Iqbal Hussain Khan v. Attorney General

HCA002683/1971

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2683 OF 1971

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Coram: McMullin J.

Date of Judgment: 7 March 1974

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JUDGMENT

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1. The plaintiff in this action is a sergeant in the Royal Hong Kong Police Force. He joined the Force in 1952 as a police constable and on or about the 1st of February 1963 he was promoted to the rank of corporal which is substantively the same as the rank which he at present holds. On or about the 1st of June 1968 he was promoted by the Commissioner of Police, in exercise of his powers under Section 14 Subsection 3 of the Police Force Ordinance, to the rank of inspector on terms that he would serve a probationary period of three years in that rank. On the 3rd of June 1968 he was posted to the Police Training School at Aberdeen, Hong Kong for the purpose of taking part in a training course and subsequent to his completing that course he received a memorandum from the Acting Deputy Commissioner of Police informing him that, pursuant to the powers contained in Section 25 Subsection 1 of the Police Force Ordinance, he had been reverted to the rank of police corporal with effect from the 22nd of November, 1968. The substance of his claim in this case is set out in paragraph 8 of his statement of claim which is in the following terms:

"On or about 6th December 1968 the Plaintiff was informed in writing by the Commissioner of Police that his application referred to in Paragraph 7 above was refused pending the investigation of certain allegations made by the Plaintiff to the Anti-Corruption Branch of the Hong Kong Police Force and despite numerous subsequent attempts by the Plaintiff he has never been informed of the reasons for such ...(illegible) nor been given the opportunity of defending himself on any charges which may have led to such reversion and has thereby been denied natural justice whereby such reversion was unlawful and a nullity."

Pursuant to this allegation he claims in this court relief by way of a series of declarations which are in the following terms:

2. The Attorney General (who is admitted to be the proper defendant in respect to the present proceedings under the provisions of the Crown Proceedings Ordinance) caused to be filed a defence to this claim on the 29th of February 1972. The allegation that the plaintiff was not treated in accordance with the principles of natural justice is denied and certain matters, principally concerning interviews and correspondence passing between the plaintiff and his superiors, are pleaded in extenso in support of that rebuttal. In general it is the contention of the defendant that the plaintiff was reverted in rank because, upon the consideration of his performance on the course as a whole, including his examination results, he was not considered to be officer material. It is also pleaded that he was on several occasions informed that this was the reason for his reversion.

3. What is of special interest in these pleadings, having regard to the nature of the interlocutory proceedings now before this court, is that nowhere in his statement of claim does the plaintiff claim anything more than that he has not been given the reason for his reversion and has not been accorded an opportunity of defending himself against any charges which may have been levelled against him and which may have resulted in his fall in rank. Although mention is paragraph 8 of the statement of claim the fact the he had made allegations to the Anti-Corruption Branch of the Police this is stated only as an introduction to the complaint that he was refused an interview with the Commissioner pending the result of investigations instituted upon his allegations. Not only is no detail of these allegations given; it is not stated or even suggested that his reversion in rank was the result either of the acts of corruption which he alleged or of the fact that he had made such allegations. In dealing with paragraph 8 however defence takes up this passing reference to the corruption allegation and goes in some detail into the nature of it. Thus in paragraph 5(c) the following facts are pleaded:

"At 2.50 p.m. on 25th July 1969, the Plaintiff was interviewed by the Commissioner of Police, Mr. Charles Sutcliffe, in the presence of Mr. H.J. Carlyle, Senior Superintendent of Police (Establishment). The Plaintiff repeated his allegations of corruption against certain members of the Staff of the Police Training School and alleged that the reason for his failure to pass the course was because he had refused to make corrupt payments to them. In reply, the Commissioner of Police stated (inter alia) that the Plaintiff's allegations of corruption had no connection whatsoever with his failure to pass the course. The course in question was what in England was known as 'pre O.C.T.U.' the object of which was to study the Plaintiff in isolation from his former colleagues and his reversion was made after consideration of the reports upon his general performance on the course which had been poor. No disgrace was involved and there was no allegation of any wrongdoing on the part of the Plaintiff. The Plaintiff's weakness appeared to be obstinacy but there was nothing to prevent him from proving himself capable of being an inspector in the future. This interview lasted for two hours."

