Ch'Ng Poh v. The Chief Executive of the Hong Kong Special Administrative Region

HCAL000182/2002

HCAL 182/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.182 OF 2002

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Coram: Hon Hartmann J in Court

Dates of Hearing: 23-26 September 2003

Date of Handing Down Judgment: 3 December 2003

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J U D G M E N T

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Introduction

1.In terms of art.48(12) of the Basic Law, the Chief Executive is given the power to pardon persons convicted of criminal offences. In addition to this constitutional prerogative, he possesses the statutory power in terms of s.83P of the Criminal Procedure Ordinance, Cap.221 ('the Ordinance'), to refer the cases of convicted persons who have otherwise exhausted their avenues of appeal to the Court of Appeal for fresh consideration. In order to seek a pardon or a referral, a person who believes himself aggrieved must petition the Chief Executive.

2.The Chief Executive, of course, does not discharge his constitutional and statutory responsibility in isolation. As the holder of a public office, he is assisted by public servants and, while the determination of the merits of a petition is a matter for the Chief Executive alone, he is entitled to look to the collective knowledge and expertise of his public servants and, in so far as he may deem fit, treat it as his own knowledge and expertise. It follows that the advice given to the Chief Executive by those who serve him, and therefore the manner in which that advice is formulated in the first place, will invariably be of considerable influence in assisting the Chief Executive in the discharge of his powers.

3.This application for judicial review looks to the integrity of the process in terms of which the advice of those who serve the Chief Executive comes into being and the manner in which that advice is placed before him. The application arises out of the following history.

4.In July weeks, the applicant 1994, after a trial in the High Court before Keith J (as he then was) and a jury lasting some 11 was convicted of two offencescompany, International . The first offence was that of conspiracy to defraud a publicly listed Housing Development Limitedwas that of publishing a , of a sum of approximately HK$127,000,000. The second offence false statement in terms of which the missing HKannual report. The applicant $127,000,000 was concealed in the company's was sentenced to imprisonment for five years in respect of the first offence and five months in respect of the second, the two sentences to run concurrently.

5.In January 1996, the applicant's appeal against conviction was dismissed by the Court of Appeal although the sentence in respect of the first offence was reduced by one year. The applicant then sought leave to appeal to the Privy Council but that application was dismissed in July 1996. In the result, the applicant served his sentence, being released in February 1998.

6.Two years later, in January 2000, the applicant petitioned the Chief Executive seeking either a pardon or the agreement of the Chief Executive to exercise his powers in terms of s.83P of the Ordinance to refer his case to the Court of Appeal for fresh consideration. In his petition the applicant contended that, subsequent upon the dismissal of his application for leave to appeal to the Privy Council, fresh evidence of considerable significance had come to light. That evidence, said the applicant, if it had been available at the trial, would have resulted in his acquittal or 'at the very least would have materially and substantially increased the prospects of his acquittal'.

7.The petition was referred by the office of the Chief Executive to the Department of Justice for advice. That advice was prepared by officers of the Department's Legal Policy Division, the senior officer tasked with the responsibility being Mr Michael Reid Scott ('Scott'), a Senior Assistant Solicitor General. It took a surprisingly long time for the advice to be prepared. It was not until some two and a half years later that the petition together with the advice prepared by the Legal Policy Division and various other papers were placed before the Chief Executive.

8.The evidence reveals that the documents were placed before the Chief Executive on 9 July 2002. Having considered the matter, the Chief Executive rejected the petition, that rejection being conveyed to the relevant Government authorities on 10 July 2002. The determination itself therefore was made within a period of some 24 hours. Later that month (by letter dated 29 July 2002) the applicant was informed that his petition had been rejected. As is customary, no reasons were given.

9.The applicant commenced his present proceedings for judicial review in October 2002. In those proceedings he has sought a single order; namely, an order of certiorari to bring up and quash the decision of the Chief Executive to reject his petition.

10.In the notice of motion papers, one of the challenges advanced was that, in light of all the circumstances of the case, the rejection of the petition by the Chief Executive was Wednesbury unreasonable; that is, that the rejection was a determination not open to a reasonable decision maker. That challenge, however, was not pursued. Mr Daniel Fung SC, leading counsel for the applicant, emphasised in the course of submissions that what has been challenged by the applicant is solely the lawfulness of the process by which his petition was brought before the Chief Executive for determination. That process, submitted Mr Fung, was fatally flawed and it is that which has vitiated the determination itself.

11.At this juncture it should be observed that a number of challenges made in the applicant's notice of motion were based on the belief that the Chief Executive had not been given sight of the applicant's petition and supporting documents and had only seen the advice submitted to him by the Legal Policy Division when he came to make his determination. That was a mistaken belief. I hasten to add that the mistake was occasioned by those representing the Chief Executive. Nevertheless, the substantive challenges made on the basis that the Chief Executive had been denied access to the petition itself and supporting documents has - with one exception - fallen away.

12.One other challenge was not pursued at the hearing; namely; the failure of the Chief Executive to give reasons why he rejected the petition.

13.However, during the course of his submissions, Mr Fung, for the applicant, raised a new challenge, one that had not been identified as such in the notice of motion. The challenge was to the effect that the advice given to the Chief Executive had been 'one-sided'; that is, unfairly unbalanced against the applicant. That challenge very substantially broadened the scope of the application for judicial review, requiring close analysis of the advice given to the Chief Executive.

14.What then, to my understanding, were the issues raised at the hearing? In general terms, it was submitted by Mr Fung that the process of submitting all relevant papers and advice to the Chief Executive was fatally flawed because it was inherently unfair. That unfairness was diverse, one instance of unfairness merging into another. What had to be considered therefore was the cumulative effect. However, Mr Fung defined certain material instances of unfairness which, in my view, may conveniently be categorised as follows :

(a)	in the face of allegations by the applicant concerning the conduct of a member of the Prosecutions Division of the Department of Justice, a failure by those serving the Chief Executive to seek independent advice for him; that is, advice not emanating from the Department, that failure, in the circumstances, giving rise to an appearance of bias on their part;
(b)	a failure by those serving the Chief Executive to place certain materials of importance submitted by the applicant before the Chief Executive to assist him in his determination;
(c)	a failure by those serving the Chief Executive to afford the applicant the opportunity to assist them by agreeing to face to face consultations or to assist the Chief Executive himself by permitting the applicant to make oral representations to him;
(d)	a failure by those serving the Chief Executive to render fair and balanced advice.

15.As to the overriding importance of ensuring that the applicant's petition was at all times subject to procedural fairness, Mr Fung emphasised that history records that mistakes do occur in criminal proceedings, both at first instance and on appeal. Petitions of the kind reviewed in this judgment are therefore 'the last chance' given to a person who believes he has been unjustly convicted. They must therefore be subject to the fullest procedural rigour. Citing B.V. Harris, Judicial Review of the Prerogative of Mercy, Public Law 1991, 386 at 407, Mr Fung said that it was important therefore that the Chief Executive's decision-making took place on the basis of complete and accurate information, and that he had full access to the applicant's view of all matters in contention.

16.Mr Fung made reference to Lewis and Others v. Attorney General of Jamaica [2001] 2 AL 50 in which Lord Slynn, giving the judgment of the Privy Council, cited with approval the dicta of Fitzpatrick JA in Yassin v. Attorney General of Guyana (unreported) 30 August 1996 :

" In this case justiciability concerning the exercise of the prerogative of mercy applies not to the decision itself but to the manner in which it is reached. It does not involve telling the head of state whether or not to commute. And where the principles of natural justice are not observed in the course of the processes leading to its exercise, which processes are laid down by the Constitution, surely the court has a duty to intervene, as the manner in which it is exercised may pollute the decision itself." [my emphasis]

Reliance by the Chief Executive on advisors

17.As I have indicated earlier, the Chief Executive must in practice look to the collective knowledge, experience and expertise of those public officers who are best positioned to advise him. This has long been recognised by the courts. In the 1914 House of Lords judgment in Local Government Board v. Arlidge [1915] AC 120, at 133, Viscount Haldane LC observed that a minister in government -

" ... is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff."

18.Nearer to the present day, in Bushell v. Secretary of State for the Environment [1981] AC 75, at 95, Lord Diplock said :

" To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise."

19.At the time when the applicant submitted his petition, Hong Kong did not have a ministerial system as that system is understood in the United Kingdom. But it must be the case, I believe, that the principle stated by Lord Diplock in Bushell has at all times had equal application in Hong Kong. In Kaisilk Development Ltd v. Secretary for Planning, Environment and Lands (unreported) HCAL 148/1999, Cheung J (as he then was) said the following :

" Hong Kong does not have the ministerial system of government. However, in my view the Secretary is clearly entitled to rely on the collective knowledge, experience and expertise of the government officials serving directly or indirectly under his Bureau."

20.In any event, the office of the Chief Executive is an elected office : see art.45 of the Basic Law. Fundamentally therefore the manner in which he attains office is comparable to the manner in which a minister attains office in the United Kingdom; that is, by a form of election rather than by working up through the ranks of public service and being appointed to the post. Equally important, in my view, is the fact that the Chief Executive may only hold office for a limited period of time : see art.46 of the Basic Law. He is unable therefore by dint of long experience in his office to acquire the depth of knowledge and expertise in all areas of public service that those who serve him will have been able, in their respective spheres, to have acquired. In short, in my view, Lord Diplock's observations in Bushell must apply to decisions made by the Chief Executive. The collective knowledge, technical as well as factual, of the public officers who are called to serve him is to be treated as the Chief Executive's own knowledge and expertise.

Who determines 'the process' by which the Chief Executive is advised?

