Ocean Timber Transportation Ltd v. Attorney General

HCA001967/1978

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Coram: Cons J.

Date of Judgment: 13th September 1978.

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JUDGMENT

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1. The plaintiff is a limited company incorporated in Hong Kong and carrying on the business, amongst others, of timber merchants and ship charterers. It has its registered office in Gammon House. On the 15th June this year an inspector of police attached to the Commercial Crimes Bureau swore out a search warrant from the Central Magistracy of this colony. That warrant was expressed to be issued under section 50, subsection 7, of the Police Force Ordinance. For the sake of completeness I will read that sub-section.

"Whenever it appears to a magistrate upon the oath of any person that there is reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom, or any other article or chattel which may throw light on the character or activities of any person liable to apprehension under this section or on the character or activities of the associates of any such person, such magistrate may by warrant directed to any police officer empower him with such assistants as may be necessary by day or by night -

2. That same day the inspector and other members of the police attended the plaintiff's offices in Gammon House to execute the warrant. They seized a number of private and confidential documents belonging to the plaintiff. Further private and confidential documents were requested by the police on two other days shortly thereafter and were handed over in answer to the request. It is not suggested that the handing-over was done other than by reason of the existence of the warrant. The number of the private and confidential documents now in the hands of the police is large. The police are still going through them and it will be some time before they have finished.

3. In the meanwhile, the Royal Fiji Police Force has asked to be supplied with copies of the documents to assist it in the investigation of possible offences against the laws of Fiji. No copies have yet been supplied but the police here feel that they may wish to do so in due course or perhaps to allow inspection of the originals. The plaintiff takes the view that this should not be done without its prior consent and it therefore brings this action and by it seeks two declarations. Firstly, a declaration that the documents seized from the plaintiff's registered office pursuant to the search warrant dated the 15th June 1978 obtained on Writ No. 1517 and information No. 515 or copies of the said documents should not be permitted to be sent away from Hong Kong without the consent of the plaintiff company; and secondly, a declaration that the said documents should not be permitted to be examined by or delivered 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 said search warrant pursuant to which the said documents were seized. The offences set out in the information are the dishonest appropriation by the directors of the plaintiff of certain payments made in Hong Kong to the plaintiff and conspiracy by the directors to defraud the plaintiff, also in Hong Kong. Similar offences are alleged against the directors of another company which is not party to these proceedings.

4. The defence put forward by the Attorney General, who is the formal defendant to these proceedings, in effect rests on two contentions. Firstly, that the police may disclose the documents, either directly or by way of photocopies, to any person or body that they think fit; and secondly, that if they may not go that far, they may at least disclose them to the police force of a friendly state within the Commonwealth for the purposes of criminal investigation within the jurisdiction of that state.

5. In my view, the first contention is too wide. The power to enter, search and take possession is given to the police to assist them in their duty to investigate crime or suspected crime. In the course of that duty it may well be proper to show documents seized to others who are not in the police force, for example, potential witnesses or persons who may be particularly expert in some scientific or specialist field. It may well be that the police would be justified in making one or several copies of the documents for purposes of that kind or even merely to make investigation within themselves more efficient or more swift. There could be no complaint against dealings of that nature for they are all proper 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. If he does so, the court will intervene to stop him. It makes no difference, in my view, that the search and seizure have been authorised by a magistrate. A magistrate's warrant authorises the police to enter and to take - it does not authorise them to misuse what they may have taken. The court orders concerned in Buckley v. Goss⁽¹⁾ and in R. v. Lushington⁽²⁾ are of quite a different character.

6. It is then said, for the Attorney, 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 in any way. It seems probable to me that there is nothing in either suggestion. The first would fail because, on the authority of Chan Hui v. The Commissioner of Police⁽³⁾, where the police abuse their power of seizure they become trespassers ab initio; the second is, with respect, based on a fallacy. Deliberate destruction or harm is naturally conversion, but neither is a necessary ingredient. The mere sue of another's goods may be conversion if it is inconsistent with that other's rights. It is said that any man may photograph the property of another. That may be so, if the property is visible to the public at large, like a man's house or his motor-car. I would not expect the same to apply to property which he deliberately keeps secret. And that appears to have been the view taken by Walton J. in the old case of Thurston v. Charles⁽⁴⁾. But I express no carefully considered opinion on these two points, for it seems to me that the question of conversion is irrelevant in the present instance. No wrong, as yet, has been committed. The plaintiff seeks the aid of this court to prevent a wrong that may be committed in the future. It invokes this court's equitable jurisdiction. The precise juridical nature of the wrong contemplated is immaterial. The court will, if satisfied that it is a wrong of some kind, prevent the commission of that wrong so far as it is able.

7. I turn then to the Attorney's second contention that the police are entitled to show or give copies of documents to the police force of a friendly state. It is said that in the condition in which the world finds itself today the public interest justifies the co-operation of the various police forces throughout the world for the purpose of reducing crime internationally and within the jurisdiction of other states as well as within their own. It is an attractive suggestion, but I do not think it can be sustained, for two reasons. The first may be termed technical: it is simply this, that generally speaking jurisdiction in criminal matters is territorial: para. 192, Arch. 39th edition. Furthermore, any ordinance passed by the legislature of this colony applies only to transactions within the colony: Draper v. Turner⁽⁵⁾. The second reason has more of a practical flavour, and it is that once documents or copies thereof leave this jurisdiction, this court is deprived of effective control. It has not been suggested that the Royal Fiji Police will deliberately abuse any confidence placed in them, nor do I make any such suggestion myself. It is rather a question of principle. Here a balance must be struck between competing aspects of public interest. For it seems to me 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, give assistance to other law enforcement authorities. The courts of this colony cannot uphold the rights of the individual if those rights are threatened or assailed outside the colony. These courts, on the other hand, can give some assistance to the law enforcement authorities in other jurisdictions. Provision has already been made for this; it is to be found in section 75 to section 77B of the Evidence Ordinance. These provisions, perhaps, may not be as full as the Royal Fiji Police would like them to be at the moment. The Royal Fiji Police will first have to obtain sufficient evidence to set proceedings on foot within their own jurisdiction. That is an initial requirement imposed by the legislature only when evidence is sought by a foreign state or court in relation to criminal matters. In civil matters it is sufficient that proceedings are merely contemplated. It seems to me, therefore, that these courts can sufficiently uphold the public interest in helping other authorities without extending the powers of the police under section 50 beyond the confines of this colony.

8. I have not, in the course of this judgment, referred to any duty of confidentiality which might have been placed upon the police by reason of either the fact of seizure or the nature of the documents themselves; I do not think it has any application here. Even if it did I cannot, at the moment, imagine any circumstances which would from that point of view justify the non-disclosure of material which indicated that the directors of a limited company were defrauding its shareholders. For these reasons the plaintiff may have the two declarations in the terms requested.

Representation:

Mr. C. Ching, Q.C., and Mr. H. Poon (Deacons) for the plaintiff.

Mr. G. Fuller and Mr. W. Leung (Legal Department) for the defendant.

(1) (1863) 3 B. & S. 566

(2) [1894] 1 Q.B. 420

(3) [1968] H.K.L.R. 126 at 137

(4) 21 T.L.R. 658

(5) [1964] 3 All E.R. 148 at 150