Two distinct matters are there dealt with. The first is the plaintiff's alleged contention that he had failed to pass the course because he had refused to make corrupt payments to those who were in charge of it; the second is the Commissioner's evident apprehension that the plaintiff might be under the impression, since he had been informed that his allegations had been investigated and found unsubstantiated, that action had been taken against him simply because he had seen fit to make such a report in the first place.

4. On the 7th of June 1972 the plaintiff filed a reply to his defence and in paragraph 4 thereof it is said that:

"No admission is made as to the extent or conclusion of the Anti-Corruption Branch investigation referred to in paragraph 4 of the Statement of Defence."

This pleading is one of eleven paragraphs constituting the reply. The remaining paragraphs are taken up either with outright denials of certain of the matters pleaded in the defence as showing that the plaintiff was kept informed of his position and progress and the complaints of his superiors or else with disputing some of those allegations in matters of detail. The plaintiff's attitude towards the substance of his claim at that date (viz. : 6th of June 1972) is succinctly summarised in the penultimate paragraph of the reply which is in the following terms :

"By virtue of the matters pleaded herein and in the Statement of Claim the Plaintiff repeats that he was (a) never notified that his reversion was under consideration, (b) never notified of the specific allegations made against him for the purposes of such consideration and (c) afforded no opportunity to contradict or explain these allegations until long after the decision had been made."

The claim which is still clearly and fully in view is that he was unfairly dealt with in that he lost rank (a) without warning, (b) without due reasons given and (c) without being given an opportunity of confronting his ...(illegible) whoever they might be.

5. With the issues thus draw between the parties lists of documents were exchanged in the usual way and in compliance with the provisions of o.24 r.9 each party notified the other of the place and time for inspection of the documents thus disclosed and in respect of which no objection was made to such inspection. Twenty-six documents are by the defendant's list declared available for inspection by the plaintiff. They include a number of progress and other reports upon the plaintiff obviously made in connection with the training course and also reports of interviews between the plaintiff and certain very senior police officers subsequent to that course.

6. A summons for directions was taken before the Deputy Registrar on the 10th of January 1973. It is of some interest that out of the 30 possible directions included in the printed form two only were made the subject of an order on that occasion. Thus, by agreement of the parties, there was an order that the trial should take place before a judge without a jury and that the case should be set down for hearing within 21 days; secondly, that the costs of the application be costs in the cause. Thereafter so far as interlocutory agitations are concerned, the matter appears to have slept until mid-September. Then, some time early in that month, Mr. Robertson of Messrs. Johnson, Stokes and Master appears to become exercised about the possibility that the defendant may not have made full disclosure of all relevant document in his possession concerning the matter in issue. It would appear that he wrote to the Legal Department of the Hong Kong Government enclosing a list of the documents which he believed to be in that category. Thirteen items are listed as follows :

7. On the 13th of September Mr. G.W.F. Thompson of the Legal department replied to this letter in the following terms:

Thank you for your letter of 5th September, I have checked through your list and of course I am not suggesting that all the items need be subject to a battle, so to clarify I will comment on each of the documents in turn following your numbering:

I trust this clarifies the matter.

8. On the 19th of September Mr. Robertson filed a Notice of Application for further directions to which was attached in the form of a schedule the list of documents. The application asked for three things: (1) an order requiring both parties to file affidavits in support of the list of documents previously fired by each of them; (2) an order requiring the defendant to state in such affidavit whether the documents or class of documents or any of them referred to and specified in the schedule had at any of them been in his possession custody or power and if the same or any of them had been but no longer were in his possession custody or power to state when he had parted therewith and what had become of them; (3) an order notwithstanding the order dated 10th of January 1973 the action be tired by a judge and a jury.