21.I will turn shortly to a consideration of art.48(12) of the Basic Law and s.83P of the Ordinance. At this juncture, however, it suffices to record that neither the Basic Law nor the Ordinance dictates the procedure to be adopted by the Chief Executive in discharging his responsibilities under those two instruments. That being the case, the authorities are unambiguous in saying that it must rest with the decision maker himself; in this case, the Chief Executive, to determine the most appropriate procedure. In respect of the Chief Executive, that determination in practice is delegated to those given the task of advising him. The procedure, of course, must be fair. The concept of fairness is not written in stone; it is a flexible, changing concept dependent on the context in which it is exercised. The seminal description, in my view, was given by Lord Mustill in R v. Home Secretary, ex parte Doody [1994] 1 AC 531, at 560, when he spoke of the concept in its general sense :

" What does fairness required in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

22.But if it is for the decision maker to determine the most appropriate procedure, one which adheres to the principles of fairness, it cannot be the case that the process chosen can be struck down as being unfair simply because, in the view of a petitioner, a process that is more fair to him should have been chosen. What must be demonstrated is that, viewed objectively, the process chosen was in fact unfair. In this regard, I return again to the words of Lord Mustill in Doody (at 560 and 561) :

" ... the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."

The core issue therefore in the present case may be expressed in the question : has the applicant shown that the procedures adopted in bringing his petition before the Chief Executive, judged objectively, were not simply capable of being more fair but were actually unfair?

The exercise by the Chief Executive of his powers under s.83P of the Ordinance

23.S.83P of the Ordinance reads as follows :

" (1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either -

(a)	refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or
(b)	if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.

(2) A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application." [my emphasis]

24.On the basis, as in the present case, that a referral is sought because new evidence has come to light, the issue to be determined by the Chief Executive, he being the decision maker, is whether the new evidence could reasonably cause the Court of Appeal to regard the existing conviction as unsafe. This test was laid down in R v. Home Secretary, ex parte Hickey (No.2) [1995] 1 WLR 734 in respect of s.17 of the English Criminal Appeal Act 1968 which is identical to s.83P of the Ordinance. In my judgment, it also lays down the correct test for the exercise of his powers by the Chief Executive under the Hong Kong provision. In stating the test, Simon Brown LJ said the following :

" Provided only and always that there indeed exists substantial new evidence or other considerations in the case and that he will not, therefore, be inviting the court merely to re-examine essentially the selfsame case as it will already have rejected, the Secretary of State should to my mind ask himself this question: could the new material reasonably cause the Court of Appeal to regard the verdict as unsafe? If it could, then I would expect him without more ado to refer the case for hearing as an appeal. This surely is the policy of the legislation: any other approach risks the executive usurping rather than promoting the function of the court."

25.In determining whether a case should be referred to the Court of Appeal pursuant to s.83P of the Ordinance, the Chief Executive exercises a specific statutory power, albeit one that may perhaps, if a reference is made pursuant to s.s.(1)(b), be part of the exercise of the prerogative of mercy and which may in a more general sense have been placed with him because it has been seen by the legislature as analogous to the exercise of that prerogative. As the exercise of a statutory power, however, it seems to me that it must be subject to review by this Court, not in respect of its correctness but in respect of its legality. Whether the Chief Executive is subject to the same powers of review in the exercise of the prerogative of mercy in terms of art.48(12) is, however, not so clear cut.

The prerogative of mercy

26.Prior to the change of sovereignty, the prerogative of mercy was exercised on behalf of the monarch by successive Governors, their delegated power being contained in the Letters Patent. Upon the change of sovereignty, the Basic Law gave to the Chief Executive the power to pardon persons or commute their sentences. That power is a prerogative power; namely, a power vested solely in the Chief Executive to be exercised by him as an executive act. Art.48(12) of the Basic Law reads :

" The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

...

(12)	To pardon persons convicted of criminal offences or commute their penalties; and"

27.On behalf of the respondent, Mr Yue submitted that the power vested in the Chief Executive under art.48(12) is in all its essentials the same prerogative power exercised in Hong Kong before 1 July 1997. As such, said Mr Yue, the common law pertaining to the exercise of the royal prerogative as at the change of sovereignty is also, in the absence of any consideration of the matter by the Hong Kong courts since the change, the law pertaining to art.48(12). That law, he said, is contained in two decisions of the Privy Council; first, de Freitas v. Benny [1976] AC 239 and, second, Reckley v. Minister of Public Safety and Immigration (No.2) [1996] AC 527. Those two judgments, said Mr Yue, state clearly that the exercise of the prerogative of mercy is not susceptible to judicial review. That being the case, the applicant in the present case has no jurisdiction to seek a judicial review of either the process by which the Chief Executive came to his decision in terms of art.48(12) or the decision itself.

28.In de Freitas v. Benny, Lord Diplock said the following (at 247) :

" Section 70(1) of the Constitution makes it clear that the prerogative of mercy in Trinidad and Tobago is of the same legal nature as the royal prerogative of mercy in England. It is exercised by the Governor-General but 'in Her Majesty's name and on Her Majesty's behalf.' "

He then stated the law in the following terms :

" Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy."

29.In Reckley v. Minister of Public Safety and Immigration the Privy Council adhered to the same principle. It was recognised that, in terms of the Bahamian Constitution, the prerogative of mercy was of the same legal nature as the royal prerogative in England. Arts.90, 91 and 92 of that Constitution provide that the Governor-General may in Her Majesty's name grant pardons or commute sentences, the powers to be exercised in accordance with the advice of a designated minister who must consult with an advisory committee. Lord Goff, giving the judgment of the Privy Council, said (at 540) :

" But the actual exercise by the designated minister of his discretion in death sentence cases is ... concerned with a regime, automatically applicable, under which the designated minister, having consulted with the advisory committee, decides, in the exercise of his own personal discretion, whether to advise the Governor-General that the law should or should not take its course. Of its very nature the minister's discretion, if exercised in favour of the condemned man, will involve a departure from the law. Such a decision is taken as an act of mercy or, as it used to be said, as an act of grace. As Lord Diplock said in de Freitas v. Benny [1976] A.C. 239, 247G : 'Mercy is not the subject of legal rights. It begins where legal rights end.' "

30.Both de Freitas v. Benny and Reckley v. Minister of Public Safety and Immigration were, in fact, related to procedural issues. In the first case, it was held that the appellant had no legal right to have certain materials disclosed to him. In the second case, it was also held that the appellant had no right to disclosure nor in addition the right to make representations to the committee which advised the designated minister. In both cases, the rejections flowed from the nature of the prerogative of mercy exercised in those jurisdictions.

31.In 2001, however, in Lewis and Others v. Attorney General of Jamaica [2001] 2 AC 50, the Privy Council did not follow its earlier decisions. Instead (Lord Hoffmann dissenting) it held that, although there was no legal right to mercy and the merits of a decision made in exercise of the prerogative were not reviewable by the courts, the procedures adopted had to be fair and those procedures were amenable to review. In speaking of fair procedure, Lord Slynn said (at 76) :

" On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done. Material may be put before the body by persons palpably biased against the convicted man or which is demonstrably false or which is genuinely mistaken but capable of correction. Information may be available which by error of counsel or honest forgetfulness by the condemned man has not been brought out before. Similarly if it is said that the opinion of the Jamaican Privy Council is taken in an arbitrary or perverse way - on the throw of a dice or on the basis of a convicted man's hairstyle - or is otherwise arrived at in an improper, unreasonable way, the court should prima facie be able to investigate."

32.Lewis v. Attorney General of Jamaica was decided after the change of sovereignty. Accordingly, said Mr Yue, while, in terms of art.84 of the Basic Law, it may constitute a persuasive authority, it is not binding and cannot take precedence over binding authority. In Hong Kong, said Mr Yue, the applicable principles therefore remain those principles stated in de Freitas v. Benny and Reckley v. Minister of Public Safety and Immigration.

33.However, in the cases relied upon by Mr Yue the exercise of the prerogative of mercy in the two Caribbean jurisdictions was not simply based upon the pre-existing exercise of the royal prerogative, it was and remained the exercise of that same prerogative, the Governor-General in each instance acting under the delegated authority of the monarch. That, in my opinion, is an important distinguishing factor between those cases and the position now in Hong Kong.

34.In Hong Kong, the power vested in the Chief Executive pursuant to art.48(12) is to be read within the context of the Basic Law itself, our primary document of constitution. It is the Basic Law which gives the power and fashions its nature. Art.11 of the Law (which appears in Chapter 1 under the heading 'General Principles') speaks to this in the following terms :

" In accordance with Article 31 of the Constitution of the People's Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law."

35.Art.11 defines the basis of executive power. That power is to be found not by looking to the history of the royal prerogative but by looking at the Basic Law itself, a Law that protects the fundamental freedoms of all residents. In my judgment, it is evident that the Basic Law, while giving the Chief Executive certain prerogative powers, does not seek to place him above the law; his powers are defined by and therefore constrained by the Basic Law. The Chief Executive is a creature of the Basic Law and he enjoys no powers, no rights or privileges which are not afforded to him by that Law. That being the case, I do not see that his powers exercised pursuant to art.48(12) can be classified as purely personal acts of grace, a species of private acts carried out by the official who, in terms of art.43, is the head of the Hong Kong Special Administrative Region. To the contrary, when the Chief Executive acts pursuant to art.48(12), in my judgment, he acts within the greater constitutional scheme, a scheme which looks to the protection of the rights of all residents according to law. In 1927, in Biddle v. Perovich 274 US 480, 486 (1927) the American jurist, Holmes J, expressed it thus :

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." [my emphasis]

36.In South Africa, the Constitutional Court has come to essentially the same view. In President of the Republic of South Africa and Another v. Hugo 1997(6) BCLR 708 (CC), at 723, Goldstone J said that the approach of the English courts was not open to South Africa. The Constitution, he said -

"... obliges us to test impugned action by any organ of state against the discipline of the interim Constitution and, in particular, the Bill of Rights. That is a fundamental incidence of the constitutional state which is envisaged in the Preamble to the interim Constitution, namely:

'... a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms; ...'

