidence

43. The Applicant has sought to support his cause by filing fresh evidence in the form of various affirmations. The affirmations have been made by persons who were either dining with the Applicant at the restaurant or serving the guests. Suffice to say that they support the Applicant's contention that there were only 6 people dining that night. The Respondent has objected to the filing of this fresh evidence.

44. It is common cause that the evidence contained in the affirmations was not before the Commissioner when he made his decision. Indeed, that is the foundation of the Applicant's third challenge. But a claim of unreasonableness in the 'Wednesbury' sense is judged in light of the information that was before the decision maker when he made the decision. It is not judged in the light of information that has only become known after the event. In this regard, Cons V-P said in Nguyen Ho and others v. Director of Immigration (supra):

From that exposition alone I am satisfied that unreasonableness as a factor by itself, what might be termed the second limb in Wednesbury, can only be judged with regard to what was known to the inferior tribunal at the time.

45. The Court can, however, receive fresh evidence when it accords with the principles laid down in R v. Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584. Those principles were approved in Re Lo Wing-tong [1990] 1 HKLR 325 at page 337 where Cons V-P said that Hong Kong courts would exclude fresh evidence in judicial review unless that evidence adhered to the traditional principles set down in Powis. The principles are summarised as follows:

1. The court can receive evidence to show what material was before the minister or inferior tribunal.

2. Where the jurisdiction of the minister or interior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error.

3. Where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In case fresh evidence is admissable to prove the particular misconduct alleged.

46. In my judgment, the fresh evidence which the Applicant seeks to place before the Court does not accord with any of these principles. Nor, frankly, do I see how that evidence advances the Applicant's challenge which, as I understand it, is based on the premise that the Commissioner had an obligation to seek out all available witness evidence, whether that evidence was favourable, unfavourable or neutral, and it was his failure in this regard that made his decision 'Wednesbury unreasonable'.

Public Interest Immunity

47. In light of my ruling that none of the documents sought by the Applicant are necessary for disposing fairly of the Applicant's cause or for saving costs, it is not necessary for me to go into the question of public interest immunity in any depth.

48. The Respondent has claimed public interest immunity in respect of 2 classes of documents only: the surveillance material and the report of the Operations Review Committee. In my judgment, if it had been necessary, the claims would have been upheld. I say this in full awareness of the fact that it is a serious step to exclude evidence relevant to an issue and to do so the step must be justified by a convincing demonstration that the public interest requires it. In short, the public interest in preserving the confidentiality of certain acts of our law enforcement agencies must be weighed against the public interest that information which might assist the Court should be not be kept from it.

49. However, let me repeat the words of Kaplan J in In re Au Shui Yuen, Alick v Sir David Ford Deputy to the Governor and Others (supra):

Corruption is a serious matter and it is very much in the public interest that investigations into corruption not be hampered and that the guilty be brought to justice ... It is essential that materials relating to ongoing criminal investigations should not be A disclosed.

50. I would also refer to the judgment of Hunter J in Khan v. O'Dea and Another [1987] 1 HKLR 576 in which the judge studied the relevant legislation and came to the following conclusion:

It seems to me perfectly plain that the ICAC and the UMELCO Committee can only start to perform their proper functions and give effect to the statutory purposes set out in and clearly discernible from the two Ordinances that I have mentioned, if they can act in complete confidence. The suggestion that their files are on risk of discovery in civil proceeding must in my judgment be put aside completely.

51. The UMELCO Committee referred to was a complaints committee. In the present case, the Operations Review Committee is a body which also discharges a sensitive and confidential role. Reports prepared for it contain full details of criminal investigations together with comments, views and assessments; they also include legal advice. This information is released to the Committee on a basis of mutual trust.

Orders

52. My orders, therefore, are as follows:

1. That the application by the Applicant for discovery of all classes of documents is dismissed.

2. That the order sought by the Respondent in the summons filed in these proceedings on 9 June 2000 is granted so that the affirmations listed in that summons are excluded from consideration.

3. That costs be reserved.

Representation:

Mr K B Egan and Mr M Richmond, instructed by Messrs Y S Lau & Partners, for the Applicant

Mr M C Blanchflower, of the Department of Justice, for the Respondent