9. This application was taken before Mr. Registrar Silke on the 2nd of November 1973. At that hearing it was agreed between the parties that there was no dispute in relation to items 2, 5, 6, 7, 8, and 9 of the scheduled list and the argument as to discovery concerned only the remaining items. The objection in relation to items 10, 11, 12 and 13 was solely on the ground of relevance. The learned Registrar overruled the submissions of Crown Counsel in their regard and ordered discovery of all those items. He also made an order in terms of the first item claimed in the notice and subsequently Mr. Thompson filed an affidavit verifying a list of documents which had been amplified to include such of the items ordered to be disclosed as were still in the possession of the defendant (items 10 and 11 in the schedule) together with the uncontested items 6 and 7 in the schedule and the two other documents then additionally and gratuitously disclosed although no application had been made in respect thereof viz.: a training record of the plaintiff at the Police Training School from June 1968 together with an examination result summary; and also a document referred to as "the personal dossier and punishments of plaintiff as police officer". These additional six items therefore brought the total number of documents disclosed and made available for inspection by the defendant to 32. In addition Mr. Registrar Silke refused an order for a trial of the action with a judge and jury.

10. From these orders of the Registrar in so far as the application was unsuccessful the plaintiff now appeals to this court. It may be said that the only matters remaining in issue are the orders concerning the refusal of jury trial and the orders refusing discovery of the documents referred to at items 1 and 3 of the schedule to the Notice of Application for further directions. Although discovery was also refused of item 4 no point has been made of that upon the hearing of this appeal and in view of the fact that Mr. Thompson's letter of the 13th of September expressly raised no objection to the production of the book concerned it is, I think, proper to say that that matter is no longer in contention.

11. On the hearing in chambers before me Mr. Jackson-Lipkin appeared for the plaintiff and Mr. Thompson once more appeared for the defendant. The issues are the same as those argued before the Registrar. Following the line taken by counsel before me I will deal first with the issue of jury trial. In this regard we are concerned primarily with the provisions of Order 33 rule 5 of the Rules of the Supreme Court. The six numbered paragraphs into which that rule is divided are substantially the same as rules 2 to 7 of Order 36 of the Annual Practice which was first introduced in England in the year 1883. They are substantially different from the provisions contained in the current English Supreme Court Practice in relation to jury trial. In LEE Kwei-fong and Another v. D.J. Bryan⁽¹⁾ Mills-Owens J. in acceding to an application in a running down action for trial with a jury considered identical provisions in the then Code of Civil Procedure which were then grouped in precisely similar sequence under Order 12 and since his arrangement of the relevant authorities coupled with his own comment thereon afford a general view of the meaning and purpose of these rules which is at once comprehensive and concise I make no apology for reproducing as it stands what he has to say upon the subject between pages 26 and 28 of that judgment:

Dealing with the subsequent history of the matter, Bankes L.J., in the case of Ford v. Blurton (1922) 38 T.L.R. 801, at page 802, said :

12. It is Mr. Jackson-Lipkin's contention that the present action is of its nature a straight forward Common Law action, and that it therefore must fall within the provisions of paragraph 5 of rule 5 as conforming with the description of "any other cause or matter" i.e. any cause or matter other than those mentioned in the preceding paragraphs of the rule. That being the case he says the plaintiff has a right to trail by jury which is qualified only by the provisions of paragraph 4. In this connection it is well, at this point, to dispose of a difficulty occasioned by what is quite evidently a mistake in the text of paragraph 5 of rule 5. That is the paragraph the provisions of which effected (to quote the words of Bankes L.J. in Ford v. Blurton [1922] 38 T.LR. 801) "an exact reversal of the previous state of things" in as much as the prior rule relating to all Common Law actions that trial should be by jury is replaced by a provision to the opposite effect viz. : that in such cases trial should be by judge alone subject only to the exceptions noted within the text of paragraph 6 of that rule. The reference in the second line of paragraph6 to paragraph 3 of the rule is quite clearly wrong and the rule cannot be sensibly read with that figure as it stands. I accept the submission of counsel, who are agreed upon the point, that the printer's devil has been at work and that (3) should read (5) in that rule. This leaves us in the position that if, under paragraph 5, application is made by either party for a trial by jury and if the court upon consideration is of the view that paragraph (4) does not apply, the application must be granted and the provisions of paragraph (6) have no relevance to the case.