In my view, it would be contrary to that promise if the exercise of presidential power is above the interim Constitution and is not subject to the discipline of the Bill of Rights."

37.In my judgment, it would offend the Basic Law - and do so manifestly - if, for example, those advising the Chief Executive in respect of his discretion under art.48(12) were able with impunity to subvert the honesty of that advice on the basis of racial, sexual or religious grounds or were able with impunity to refuse to put before the Chief Executive evidential material which did not for whatever reason suit their private ends. If such was the case, the Chief Executive would not, in making a determination on the basis advice, be discharging his obligations in terms of the Basic Law. That is because the Basic Law, as a document of constitution that safeguards the rights and freedoms of all residents in accordance with law (see : art.4), does not permit such pollution of lawful process, executive or otherwise.

38.In the circumstances, I am satisfied that in terms of the Basic Law, while the merits of any decision made by the Chief Executive pursuant to s.48(12) are not subject to the review of the courts, the lawfulness of the process by which such a decision is made is open to review. Accordingly, the applicant's challenge in respect of art.48(12) is not vitiated by a lack of jurisdiction.

39.This brings me to a consideration of the substantive challenges pursued by the applicant at the hearing. Those challenges, however, cannot be fully understood without first looking in more detail to the issues involved in the criminal proceedings brought against the applicant.

The issues at trial and on appeal

40.The applicant, as I have said, was convicted in July 1994 of two offences : conspiracy to defraud a publicly listed company, International Housing Development Limited ('IHD'), of some HK$127,000,000 and publishing a false statement in order to conceal the loss in IHD's annual report. The factual background to these matters is complex. In seeking a suitable summary, I can do no better than refer to that given by the Court of Appeal in its judgment of 15 January 1996.

41.In that judgment, Mayo JA (as he then was), giving the judgment of the court, set out the background in the following terms :

" The appellant, a Malaysian businessman, wanted to buy a controlling interest in a public company. He met C.H. Low, an alleged co-conspirator and a chief witness at the trial. C.H. Low held a majority interest in IHD - a Hong Kong listed company - which he was anxious to realise. He saw this as an opportunity to sell to the appellant but the appellant did not have the means to pay for the shares. The method adopted to fund the appellant's purchase of the shares is central to the case.

C.H. Low's 77m shares in IHD (a 60% holding) were held by Territorial Limited as his nominee. The appellant agreed that Join Park Ltd (of which he held 74%), would buy the shares for $232,540,000. Of this, $109m was borrowed by Join Park from the Ka Wah Bank (KWB) but the balance of $123.540m had to be found elsewhere." [my emphasis]

42.As to the conspiracy, Mayo JA summarised it as follows :

" The balance was found by defrauding IHD of $127m which was used to pay Territorial Ltd for C.H. Low's shares which were transferred to Join Park after completion of the agreement on Saturday 17 August 1985. The transaction was achieved by 'the circle' of cheques.

During prior negotiations the appellant discovered that two C.H. Low companies owed IHD a total of $127m including interest. Naturally, he required repayment before completion and it was agreed that Territorial Ltd would repay the money to IHD on behalf of the debtor companies.

At completion, Wanfong Nominees repaid the $127m on behalf of Territorial Ltd into IHD's account by three cashier orders. Immediately afterwards, IHD remitted the same sum in 8 cheques of odd amounts to its subsidiary, Dixon Ltd. By 8 cheques of different odd amounts Dixon remitted it to Wanfong Nominees who received it on behalf of Territorial Ltd. It was applied to pay the balance owing on the shares. These transactions took place through accounts which each party held with KWB on Saturday 17 August 1985."

43.Mayo JA spoke of those who admitted they had participated in the conspiracy by saying :

" C.H. Low and his brothers bought a substantial interest in KWB in 1975. Later, Victor Tan joined the Bank. C.H. Low and Victor Tan brought Doreen Yong, a chartered company secretary, from Kuala Lumpur to work in the Bank. She later became C.H. Low's mistress and carried out his instructions in relation to his, and Victor Tan's, corrupt running of the Bank and numerous other companies.

Quek Teck Huat was the chairman of IHD at the time of these transactions and a close business associate of C.H. Low and Victor Tan.

At trial, C.H. Low, Doreen Yong and Quek Teck Huat gave evidence as accomplices with immunity. They each admitted that they conspired with Victor Tan to defraud IHD of the $127m by means of the circle of cheques. They also testified that the appellant had full knowledge of the fraud, was a party to it and a beneficiary of it."

44.Mayo JA succinctly stated the central issue at trial as follows :

" The central issue before the jury was whether the appellant knew about the said circle of cheques and consequently was a party to the fraud on IHD."

45.In summarising the prosecution case, Mayo JA said :

" The prosecution case was that initially the conspirators agreed that the $127m would be repaid by C.H. Low's companies to IHD but that it would then be used by the appellant to pay the balance of the purchase price at completion. However, as the law forbade a company from financing the purchase of its own shares, the true nature of the transaction was concealed by the circle of cheques with the appellant's full knowledge and consent.

IHD books recorded the repayment of the debts of $127m, followed by loans totalling $127m to its subsidiary Dixon Ltd. Dixon Ltd recorded the receipt of these sums and the payment out of different sums in 8 cheques also totalling $127m for 'investments'. According to C.H. Low the professed intention was that later the appellant would transfer his assets into IHD (via Dixon Ltd) as if they were the investments purchased by Dixon so that when the auditors came to examine the books, the true nature of the transaction would be hidden from them."

46.As for the defence case, Mayo JA said :

" The appellant denies that he knew of, or agreed to, the transaction. He agrees that he was unable to fund the purchase of the shares from his own resources. He contends that he wanted to borrow the full price from the Bank but C.H. Low told him that the maximum the Bank would lend was $125m. He knew therefore that he had to find the balance elsewhere. C.H. Low was desperate to sell. So he proposed, and the appellant accepted, an arrangement whereby Territorial Ltd would transfer the shares and allow the appellant to pay the balance of the purchase price later. For his part the appellant would later sell assets to IHD and thereby raise sufficient to pay that balance to Territorial. This was referred to as the vendor financing agreement.

At the time he believed this arrangement had been put into effect and he knew nothing of the fraud on IHD until he discovered shortly before 26 September 1985 that the money was missing."

47.Mayo JA recorded that the main prosecution evidence had been given by the accomplices; that is, by C.H. Low, Doreen Yong and Quek Tech Huat. He further recorded that their testimony had been 'uncorroborated and given under immunities'.

48.Of importance in respect of the issues raised in the present case, Mayo JA went on to record that the 'credibility and honesty' of the two principle accomplices, C.H. Low and Doreen Yong, had been attacked at trial :

" A wide ranging - and apparently successful - attack was made upon the credibility and honesty of C.H. Low and Yong. With less success (it would seem) a similar attack was made upon Quek. The defence relied not only upon C.H. Low's participation in the massively corrupt and dishonest running of KWB but also upon his anxiety together with his mistress Yong to assist the authorities in Hong Kong in order to obtain leniency for himself and immunity for Yong to enable her to return from Taiwan with their child. In many instances the evidence of the accomplices was inconsistent one with that of another, and with earlier statements each had made." [my emphasis]

49.At the trial, in directing the jury, Keith J had left the jury in no doubt as to the defence contention that the accomplice, C.H. Low, had given perjured testimony in order to negotiate the best possible deal with the prosecuting authorities in respect of his own criminal culpability. Central to C.H. Low's machinations had been his willingness to offer up the applicant, an innocent man, as a sacrificial victim :

" C H Low, they say, was looking for a deal ... C H Low obviously wanted to face trial on as few charges as possible and he wanted his sentence to be as light as it possibly could be. The defence say that the bargaining chip which he decided to use was the information he could give the authorities in Hong Kong ... That, say the defence, was why C H Low gave them Mr Ch'ng [the applicant]. If it meant framing an innocent man, well that is one of the things that you have got to do if you are going to save your own skin."

50.It emerged during the trial that, in order to obtain the best deal possible with the Hong Kong prosecuting authorities, C.H. Low had instructed a barrister named Eddie Soh to prepare a detailed dossier exposing the applicant's 'true role' in the acquisition of the shares of IHD. The information in that dossier had been given to Eddie Soh by C.H. Low himself. That dossier was before the jury at trial.

51.During the course of the trial, evidence had been given by the accomplices that a meeting had been held the day before the scheduled completion of the sale and purchase agreement so that the conspirators could rehearse what had to be done on the day. C.H. Low, Doreen Yong and Quek testified that the applicant had been present at this rehearsal meeting and had taken part in it. In his petition to the Chief Executive, the applicant referred to the importance of this rehearsal meeting by saying that it constituted 'the crux of the prosecution case'.

52.The rehearsal meeting was clearly of significance. In his directions to the jury, Keith J said :

" That is why the Crown say that the events of 16 August - the day before completion - are so important because the Crown say that those events show that Mr Ch'ng knew about the round robin flow of funds and knew exactly what it involved."

53.Keith J directed the jury as to the inconsistent evidence given by the accomplice witnesses. Indeed, in looking to the testimony of Doreen Yong concerning the meeting he said that her manifest inconsistencies were such that her evidence in respect of the meeting should be ignored entirely.