13. Mr. Thompson for the Attorney General maintains, on the other hand, that the present action is one which could fall within the ambit either of paragraph 2, paragraph 3 or paragraph 4 of rule 5 with the result that there could be no claim of right in either party to a jury and the matter, under these paragraphs, would be left in the discretion of the judge under paragraph (6). The argument would then direct itself into a different channel and the question would be what principle should guide there court to exercise its discretion in favour of an applicant for jury trial having regard to the fact that paragraph 6 clearly implies that the ordinary mode of trial in all cases not excepted from its provisions shall be by the court without a jury. By was of clearing the ground and not to labour the matter unnecessarily, I may say once that I cannot accept Mr. Thompson's submission in relation to paragraphs (3) and (4) of rule 5. So far as paragraph 3 is concerned Mr. Jackson-Lipkin is clearly right when he points out that there is not now before me any order direction the trial of an issue of fact or partly of fact and partly of law arising from the present cause nor has either party to this action intimated at any stage any belief that it is desirable that such an issue should be directed. That paragraph applies to all actions which would have been Chancery actions before 13th October 1873,the date of the proclamation by which the then Governor of Hong Kong brought into force Ordinance 12 of 1873. This Ordinance re-constituted the Supreme Court and Ordinance 13 of the same year which was activated by the same proclamation promulgated the first Code of Civil Procedure in the form of a separate Ordinance. Prior to that date which was, of course shortly before the introduction of the first Judicature Act of 1873, such Chancery matters would have been heard without a jury but any special issues directed to be tried in connection with any such actions would have been tried with a jury. The novelty introduced by paragraph 3 is restricted to conferring upon the court a discretion even in respect of such issues to direct that they be tried without a jury, but as I have indicated it has no relevance to the circumstances here.

14. As to paragraph (4) of rule 5 it need only be said that despite Mr. Thompson's valiant endeavour to persuade me that the perusal of the documents already disclosed in the list, and even as amplified by the disputed files should they be produced, would overtax the powers of a Hong Kong jury was a forlorn endeavour in view of the authorities to which I was referred by Mr. Jackson-Lipkin. It will be sufficient to cite one only of these. In Rothermere and Others v. Times Newspapers Ltd. and Others⁽²⁾ the plaintiffs resisted a jury trial on the ground that it would require prolonged examination of documents and asked for trial by a judge alone. The particulars of the defence in the case ran to 59 pages and referred directly to scores of documents many of which were accounts. There was disclosure by the plaintiffs of some 10,000 documents altogether and the court took the view that even if only a fraction would be read at the trial it would inevitably mean that a considerable number of them would need to be read and understood. By comparison the number of documents involved or likely to be involved in the present case is modest and in view of the nature of the action it is doubtful that a prolonged examination of them will be necessary.

15. The real meat of Mr. Thompson's argument on this point is to be found in paragraph (2) of rule 5. This case is, he says, just such a cause or matter as would prior to the 13th October 1873 have been heard by the Supreme Court in its equitable jurisdiction, and therefore such a case must be tried without a jury unless the court otherwise orders. Mr. Jackson-Lipkin resists this contention on the ground that the relief claimed in the action consists of a series of bare declarations unsupported by any additional claim for relief of any other sort. On his argument such an action as the present could simply not have been tried in the courts of the Colony at all prior to the 13th of October 1873. The reason for that is that in an action in the old Common Law courts no such thing as a declaratory judgment of existing or future rights was known until the introduction of the first Annual Practice in 1883 following upon the fusion of law and equity by the provisions of the Judicature Act. Prior to 1883 the Court of Chancery did make binding declarations of right but only if some right to relief which the court could grant, whether claimed or not, was shown and established. It would appear (see page 212 of the Annual Practice Vol. I) that after the Judicature Acts and before 1883 the Common Law courts followed the practice of the Courts of Chancery in this matter. Only after 1883 was it made clear that, by virtue of the original Order 5 rule 4 of the Annual Practice the court, whether in Common Law or in Chancery matters was empowered to make binding declarations of right whether or not any consequential relief was or could be claimed. If it be the case that prior to 1873 no such declarations could have been given as those sought then undoubtedly the only category into which the present action could fall would be the category provided by paragraph (5) of rule 5. The matter however is not thus simply to be disposed of. Mr. Jackson-Lipkin concedes that in England prior to us ...(illegible) the Annual Practice and prior to the Judicature Acts the Court of Exchequer on its equity side did have power to make binding declarations of right without giving any consequential relief and that in practice such declarations were customarily made in that court. It had of course no such power in its Common Law jurisdiction and the main force of counsel's argument initially at least lay in the fact that although from 1844 onwards successive ordinances constituting or re-constituting the Supreme Court of Hong Kong invariably did in set terms confer jurisdiction upon that court which included the jurisdiction enjoyed by the Court of Exchequer in England the jurisdiction so conferred was the Exchequer jurisdiction on its Common Law as distinct from its equitable side. Had it from the start enjoyed the full jurisdiction of the Court of Exchequer both legal and equitable he would have been happy to concede that the present action could have been brought on the equitable side and indeed in the course of the argument he went so far as to say that before 1873 (and I understood him to mean that this was in reference to the practice in England) this type of action would have been tried in the Exchequer because that court did possess power on the equitable side to grant bare declarations. To my mind this contention is clearly right. Professor de Smith in his "Judicial Review of Administrative Action" outlining the historical process of the growth of declaratory proceedings refers firstly to the fact (page 495) that the Court of Chancery did not issue purely declaratory orders but goes on to say at page 496 :

"More significant for the development of the action for the declaration in public law was the practice of the Court of Exchequer, which, uninhibited by the restraint that the Court of Chancery had imposed upon itself, had long awarded equitable relief against the Crown, represented by the Attorney General, on bills filed by subjects. Its jurisdiction to grant relief against the Crown was derived from a Statute of 1541, and its judgments were usually declaratory in form."