54.The dossier prepared by the barrister, Eddie Soh, on the instructions of C.H. Low did not mention the rehearsal meeting, an omission that would have been known to the defence.

55.The applicant, of course, has at all times denied being at any rehearsal meeting, the suggestion being that it was an invention on the part of the accomplice witnesses. Keith J reminded the jury of the defence contention that there was simply no need for him to have been at any such meeting :

"It is agreed that if Mr Ch'ng had been in on the scheme, the only part he had to play at the completion meeting was to make sure that Doreen Yong got the three cashier orders back so that she could then take them back to the Bank. Mr Corrigan says that if that was all that Mr Ch'ng had to do, there would be no need for him to have gone to a dress rehearsal on the 16th of August. He would have known about the one thing that he had to do from his meeting with C.H. Low a few days earlier when, according to the Crown, C.H. Low had told him how the scheme was to work."

56.During the course of submissions made to me by Mr Fung on behalf of the applicant considerable store was set by the crucial importance of the rehearsal meeting, the implication being that without such evidence the prosecution case at trial would have faced profound difficulties. The Court of Appeal, however, in reviewing the evidence given at trial, spoke not only of the accomplice evidence but of the circumstantial evidence. In this respect, Mayo JA said :

" ... it is necessary to note that the prosecution case did not rest entirely upon the accomplices. There was no corroboration but in four broad categories there was significant circumstantial support for the prosecution case."

He then turned to consider that circumstantial evidence in detail and concluded by saying :

" The jury were properly directed upon the law and the issues were clearly left to the jury for their decision. It was supported by considerable circumstantial evidence and it was open to them to accept the prosecution evidence. On this evidence the case was overwhelming. We have no hesitation in dismissing the appeal against conviction."

57.At this juncture it should be recorded that in February 2001 Yuen J (as she then was) handed down judgment in respect of an action brought against the applicant by IHD seeking 'damages for conspiracy and/or conversion and/or breach of fiduciary duty', the claim arising out of the same conspiracy for which the applicant had been convicted in 1995. In her judgment, Yuen J had to consider much of the evidence canvassed in the criminal trial including the disputed factual issue of whether the applicant had attended the rehearsal meeting. Evidence of this meeting appears to have been given at the civil trial by Quek Teck Huat. In respect of the evidence available to her concerning that meeting, Yuen J said :

" In this respect, Quek's evidence of a pre-completion meeting on 16 August 1985, at which the exchange of cheques was rehearsed, is the most direct evidence of the Defendant's involvement, but in my view, the evidence against the Defendant is strong enough even without this allegation.

She continued by saying :

" ... I find that even disregarding Quek's allegation of the rehearsal meeting, there is more than sufficient evidence, though of a less direct nature, in the form of the contemporaneous documents and the Defendant's actions to show that the Defendant was indeed implicated in the conspiracy."

58.I accept, of course, that Yuen J was considering a civil claim and not a criminal charge. The burden of proof was therefore different and no doubt much of the evidence was different. However, on the evidence that was before her, Yuen J came to the same conclusion as the Court of Appeal; namely, that she too found the circumstantial evidence to be convincing.

59.In his notice of motion, the applicant contended that mention of the civil judgment of Yuen J in the advice given to the Chief Executive invited him to take into account an irrelevant consideration. The complaint was expressed thus :

" By taking into account the judgment of the civil court which is irrelevant to the determination of the Petition, the Chief Executive has allowed himself to be misled and has consequently failed to properly exercise his discretion."

60.This complaint, however, ignores the fact that it was the applicant himself who made written submissions relying upon certain evidence adduced at the civil trial. The evidence related to whether, as a result of the conspiracy, IHD had, in fact, suffered loss and whether the applicant had been the Chief Executive officer of IHD at a time of considerable relevance.

61.More importantly, in my view, it must be open to the Chief Executive when considering a pardon to look to all relevant matters. Pardons are not to be given lightly. The materials supporting them are not to be considered within artificial parameters. Equally, all relevant evidence must be considered before the step is taken of referring a matter to the Court of Appeal for fresh consideration. The findings of Yuen J, while they did not assist the applicant, were clearly relevant. The applicant's complaint in this regard had no merit.

The substantive challenges

62.I move now to consider the substantive challenges - four in number - made by the applicant, all relating to the fairness of the process in terms of which the Chief Executive came to his determination.

(a) Failure to obtain independent advice

63.It self-evident that whenever a petition is presented to the Chief Executive which requires him to consider the exercise of his prerogative of mercy, it is imperative that any advice he receives in respect of the merits of the petition be impartial. On behalf of the applicant, it was contended, however, that in the present case the impartiality of those responsible for advising the Chief Executive was compromised. That compromise, it was submitted, constituted a substantial procedural unfairness.

64.The compromise, said Mr Fung, arose out the fact that in his petition the applicant made allegations that a still serving member of the Department of Justice had, albeit unwittingly and without any suggestion of bad faith, undermined the successful prosecution of his appeal to the Privy Council against his criminal convictions by filing an affidavit that was subsequently demonstrated to contain 'unfair and misleading' evidence. An allegation of that nature made against a member of the Department of Justice must have resulted in a real danger that advice concerning the allegation given by other members of the Department to the Chief Executive would not be entirely impartial. Despite this, said Mr Fung, no independent advice was sought; that is, advice from an outside party. In such circumstance, so it was contended, there must be a real danger of unconscious bias even if no actual bias can be proved.

65.As to the principle that advice should be independent and impartial, Mr Fung cited observations, made obiter dicta, of Cooke P in the New Zealand case of Burt v. Governor-General [1992] 3 NZLR 672 at 681, in which the President, with reference to the practice in that jurisdiction, said :

" ... it is obvious that allegations in a petition, unless patently wrong, should be adequately and independently investigated by someone not associated with the prosecution: the Court could at least check that this has happened. Independent investigation is a common practice in New Zealand, the services of independent lawyers of standing, including retired Judges and senior barristers, being obtained from time to time ..."

66.The test to be applied when considering allegations of apparent bias is laid down in R v. Cough [1993] AC 646. This was adopted as the correct test for Hong Kong by the Privy Council in Panel on Takeovers and Mergers v. Cheng Kai Man, William [1995] 3 HKC 517. The test, in my view, has been well stated by the English Court of Appeal in R v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 in which Simon Brown LJ derived the following essential propositions from Cough :

" The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By 'real' is meant not without substance. A real danger clearly involves more than a minimal risk, less than a probability. One could, I think, as well speak of a real risk or a real possibility.

Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take 'unfairly regarded with disfavour' to mean 'was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'.

A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.

It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias.

...

It is not necessary for the applicants to demonstrate a real possibility that the ... decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly."

67.In order to determine a challenge of apparent bias, Simon Brown LJ said that a court must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion. In this regard, the court 'personifies the reasonable man'. How then did the challenge arise in the present case?

68.When the applicant appealed his convictions to the Court of Appeal, he sought leave pursuant to s.83V of the Criminal Procedure Ordinance, Cap.221, to adduce further evidence. Part of that evidence was contained in an affidavit sworn by a convicted criminal named Warwick Reid ('Reid'), a former prosecutor in the Attorney General's chambers, who had spent time in prison with C.H. Low, the principal accomplice witness who had testified for the prosecution at the applicant's trial. According to Reid, C.H. Low had told him that he had deliberately lied when he testified in order to secure the wrongful conviction of the applicant. In particular, Reid claimed that C.H. Low had told him that the applicant had been wholly unaware of the criminal conspiracy hatched by himself and his cohorts involving the 'circle of cheques'. C.H. Low's motive, said Reid, had been a hatred of the applicant who had initiated legal proceedings against him thus precipitating his fall from grace.

69.The Court of Appeal refused the application to admit Reid's evidence, saying, among other things, that, having regard to all the surrounding circumstances, Reid's evidence was not 'well credible of belief'. Mayo JA (as he then was) observed :

" Not much credit can be given to Reid as a witness. He is a self confessed criminal of the worst type. He grossly abused the trust reposed in him as a senior member of the Attorney General's Chambers. There is every reason to be suspicious of him as a witness.

There is also every reason to be suspicious of the circumstances under which his affidavit came to be provided which remains unexplained. In particular, no satisfactory explanation has been forthcoming as to why it was thought to be desirable to make inquiries of Reid after the appellant was convicted rather than when the defence was being prepared. While it is true that those advising the appellant would have had no idea what evidence Reid would be able to give it is strange that Reid should have acted in the way he did. If he is to be believed he was prepared to sit back and do nothing while according to his testimony an injustice was being perpetrated. However as soon as he is approached after the trial he is prepared to come forward and give the most detailed evidence. He did not however commit himself to swearing an affidavit until some months later when he had returned to New Zealand when clearly it is much more difficult for the Prosecution to investigate the various matters he raises. So far as the contents of Reid's affidavit is concerned it has to be borne in mind that Reid as a consequence of his official duties had a detailed knowledge of the background of the events referred to."

70.The applicant sought leave to appeal to the Privy Council. One of his grounds was that the Court of Appeal had been wrong to refuse to admit Reid's evidence. In response, the prosecuting authorities filed an affidavit sworn by John Reading SC ('Reading'), at the time a Deputy Principal Crown Counsel - a directorate grade officer - in the successor to the Department of Justice, the Attorney General's Chambers.