It would seem from this that the Court of Exchequer was precisely the proper forum for this kind of action. Mr. Jackson-Lipkin's argument, however, would be unassailable if it were clear that the equitable part of the jurisdiction of the Court of Exchequer had never passed to the Supreme Court of Hong Kong and this was indeed originally counsel's submission on the matter. His opponent however drew to his attention the Statute 5 Victoria Chapter 5 which was passed in 1841 by Section 1 of which the jurisdiction of the Court of Exchequer as Court of Equity was abolished and transferred to the Court of Chancery. In 1844 there was passed in Hong Kong the first of the Ordinances, Ordinance No. 15 of that year, to establish a Supreme Court of Judicature at Hong Kong. Section 13 of that Ordinance confers upon the Supreme Court of Judicature the legal jurisdiction of Her Majesty's Court of Queen's Bench, Common Pleas and Exchequer. Section 14 confers upon the court the equitable jurisdiction of the English Court of Chancery. By that date, Mr. Thompson says, the court in Hong Kong enjoyed upon its equitable side the power of the English Court of Chancery, acquired from the Exchequer, to make a binding declaration of right between the subject and the officers of Her Majesty's Government represented by the Attorney General even in cases where no consequential relief was claimed. To this Mr. Jackson-Lipkin replies by pointing out that paragraph (2) of rule 5 refers to causes or matters which would and not which could have been heard by the court in its equitable jurisdiction prior to the 13th of October 1873. He points to the undoubted fact that, notwithstanding its fresh accession of powers from the Court of Exchequer by the Act of 1841, judges in the Court of Chancery in England maintained the practice of not giving declaratory judgments unless consequential relief was also claimed. He cited a number of authorities in support of this proposition and it is clear that notwithstanding the passing of two separates Statutes within a short time of each other (the Court of Chancery, Act 13 and 14 Victoria Cap. 35 in 1850 and the Court of Chancery Procedure Act 15 and 16 Victoria Cap. 86) each of which contained provisions (Section 14 in the form. Act and Section 15 in the latter) empowering the Court of Chancery to make binding declarations in the absence of claims for consequential relief the court continued to take the view that when a declaration was asked for in the Court of Chancery there must be some form of consequential relief which a plaintiff could ask for in respect of the same cause or matter even although he may not actually have claimed such consequential relief. A good example of the pains the courts were at to avoid what appears to have been the intention of the legislature to reform their practice in this regard is the case of Jackson v. Turnley⁽³⁾, a case in which the Court of Chancery Procedure Act of 1852, in particular Section 50 thereof, was under consideration. It seems needless to enter into the several authorities cited to show the courts continued reluctance to grant bare declarations or to discuss the reasons which prompted them to persist in this restrictive view of their own powers. At page 497 of his work Professor de Smith remarks in relation to the Courts and their attitude to these Acts :

"These valuable accessions of authority (which were especially useful for the determination of disputed points arising in the administration of estates and trusts) were construed more restrictively than had seemed possible. The court not only maintained its traditional reluctance to declare future rights, but held that the classes of cases in respect of which declarations could be made had not been enlarged; a declaration could now be made unaccompanied by any consequential relief, but only in cases where the plaintiff would have been entitled to other relief had he but chosen to ask for it. More explicit directions ere needed to bestir the court from the torpor of unimaginative conservatism."

The learned author then goes on to discuss the introduction of the 1883 Rules and Order 25 rule 5 thereof which is in the following terms :

He goes on to comment that despite this rule the courts still showed a curious reluctance to award declarations save in cases where other relief might have been claimed for a legal wrong and the courts insisted that the jurisdiction should be exercised with great caution. Undoubtedly it is the case that even after the transfer to it of the powers of the Exchequer Court in 1841 and after the apparent enlargement of its powers by what appear to be the clear words of two separate Statutes and even after the introduction of the Supreme Court rules in 1883 the Chancery Court maintained an attitude of reluctance to make binding declarations of right unsupported by any other claim for relief. This, as it appears to me, is a historical curiosity which it would be, for present purposes fruitless to pursue. If the power of the Court of Exchequer to make bare declarations did indeed pass to the Court of Chancery in 1841 the present action is clearly one which would have been preferred on the equitable side in the Courts in Hong Kong had it been instituted before 1873. Perhaps it would be well to mention one further doubt which is expressed by Professor de Smith in the work already cited where, in dealing with the transfer of the Exchequer powers to the Court of Chancery he says at page 496 :

The final reference in that passage was of course to the case of Dyson v. The Attorney General ⁽⁴⁾. In that case the Inland Revenue Commissioners issued to the plaintiff Dyson, a taxpayer, a form and a notice requiring him under penalty to submit certain particulars. The plaintiff relying on pre-1842 Exchequer precedents and upon Order 25 rule 5, sued the Attorney General for declarations that the requisition was unauthorized and that he was under no obligation to comply with it inasmuch as it was ultra vires the Finance Act. The Court of Appeal held that this form of proceeding was a proper one and subsequently it granted the declarations sought. The point as to whether the former power of the Court of Exchequer to grant bare declarations had passed to Court of Chancery was not made the subject of any clear pronouncement in that case. Professor do Smith bases his tentative suggestion on what was said by the court in the Attorney General v. Halling ⁽⁵⁾ at pages 698 - 699. It may be doubted that that decision really does support the view which he puts forward. The case concerned an information filed by the Attorney General on behalf of the Crown in a matter of revenue. The defendants were charged with not having paid certain duties on goods which they had imported and the only matter which was argued before the court was whether the equitable jurisdiction of the Court of Exchequer as a Court of Chancery. Pollock C.B. considered the provisions of Section 1of 5 Victoria Cap. 5 (to which reference has been made above)and which are in the following terms:

His conclusion upon the matter appears at page 699 of the report and it is in the following terms :

"Upon considering, therefore, all these circumstances, we have arrived at the conclusion , that the construction of the 5 Vict. c. 5, s.l, which is the literal one, and which avoids all these inconveniences, is also the true one, and that the Court has, notwithstanding that Act, retained all its actual and incidental jurisdiction, equitable as well as legal, which it has as a court of common law, and has retained also all its proper jurisdiction as a court of revenue, for the collection of the revenues of the Crown, whether the jurisdiction be exercised after the forms of common law or equity : but that it has lost all jurisdiction as a court of equity between its officers and Crown debtors, and the other subjects of the realm, which was before incident to it as a court of revenue, and was exercised by it as a mere court of equity;"

As I read those words what the learned Chief Baron was saying was that the equitable jurisdiction of the Court of Exchequer as a Court of Revenue had been abolished by the statute and transferred to the Court of Chancery. He was concerned merely to point out that notwithstanding the provisions of the section the court's legal powers as a Court of Revenue for the collection of revenue, of the Crown had not been abolished. Nor had its other Common Law powers been abolished. At all events I take the view that this power to make bare declarations of right did exist in the Chancery Court before 1873 by virtue of the Act of 1841. If that be so then that power of the Court of Chancery passed by virtue of the provisions of the Ordinance of 1844, to the Supreme Court of Judicature in Hong Kong. If This be a wrong construction of the matter there is yet a further consideration which would draw me to a similar conclusion in relation to the nature of the present action and its probable status before 1873. In the Guaranty Trust Co. of New York v. Hannay & Co. ⁽⁶⁾ the principle adopted in Dyson's Case ⁽⁴⁾ of granting a declaration on the lines of the pre-1842 Exchequer Precedents was supported. The Court of Appeal dealt with the contention of the defendant that Order 25 rule 5 of the 1883 Rules of the Supreme Court was ultra vires in that, being a mere rule of procedure, it had purported to extend the jurisdiction of the court to make bare declarations whereas formerly no such power existed. This argument was rejected by the court which held that the rule had not conferred any new jurisdiction upon the court and was therefore intra vires. It is implicit in the judgments delivered in that case (with the exception of course of the dissenting judgment of Buckley L.J.) that jurisdiction to give pure declaratory judgments, even in cases where was no independent cause of action and no possibility of granting consequential relief, had always resided in the Court of Chancery although the English courts had adopted a settled practice of refusing to render such judgments (See again Professor de Smith op. cit. at page 499). In theory at least there was no reason other than the attraction of comity to prevent the Supreme Court in Hong Kong from adopting a divergent practice in this regard.

16. Mr. Thompson argued as an alternative to his contention in relation to the nature of the present action that the claim at present put forward would in any event have been capable of being preferred as a petition of right which as he put it could have been preferred in any of the superior courts of Common Law or Equity. The question whether the plaintiff's cause of action could have been presented by way of petition of right is not easily answered, I have been referred to no instance of such a proceeding having been taken is these courts.

Mr. Thompson referred me to the Petitions of Right Act 1860 and did not appear to rely upon the possible efficacy of any older form of petition of right such as is said to have existed in England from the time of Edward The First. It is common ground that such petitions could not in any event be sued out against the Crown in respect of any tort by a Crown servant but were intended mainly to effect recovery of property or satisfaction under the terms of a contract in relation to the Crown.