71.It is the applicant's case that this affidavit was unfair and misleading, a fact only discovered after the affidavit had been employed by the prosecuting authorities to successful resist the applicant's leave application. In his petition, the applicant spoke of a material consequence of the use of this affidavit against him in the following terms :

"... the Prosecution's acceptance that Your Petitioner was unaware of the falsity of Reid's affidavit was only forthcoming after the Privy Council had refused leave to appeal and it was too late to rectify the prejudice caused. Had the Privy Council been assured by the Prosecution that Your Petitioner was unaware of the falsity of the affidavit, such assurance would have nullified the prejudice caused to Your Petitioner by a false affidavit having been unwittingly produced on his behalf, and would have materially affected the outcome of Your Petitioner's application for leave to appeal to the Privy Council."

72.In the advice given to the Chief Executive, the following comments were made concerning the allegation of the applicant that Reading's affidavit had dealt him what the applicant described as a gross unfairness :

"The purpose of Mr Reading's affidavit was to inform the Privy council that Reid's affidavit was unreliable, having regard to the circumstances in which it was produced, in particular the fact the Reid was paid a large sum of money for making it. Reid's affidavit was in fact false and this is admitted in the Petition. The prosecution disputed Reid's affidavit in the Court of Appeal which expressly found that Reid was not a credible witness and that his affidavit was not well capable of belief. Despite this, the Petitioner chose to rely on Reid's affidavit in the Privy Council.

It is unlikely that the Privy Council would have taken a prejudiced view of the Petitioner. On the contrary, the Privy Council should be trusted to have been able to decide the leave application strictly on the basis of the admissible evidence placed before it."

73.What then of Reading's affidavit? In that affidavit, it was said that Reid, who had gone to New Zealand after serving his prison sentence, had been arrested in that country for the purpose of his surrender to Hong Kong to face a number of criminal offences related to the swearing of his affidavit. The offences included conspiracies to commit perjury, to pervert the course of public justice and to use a false affidavit. In respect of those offences, Reid had been accused jointly with a man named T.K. Li.

74.Reading set out a summary of the evidence obtained by the prosecuting authorities, stating (in brackets) the source of that evidence :

(i)	As to the signing of the affidavit in New Zealand by Reid, Reading said :
		" Reid arrived in New Zealand on 30th November 1994 (immigration records). On the same day TK Li, who I believe to be the half brother of Mrs. Ch'ng Poh and who resides in Vanuatu, also arrived in New Zealand (immigration records). The Crown alleges he brought the affidavit (unsworn) with him" [my emphasis]
	Reading's belief that T.K. Li was the half brother of the applicants wife was incorrect. Although acting as some form of agent for the wife, T.K. Li was not a relative. Reading, of course, only asserted a belief, he did not state a fact.
(ii)	Reading then spoke of a journey taken by Reid to Singapore to meet C.H. Low :
		" On 12th December 1994 Reid travelled to Singapore (immigration records). He met CH Low and explained that he had come into a windfall by swearing an affidavit discrediting CH Low as a witness. He asked CH Low to cooperate by refusing to assist the Independent Commission against Corruption ('ICAC') by returning to Hong Kong to contradict Reid. Reid maintained that CH Low would be paid for this by Ch'ng Poh (CH Low). On 13th December 1994 TK Li met CH Low and Reid in Singapore and a discussion took place as to the amount to be paid to CH Low (CH Low)" [my emphasis]
	Reading's assertion that Reid had told C.H. Low that the applicant would pay him for refusing to co-operate came from C.H. Low himself who was co-operating with the Hong Kong authorities.
(iii)	Reading recorded that C.H. Low denied the truthfulness of Reid's affidavit.
(iv)	Reading said that Reid and C.H. Low then travelled to Taiwan, saying :
		" Reid's travel to Singapore and Taipei was paid by Ch'ng Poh (CH Low)."
	The source of this allegation was again C.H. Low who must have been told this either by Reid or T.K. Li.
(v)	In respect of a payment made to Reid in consideration for his signing of the affidavit, Reading said :
		" On 1st December 1994 an account was opened in the name of TK Li at ANZ Bank in Tauranga, New Zealand into which two deposits were made in the sums of HK$4m and HK$881,016. These deposits, which together amount to slightly more that NZ$1m, have been traced back to Mrs. Ch'ng Poh and TK Li respectively (banking records). On 2nd December 1994, in New Zealand, Reid introduced TK Li to his accountant Cliff Burmister, to whom TK Li gave 2 cheques totalling NZ$1m with instructions to gift the money to the Reid family. To this end Mr. Burmister established the Grange Trust by Deed dated 5th December 1994. The settlor was TK Li and the trustee Mr. Burmister. The named beneficiaries were Reid, his wife and children (Mr. Burmister and documents provided by him)." [my emphasis]
	Reading then spoke of how the trust moneys had been moved off-shore and how a portion of those moneys had been used by Reid to purchase a business in New Zealand. Reading concluded :
		" A chart showing the alleged flow of funds from Hong Kong (Mrs. Ch'ng Poh and TK Li) to New Zealand (Grange Trust) is annexed hereto marked JRR1."
	It is not disputed that the moneys paid to Reid had, in fact, come from a bank account or accounts in the name of the applicant's wife.

75.As later events revealed - and this is in no way disputed - the affidavit made by Reid was false and he served a period of imprisonment in New Zealand for his criminal conduct in regard to the swearing of that affidavit.

76.As to any knowledge of the falsity of that affidavit on the part of the applicant, at a time after the Privy Council had refused to grant leave to appeal to the applicant, it was formally accepted by the prosecuting authorities that the applicant, who had been serving his prison sentence at all material times, had had no knowledge of the falsity of Reid's affidavit or that money had been paid to him to procure it. But by then, said Mr Fung, the damage was done. The Privy Council had refused leave, that refusal being based in part, so it must be inferred, on the prejudicial effect of Reading's affidavit which, although made in good faith, was nevertheless unfair and misleading. But how was it said to be subject to those deficiencies? In his petition, the applicant protested that -

"The prejudicial effect of Reading's affidavit on the Privy Council's decision whether or not to grant Your Petitioner's leave to appeal thereto was substantial ... In particular the affidavit implied and the Privy Council must have believed that-

(a) Your Petitioner had a hand in procuring Reid's false affidavit, with knowledge of its falsity; and

(b) Your Petitioner paid Reid or knew that Reid had been paid for making the false affidavit."

77.But did Reading's affidavit make any such implications? I accept that the affidavit may be said to leave open the question of whether the applicant knew of the falsity of the affidavit and/or whether payment had been made for it. But that is a very different matter from the implication that he must have possessed the required knowledge of those two matters at the material time. The affidavit was scrupulous in its wording and in giving the source of allegations made. To my understanding, other than the assertion that Reading believed T.K. Li to be a blood relative of the applicant's wife, nothing can be identified in the affidavit as being factually incorrect. As for this single inaccuracy, it is not disputed that T.K. Li did, in fact, work with or for the applicant's wife in dealing with Reid.

78.It is of course correct that on two occasions in Reading's affidavit mention is made of the applicant either acting as or being prepared to act as a paymaster. But in respect of both those matters the source is given as C.H. Low, a man whose character and motives had by then been acknowledged in clear terms by both the judge at first instance and the Court of Appeal, and there is nothing to say that C.H. Low did not make these allegations. Indeed, it transpires that at the material time he was working with Hong Kong investigative authorities.

79.As I have said, the affidavit no doubt left open certain questions as to the degree, if any, of the applicant's knowledge and involvement. That was inevitable. After all, the funds to pay Reid had come from the applicant's wife and T.K. Li had acted as her agent. In addition, the procuring of the affidavit had been for the purpose of advancing the applicant's cause. But as I have also said, leaving a question open (as one perhaps that deserves further investigation by the responsible agencies) is a far cry from drawing the implication that the applicant in his petition contended that the Privy Council must have drawn. An open question is one from which an inference, one way or the other, may not be legitimately be drawn.

80.It is also important, in my judgment, that the matter be looked at in context. Reading's affidavit was not inscribed in some tabloid to be scanned by casual readers uneducated in the rigours of law. It was for consideration by an august body of jurists who, without doubt, may be relied upon not to fall into the error of drawing inferences from a document from which no such inferences may be drawn and doing so in any event for an irrelevant purpose. As I am informed, Reading's affidavit was placed before the Privy Council to assist in respect of the single question of whether the Hong Kong Court of Appeal had been wrong to refuse to adduce the evidence contained in Reid's affidavit. That was the single issue to be decided and it could not in any way be disputed by the time the applicant submitted his petition to the Chief Executive that events had borne out the validity of the rejection of Reid's affidavit. To suggest that somehow, on a collateral basis, the Privy Council must also in some undefined way have used Reading's affidavit to build up a prejudicial image of the applicant, one that would influence their decision to reject his application for leave to appeal, suggests a jurisprudential frailty on the part of the members of the Council that cannot be supported.

81.By way of a postscript, I would add that if there was any danger of the Privy Council drawing incorrect inferences from the Reading affidavit, presumably those representing the applicant in his leave application would have been able to protect his interests.

82.For the reasons given, I am satisfied that, read objectively and in context, the Reading affidavit, which addressed itself to on-going and not concluded proceedings, cannot in any material way be said to be unfair or misleading in the manner suggested by the applicant. That being the case, if the accusations made in respect of Reading's affidavit are wrong - if they have no merit - I do not see how a claim of apparent bias can arise. A bare claim cannot itself be sufficient. Otherwise any claim, even if vexatious, could be used tactically in the knowledge that it must result in the person or body responsible for determining the matter in issue being obliged to abdicate that responsibility. That cannot be right.

83.In any event, I do not see that the position within the Department of Justice of those tasked with advising the Chief Executive can be said to have given rise to a situation in which there was any real risk that they would be pre-disposed against the applicant for reasons unconnected with the merits of his petition. In his affidavit of 20 September 2003, Mr Michael Reid Scott ('Scott'), the officer principally responsible for preparing the advice for the Chief Executive, explained the relevant workings of the Department of Justice in the following manner :

" The Department of Justice, headed by the Secretary for Justice, has 6 divisions, namely, Prosecutions Division, Civil Division, International Law Division, Legal Policy Division, Law Drafting Division and Administration and Development Division. Except for the Administration and Development Division, Law Officers head the other 5 divisions.

The Legal Policy (General) Section of the Legal Policy Division of the Department of Justice is responsible for processing petitions to the Chief Executive and requests for referral under s.83P of the Criminal Procedure Ordinance. The Legal Policy Division is headed by the Solicitor General. I am a member of the Legal Policy Division.

The Prosecutions Division is responsible for the conduct of criminal prosecutions in Hong Kong, including appeals. The Director of Public Prosecutions is the head of the Prosecutions Division. Mr. John Reading is a member of the Prosecutions Division. In the present case the criminal proceedings against the Applicant, including the appeals, were the responsibility of the Prosecutions Division which instructed private counsel on fiat.

It is not and has never been the duty or function of the Legal Policy Division to conduct criminal proceedings. Neither the Solicitor General nor I played any part in the criminal proceedings, including the appeals. Mr. Reading did not play any part in the processing of the petition or in any way advise the Chief Executive in respect of the petition. Mr. Reading was not consulted by me or members of the Legal Policy Division at all in respect of the petition."

84.In essence, therefore, Scott said that the Prosecutions Division and the Legal Policy Division operate independently of each other and that such was the position in the present case. As an affected party, the Prosecutions Division would, of course, have been asked to comment on certain of the allegations made by the applicant but the process of preparing the advice, said Scott, was carried out by persons who had not been associated in any way with the applicant's prosecution.

85.Similar criticism of this dual role of the Department of Justice has arisen in respect of extradition matters in which the Prosecutions Division has traditionally represented the foreign state seeking extradition while, if the judicial process is successfully concluded on behalf of the foreign state, the Legal Policy Division has assisted the Chief Executive to determine whether to exercise his executive discretion to order surrender or refuse it. In Cheng Chui Ping v. The Chief Executive of the HKSAR and the United States of America (unreported) HCAL 1366/2001, I rejected the submission that this 'dual role' resulted in a conflict of interest giving rise to a real risk of bias. I described the challenge raised in that case in the following terms :

" On behalf of the applicant, Mr Bruce has objected to this dual role. In respect of the Chief Executive's process of decision-making, he has said that obtaining advice from the same source as the party seeking to secure the surrender carries with it both the appearance of bias and the significant risk that the advice received will be flawed by actual bias, if only unconscious bias. Mr Bruce has taken no objection to the Chief Executive receiving assistance by way of legal advice; his objection is that the advice is not manifestly seen to be independent.

Mr Bruce sees no significance in the fact that separate divisions of the Department of Justice have represented the United States and advised the Chief Executive. As he expressed it: the divisional structure is a matter of pure administrative convenience, it has no existence in law, it is ephemeral."

86.In adopting the test set down in R v. Cough (supra), as I have done in the present case, I found that no real risk of bias had been shown. In my judgment, it was significant in that case, just as it is in the present, that different divisions within the Department had acted in their respective roles entirely independently of each other; the role of the Prosecutions Division being to pursue a judicial remedy, the role of the Legal Policy Division being to advise in respect of the discharge by the Chief Executive of an administrative responsibility, one mandated in this instance by the Basic Law and statute.

87.I accept that there may be cases where the allegations made against the member of one division are so profound that the independent roles of the divisions within the Department cannot constitute a sufficiently impervious 'China wall' or 'fire wall'. But no allegations of such a profound nature have been made in the present case. The professional and personal integrity of Reading, the maker of the affidavit, has not been impugned in any way nor that of any other member of the Department. At worst, what has been alleged is that an affidavit made in good faith has been shown by subsequent events to be misleading and therefore unfair. But even that allegation, in my view, when considered in context, is without merit.

88.In summary, I am satisfied that there was in the present case no conflict of interest nor any real risk of an injustice having occurred as a result of bias, unconscious or otherwise. In the circumstances, there was no procedural unfairness in not obtaining advice concerning the petition from a source entirely independent of the Department of Justice.

(b) Failure to place materials of importance before the Chief Executive

89.It appears that two documents submitted by the applicant were not physically placed before the Chief Executive when he came to make his determination. Both documents contained lengthy submissions advocating the applicant's cause. This omission, it was submitted, deprived the Chief Executive of relevant material, denied him full and open access to the applicant's case and thereby vitiated the lawfulness of the process in terms of which the Chief Executive came to make his decision.

90.The documents, as I have said, contained lengthy submissions which attempted to persuade the Legal Policy Division to change the nature of its advice. By way of illustration, the second document, a letter addressed to the Department of Justice dated 18 April 2002, speaks to the following effect in its third paragraph :

" In the second paragraph of your letter you say that you are or will be taking into account 'the most recent developments' in the preparation of your advice to the Chief Executive. We take this to be a reference to the Judgment in CACV 513/2001. Kindly confirm this assumption to be correct and, if not, indicate any other recent developments that are being or will be taken into account."

91.The submissions were not, therefore, intended for direct submission to the Chief Executive. They were essentially part of the consultation exercise that took place between the Legal Policy Division and the applicant's legal representatives. As such, was it imperative that the documents themselves be placed before the Chief Executive? I can find no reason in law to come to that conclusion.

92.The responsibility of the Chief Executive, in my opinion, is reflected in the dicta of Lord Diplock in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014, at 1064 and 1065 :

"It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider : see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene M.R., at p. 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?" [my emphasis]

93.It is for the Chief Executive to decide how best he may acquaint himself with all the relevant information to enable him to make his decision. He is not bound to have before him every communication passing between his advisors and those representing a petitioner. In this regard, see, for example, Jeffs v. New Zealand Dairy Production and Marketing Board [1967] AC 555 (PC) in which Viscount Dilhorne said (at 569) :

" In some circumstances it may suffice for the board to have before it and to consider an accurate summary of the relevant evidence and submissions if the summary adequately discloses the evidence and submissions to the board.

Unfortunately no such procedure was followed in this case. The committee was not appointed by the board, nor was it asked by the board to receive evidence for transmission to it. The committee's report did not state what the evidence was and the board reached its decision without consideration of and in ignorance of the evidence.

The board thus failed to hear the interested parties as it was under an obligation to do ..."

94.In my judgment, what is required to ensure fairness is not that all submissions made by a petitioner, whatever their nature or to whom they are addressed, should be physically placed before the Chief Executive but that all submissions of relevance should be accurately reported to him. Often, of course, that may mean that the original submissions themselves must be placed before the Chief Executive but that must not always be the case. It is incumbent upon those who advise the Chief Executive, indeed any decision-maker, to accurately lay the whole story out so that a properly informed decision can be made. Was that done in the present case? In my judgment, on an objective assessment, it was.

95.All the points raised in the two documents were referred to in the lengthy advice placed before the Chief Executive. On my reading, they were accurately recorded. I would mention that, to assist me in the task of cross-referencing, Mr Yue, for the respondent, prepared a detailed table or schedule which was of great assistance.

96.Finally, it should be mentioned that the Chief Executive, if he wished, was able to have access to the two documents as they were listed in a schedule prepared for him.

97.In the circumstances, I am satisfied that the failure, if it can be so described, to physically place the two documents before the Chief Executive did not work an unfairness on the applicant capable of vitiating the process by which his petition was considered.

(c) Rejection of requests for an oral hearing

98.When the applicant's petition was delivered to the offices of the Chief Executive in January 2000, his legal representatives sought the opportunity to make oral representations to those tasked with advising the Chief Executive. In this regard, the letter from the applicant's solicitors (dated 14 January 2000) was to the following effect :

"In view of the complexity of the legal and factual issues involved in this matter, we wish to render every assistance possible to you and your advisors, in particular, the Secretary for Justice and the Solicitor General. In this regard, we respectfully request that Counsel retained to advise on and settle the Petition (Mr. Daniel R. Fung, SC and Mr. Adrian Bell) be permitted to render such assistance by making an oral presentation of the relevant issues to the Secretary for Justice and/or the Solicitor General as may be appropriate and answering any questions and concerns which they or their officers in the Department of Justice may wish to raise on this matter."

99.As I have earlier indicated, members of the Legal Policy Division of the Department of Justice were given the responsibility of preparing an advice for the Chief Executive, the principal officer being Scott. Three months after delivery of the petition, in terms of a letter dated 14 April 2000, the applicant's solicitors asked Scott if an opportunity to make oral representations would be given. By letter dated 19 April 2000, Scott replied :

" Taking into account the requirement for finality in the criminal judicial process and the criminal law on the subject, the practice is that petitions are considered on the papers and not by way of oral hearing (of B.V. Harris 'Judicial Review of the Prerogative of Mercy?' [1991] Public Law 386, 389-390). It is intended that this procedure will be followed in the present case. If it emerged from the consideration of the petition that, arguably, oral submissions should exceptionally be entertained, the question whether to so proceed or not in the circumstances would be considered."

100.Two years later, in or about April 2002, with the petition still under consideration, the applicant changed solicitors. On 18 April of that year, the new solicitors sent a lengthy letter to Scott, concluding the letter by saying :

" Finally, may we reiterate once more on behalf of the Petitioner that we wish to render every assistance to your goodselves in your preparation of appropriate advice to the Chief Executive on this Petition. For that purpose, we would request a meeting where we might orally present our case and answer any queries you have or address any remaining concerns which you might still harbour.

You will no doubt appreciate that this Petition is a matter of the Petitioner clearing his name without seeking recompense from the Hong Kong Government. It is a matter of considerable importance to him, not just for himself, but also for the sake of his children and family. We, therefore, respectfully request an appointment at your earliest convenience."

101.By letter dated 7 June 2002, Scott replied :

" Our view is that the various matters raised in support of the Petition did not warrant an oral presentation according to the criteria specified in our letter dated 19 April 2000."

102.In light of this rejection, the applicant then sought leave for his counsel to make oral representations direct to the Chief Executive when he came to consider the petition. In a letter dated 17 June 2002 addressed to the Chief Executive, the applicant's solicitors said :

" We are given to understand that the Department of Justice has not yet made any recommendation to your Excellency in respect [of the petition]. We are instructed by our senior counsel, Mr. Daniel Fung S.C. that because of the complexity of the matter it will be best presented by an oral presentation before your Excellency.

This complexity is demonstrated by the fact that there had been five different court hearings in the past years, volumes of documents were involved and almost 2 1/2 years has lapsed since our client submitted his Petition."

103.The reply from the office of the Chief Executive, dated 18 June 2002, was to the following effect :

" Your suggestion that, because of the complexity of this matter, it will be best presented by an oral presentation before the Chief Executive has been noted. However, as you may know, it is the established practice that petitions are considered on the papers and not by way of oral hearing. It is not considered that the complexity of this matter justifies any departure from that practice."

104.This refusal to allow any form of oral representations has in the present case resulted in a material unfairness, said Mr Fung. He did not advance the 'doctrinal submission', as he described it, that in all cases where a petition is placed before the Chief Executive, the petitioner must be able, if he wishes, to support his petition with oral representations either to those advising the Chief Executive or the Chief Executive himself. Whether fairness requires that a request for an oral hearing be granted will depend, he accepted, on a number of factors : the applicable statutory framework, the nature of the decision that is to be made and the complexity of the issues. In the present case, said Mr Fung, the complexity of the issues canvassed in the applicant's petition were self-evident. A complicated web of commercial transactions involving a number of different but inter-related companies was made all the more complex by the conflicting interests of the several parties involved and their varying motives for acting in the way they did. To that was to be added the disagreement between the applicant and those advising the Chief Executive as to matters of both fact and law. In light of these interwoven complexities, said Mr Fung, it was simply not possible for those advising the Chief Executive and/or the Chief Executive himself to fully understand the applicant's various contentions without allowing for some process whereby oral, as opposed to written, submissions could be made.

105.It is, of course, the duty of those tasked with advising the Chief Executive in respect of petitions of the kind filed by the applicant to ensure that in the course of their investigations, if necessary, they afford petitioners a reasonable opportunity to make representations. That is no more than an example of what has been called 'fairness in action'. In the present case, the applicant was given the opportunity on two occasions to comment on successive draft advices being prepared for the Chief Executive and on both occasions (by letters dated 22 December 2000 and 18 April 2002) took advantage of those opportunities. In addition, in June 2001, he revised his petition, making further written submissions. No complaint has been made therefore that the applicant was denied the opportunity to make representations or was excluded from any form of consultative process. However, as the cited correspondence makes clear, no opportunity was afforded to make oral representations. Did that refusal constitute a material breach of the rules of procedural fairness? In my judgment, it did not.

106.In respect of administrative or executive enquires, a duty to consult or to receive representations does not, as a general rule, imply a duty to allow face to face consultation or oral representations. In R v. Camden London Borough Council, ex parte Cran (1996) 94 LGR 8, McCullough J said the following :

" I do not accept [the] submission that consultation, by definition, requires dialogue, in the sense of face to face discussion rather than a mere exchange of written material. Except in so far as the method of consultation is prescribed by statute or has been made the subject of legitimate expectation, this must be a matter for the judgment of the person on whom the duty to consult is cast."

107.In the present case, the requests to be allowed to make oral submissions were declined on two grounds. First because it was not the established practice and, second, because, in the opinion of those advising the Chief Executive, the issue of complexity did not of itself warrant oral submissions.

108.As to the question of practice, it is not disputed that neither statute nor the common law requires that a petitioner be given the opportunity to appear in person at any stage of the process of determining his petition. Indeed, it appears to be well established in the United Kingdom that petitions seeking the exercise of the prerogative of mercy are considered on the papers only : see, for example, A.T.H. Smith's article, The Prerogative of Mercy, the Power of Pardon and Criminal Justice, Public Law, 1983, 398 at 431, where it is recorded that the Home Secretary, acting under delegated power, has an unfettered discretion as to the appropriate procedure to be adopted. It is apparent that Hong Kong has adopted the practice of the United Kingdom.

109.However, in administrative enquiries, where technical rules of procedure and evidence play no part, adherence to established practice, while it ensures consistency of approach, cannot exclude the need, when the occasion arises, to alter that practice to accommodate the dictates of fairness. Some flexibility must be inherent in the process. In the present case, however, the applicant was informed by those whose duty it was to decide upon the most appropriate process that, in their opinion, the complexity of the issues did not warrant oral submissions. In my judgment, the rationality of those decisions; that is, their lawfulness, cannot be open to challenge. Yes, the issues were complex. Indeed, under the heading of 'Background', the advice to the Chief Executive begins : "This is an unusually extensive and complex Petition with 39 Annexures contained in 14 box files." But the grounds advanced in the petition were nevertheless limited and were fully explained in the petition, being adequately supported by documentation. Nor is there evidence that I can make out to support any contention that the written grounds were misunderstood.

110.Nor, in my view, can it be said as a matter of principle that complexity alone must warrant an oral hearing. Each case is to be decided according to its own facts. On the face of the correspondence; that is, the letter of 19 April 2000, it is evident, I believe, that if Scott had been of the opinion that an interview with the applicant's representatives would have assisted him, he would have granted one. But, upon consideration of the material, he was clearly of the view that a review of the papers was sufficient. Can that be said to be an irrational decision or one that in the circumstances was unfair? I think not. In R v. Secretary of State for Trade and Industry, ex parte Lonrho Plc [1989] 1 WLR 525, at 535, Lord Keith observed :

" In some cases an oral interview will remove misunderstandings and provide clarification and new information. In the present case there never was excuse or justification for a meeting, let some four meetings ... Lonrho's arguments that early publication would have no adverse effect and that there were overwhelming public interest reasons in favour of early publication could be and were fully set forth and explained in written submissions of inordinate length to which oral representations added nothing." [my emphasis]

111.As to the contention that in appropriate cases the Chief Executive should himself hear oral representations, it must be remembered that, in considering the exercise of the prerogative of mercy, he is exercising a purely discretionary function not a judicial one. He does not sit as a court. He is not constrained by the laws of evidence and, in my judgment, it would be wrong in principle for this court to impose judicial or quasi-judicial procedures and attitudes on what is the essence of an executive act. Nor can the practical ramifications be ignored. What is to be the extent of an oral hearing? Is the petitioner or his counsel only to be heard? What of the prosecuting authorities, are they to be denied the right to be present and, if appropriate, to render assistance? In short, is a hearing to be ex parte or inter partes? If only ex parte, may that not offend the audi alteram partem principle? If oral representations can be made, can a witness also be called, one perhaps whose assertions are contested? If so, can the witness be cross-examined? What emerges is a form of judicial hearing; that at least must be the danger, one that constrains the broad exercise of executive discretion. In McInnes v. Onslow-Fane [1978] 1 WLR 1520, at 1535, Megarry VC warned that 'the concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens'. That, it was said, cannot be in the public interest. I consider that warning to be applicable to the present case.

(d) Failure to render fair and balanced advice

112.On behalf of the applicant, Mr Fung submitted that if independent advice had been obtained there would have been a greater assurance of fairness. As it was, he said, the advice given was 'one-sided'. It was based heavily on prosecution material and the judgment of the Court of Appeal which presumably, by implication at least, was, in the applicant's eyes, lacking in objectivity and fairness. In the result, the lack of balance worked unfairly to the detriment of the applicant.

113.These submissions were not formally made in the applicant's notice of motion papers but arose only in the course of oral argument. I find no substance in them. While perhaps it may be said that in certain instances the advice given to the Chief Executive may have been more sympathetic to the applicant, I fail to see how it can be said that, judged objectively, the advice was actually unfair to him. Those serving the Chief Executive were expected to employ their knowledge and experience of the law; of how evidence was to be viewed in context, whether it amounted to new material or simply a fresh colouring given to material already considered in the judicial process. Such matters demanded an expression of opinion. Those serving the Chief Executive would have failed in the exercise of their wisdom, experience and expertise if they had failed to make any determination.

114.To decide whether advice given is one-sided and therefore unfair requires an objective consideration of the advice as a whole. It is in many respects an intuitive exercise. I have read the advice given in the light of the matters raised in the petition (and other relevant documents) and I am satisfied that it is a fair advice. I do not intend to go through each and all of the criticisms raised. Many, it seems to me, were essentially 'jury points'. They did not indicate 'substantial new evidence' and in essence consisted of an invitation to re-examine evidence already rejected in the judicial process (see : Hickey, para.21 supra) I will go, however, to two issues that Mr Fung, on behalf of the applicant, spoke of as points of significance.

115.It was contended in the applicant's petition that new evidence had become available to prove that he had not attended the so-called rehearsal meeting, if it took place at all, that was said by the accomplice witnesses to have taken place the day before the conspiracy to defraud IHD was put into effect. The new evidence, it was said, came in the form of a statement by Eddie Soh, the barrister who had been tasked by C.H. Low to prepare a dossier for presentation to the Hong Kong prosecuting authorities. It was said in the petition that while that dossier had itself been available at the trial, what was not known at the time was that it had been specifically prepared at C.H. Low's request to show that the applicant had been a party to a conspiracy to defraud IHD, the purpose being to bring about the applicant's prosecution.

116.During the trial, however, counsel representing the applicant had the opportunity to cross-examine C.H. Low as to how and why the dossier had come into existence and, in the course of questioning, C.H. Low readily accepted that he had authorised Eddie Soh to use the dossier to lodge a complaint with the Hong Kong prosecuting authorities concerning the applicant's purchase of shares in IHD. He further accepted that he and Eddie Soh had worked closely on the dossier over a prolonged period of time and that all the matters in the dossier had been put there on his instructions. Part of C.H. Low's cross-examination is to the following effect :

"	Q.	Now who drafted or settled this document for you?
	A.	Eddie Soh, sir.
	Q.	In order for him to have settled this document for you and presented it to the Attorney General in Hong Kong, he must have spent a great deal of time with you on these matters, Ch'ng Poh and IHD?
	A.	Before I went to Singapore prison, sir, in Taipei in the year 1998.
	Q.	You started work on it - - you did most of the work on it, is this right, whilst you were still in Taipei in 1988?
	A.	In collaboration with Eddie Soh in Taipei.
	...
	Q.	You see, this very lengthy document is replete with references always in the left-hand margin to a large number of documents in connection with this case, right?
	A.	Yes, sir.
	Q.	And essentially all the matters that we have in this document were put into it by Mr Eddie Soh on your instructions?
	A.	That's correct, sir."

117.Clearly, in my view, the jury had before them evidence that the dossier had been prepared at C.H. Low's request for the purpose of lodging a complaint with the Hong Kong prosecuting authorities, the subject of that complaint being the applicant. The reason, of course, was plain - to seek the applicant's prosecution and conviction.

118.Eddie Soh's statement (dated 5 January 2000) contains the following extract :

" I have no recollection of having been told by CH Low about a conspirators' meeting at the Regal Meridian Hotel on 16th August 1985 attended by the parties that you have mentioned. I would certainly have recorded such a meeting if CH Low had told me about it. The dossier was compiled with great care and attention to detail with a view of showing CP's involvement in the conspiracy and everything that CH Low told me was recorded. I have not left anything out."

119.In respect of Eddie Soh's statement, the advice given to the Chief Executive was to the following effect :

" ... the Petition claims that additional evidence, including a statement by C.H. Low's one-time barrister Mr Eddie Soh, supports the Petitioner's case that he did not attend a meeting (claimed to be the crux of the prosecution case against him) with his alleged co-conspirators on 16 August 1985, and that the evidence of such meeting was fabricated.

Mr Soh's statement concerns the circumstances in which he was instructed by C.H. Low to prepare a dossier to help ensure that the Petitioner would be prosecuted for participating in the IHD fraud. C.H. Low's instructions to compile the dossier did not mention that there was a conspirators' meeting at the Regal Meridian Hotel on 16 August 1985. It is contended in the Petition that this demonstrates the overwhelming likelihood that C.H. Low's evidence that the Petitioner attended the conspirators' meeting was fabricated and false.

However, Mr Soh's evidence only goes to the circumstances in which he prepared the dossier and to C.H. Low's actions and credibility and does not raise a new issue. The dossier was adduced in evidence at the trial and the fact that there was no mention of the conspirators' meeting was apparent on the face of it. C.H. Low was cross-examined on his credibility at length.

The alleged conspirator's meeting was not critical prosecution evidence. The trial judge gave the jury a very detailed review of this aspect of the case and the inconsistency of the accomplice evidence." [my emphasis]

120.In the course of his submissions, Mr Fung criticised the statement contained in the advice that the alleged rehearsal meeting was not 'critical' prosecution evidence. This, he said, flew in the face of the fact that 'the central plank' of the prosecution case had been that the applicant knew of the 'circle of cheques' and without the rehearsal meeting there would have been no direct evidence of the applicant's knowledge of or participation in the conspiracy. This fresh evidence, he said, supported the applicant's case that the rehearsal meeting must have been a fabrication. Although the dossier had been produced at trial, the purpose underlying its compilation had not been revealed until Eddie Soh's statement. Accordingly, he said, the Chief Executive had been improperly advised of the 'critical importance' of the rehearsal meeting and the 'critical importance and relevance' of Eddie Soh's statement in respect thereof.

121.The fact is, of course, that the rehearsal meeting was not critical evidence for the prosecution. It was significant but not critical. The Court of Appeal looked to the circumstantial evidence, finding that evidence overwhelming. Nor can it be said that the purpose of the dossier was not known at trial. Defence counsel may not specifically have asked C.H. Low questions as to the purpose (although it was open to him to do so) but the purpose, on the evidence given, was plain enough : it was to bring about the applicant's prosecution.

122.In any event, Eddie Soh's statement goes solely to the issue of C.H. Low's credibility, an issue fully canvassed at trial in a range of different respects. The jury was told that the dossier had been painstakingly prepared over an extended period of time for the purpose of implicating the applicant. Yet the dossier contained no mention of the rehearsal meeting. That omission itself went to the issue of whether C.H. Low could be believed in respect of his testimony that there had, in fact, been a meeting.

123.I turn now to the second issue raised during the course of submissions and said on behalf of the applicant to be of significance. This arises from the following advice placed before the Chief Executive by the Legal Policy Division :

"Ground IV of the Petition claims that the Petitioner was materially prejudiced at his trial by misrepresentation, material nondisclosure and misconduct by ICAC officers.

It is alleged that a witness statement dated 4 December 1995 made by C.H. Low to the ICAC should have been disclosed to the Petitioner during the hearing in the Court of Appeal. However, it could not be disclosed then because it formed part of an ongoing ICAC investigation into the circumstances surrounding Reid's affidavit.

In the witness statement C.H. Low said that he made a number of telephone calls to Doreen Yong in Taipei while he was detained at Siu Lam. Nevertheless, the Court of Appeal was aware that C.H. Low had access to a portable telephone at Siu Lam and there would be no point for it to consider this further evidence."

124.The tenor of this advice, said Mr Fung, reduced to insignificance the very real prejudice sustained by the applicant as a result of the prosecuting authorities failing to reveal the statement made by C.H. Low at a time when the applicant's appeal against conviction was before the Court of Appeal.

125.What was the prejudice allegedly sustained by the applicant? The prejudice, it was submitted, arose from the fact that in his statement C.H. Low mentioned that, while in prison, he had been able on a regular basis to telephone his mistress, Doreen Yong, a fellow accomplice witness. In his petition, the applicant explained the significance of this in the following terms :

"The importance of the C H Low statement was that it was an admission by him of having an opportunity, prior to Your Petitioner's trial, of colluding with his co-conspirators and prosecution witnesses Doreen Yong and Quek to produce false evidence against Your Petitioner. It would have lent support to your Petitioner's contention that this is what happened. In particular it would have supported Your Petitioner's assertion that the evidence given by them about the 'conspiracy meeting' on 16th August 1985 was a recent concoction facilitated by the telephone calls which ICAC failed to disclose."

126.But the fact is that the Court of Appeal was aware of the fact that, before the applicant's trial and while C.H. Low was in prison, he had access to a telephone. Indeed, application was made to the Court of Appeal to admit the evidence of witnesses who could attest to that very fact. One of those witnesses was a man named Alex Chan. In its judgment, the Court of Appeal, per Mayo JA, had the following to say in respect of the application to admit that man's evidence :

" Alex Chan was also a fellow prisoner of C.H. Low at Siu Lam in the later part of 1992. The considerations relating to the admissibility of Chan's evidence are similar to those obtaining in relation to Reid. According to an affirmation affirmed by Chan he and C.H. Low became friends and had numerous conversations. During the course of these it became clear that C.H. Low had a bitter antagonism towards the appellant and was anxious to harm him if he could. At one point he said that he would frame him. Chan also said that he had been a party to illegally arranging for a portable telephone to be brought into the prison for C.H. Low's use. One of the people he wanted to speak to was his mistress Yong. The arrangements were made with Lai a warder and C.H. Low made a number of telephone calls on the telephone. Eventually the use of the telephone was discovered by the authorities and criminal proceedings were instituted against Lai and Chan.

Mr Plowman submitted that collaboration between the co-conspirators was an important element of the trial below. The defence's knowledge or lack of it was crucial. Mr Plowman claimed that the prosecution should have acquainted the defence with particulars of the use of the telephone.

We do not think that this submission can be sustained. The scope at that point of time for collaboration would have been limited. The opportunity for collaboration had existed for some time and the conspirators had already made statements committing themselves to their versions of events. At best this issue was peripheral."

127.The Court of Appeal was not there rejecting as false the assertion that C.H. Low had had access to a telephone and would thereby have been able to contact his mistress and the other accomplice witnesses. The essential reason for refusing to admit the 'telephone evidence', if I may call it that, was because of its limited relevance. As Mayo JA said, the issue was, at best, peripheral.

128.The advice given to the Chief Executive, therefore, did no more than accurately reflect the essential findings of the Court of Appeal, bringing to the attention of the Chief Executive that Eddie Soh's statement did not reveal new and substantial evidence.

Conclusion

129.For the reasons given in the body of this judgment, I am satisfied that the application for judicial review must be dismissed. I have come to this conclusion considering the various grounds of challenge individually and as a whole. Costs, I believe, must follow the event and are awarded to the respondent.

Representation:

Mr Daniel Fung, SC and Mr Johannes Chan, SC (Hon),instructed by Messrs Chan & Tsu, for the Applicant

Mr Benjamin Yu, SC leading Mr Nicholas Cooney,instructed by Department of Justice, for the Respondent