As presently framed the plaintiff's action seems to fit at best uneasily into either category. There is also the fact that whereas petitions of right were abolished ...(illegible) the 1947 Crown Proceedings Act in England the schedule to the Crown Proceedings Ordinance of 1957 in Hong Kong expressly abolishes proceedings by way of petition of right under Section 52 of the Naval Act 1864 a fact which seems to presuppose that that form of proceeding under that special Statute was available in the Colony prior to the Crown Proceedings Ordinance. Whether the proper conclusion from this is that petitions of right were never viable in the Colony for any other purpose than the purpose of that special Act or that they now still persist as formerly they did in England both at Common Law and under the 1860 Act and are diminished only to the extent of the terms of the abolition clause in the Crown Proceedings Ordinance is a matter upon which I have not been addressed and to which I do not propose to attend further. The plaintiff's claim as presently constituted is founded neither in contract nor in tort : he claims that he has been the victim of a breach of natural justice and he asks for a series of declarations in relation thereto. It is that cause or matter, so framed, that I am to consider in relation to the provisions of Order 33 rule 5. I think it needless to consider this matter further if only for the reason that what I am asked to consider is the present action as presently constituted and its probable status before 1873. The question posed is whether this present action could have been preferred form on a date before the relevant date in 1873; and, secondly whether it would have been preferred on the equitable side of the court's jurisdiction. The plain answers to those questions, as I see it, are that it could have been so presented and that it not only could but would have been preferred upon the equitable side. It could not before 1873 have been pursued before the court in its Common Law jurisdiction. The plaintiff therefore cannot claim a jury as of right and that matter is left in the discretion of the court.

17. In view of what has been said it is not necessary to enter in any detail into the other subsidiary contentions of counsel upon the point but in deference to the arguments which have been addressed to me I should like to say as follows : Firstly, although in the list of older authorities to which counsel have referred me there remains, to my mind, some degree of doubt as to what courts in the past have held to be mere or bare declarations yet I cannot regard the declarations asked for in the present instance as being within that category. As it seems to me the best examples of what have been held to be bare declarations are to be found in cases such as Rooke v. Lord Kensington⁽⁷⁾ and Jackson v. Turnley⁽³⁾ both of which are instances of a plaintiff turning to the Court of Chancery for a declaration of his right in relation to certain property in order to forestall a suit against him by any party challenging that right. By contrast the whole tenor of the declarations sought in the present case is positive in character. The plaintiff claims to have been unlawfully put down from higher office and to be declared entitled to the holding of that office and he prays in unequivocal terms for an order declaring his right to reimbursement for the emoluments already lost to him through what he regards as the illegal withholding of his due wage for a specified period now passed. It may be as Mr. Jackson-Lipkin points out that there is no strict right in the subject to sue the Crown for emoluments of the sort but that argument is greatly too academic in the circumstances. It can scarcely be doubted that were such declarations granted, and assuming that there were no successful appeal from the order of the court, the immediate practical result would be the restoration to the plaintiff of the arrears of his full emoluments at the higher rank. Apart from that the courts in England prior to 1873 appear to have been not wholly uniform in the views put forward as to what did constitute a bare declaration. Thus in The Trustees of The Birkenhead Docks v. Laird etc. ⁽⁸⁾ the plaintiff's trustees apparently asked for and obtained a declaratory order that the defendant was not entitled to take down a certain wharf wall but although they asked also for an injunction to prevent him doing so that was not given. The order therefore which had been made by the Master of the Rolls was of a wholly declaratory nature. The trustees appealed and the Court of Appeal disapproved the form of the decree because it contained the declaration of a mere legal right but their Lordships were of the opinion that the decree would have been in order had it granted the equitable relief claimed i.e. the injunction. The Court of Appeal at the hearing of the case would seem to have substituted the declaratory order with an order for an injunction made upon its own motion. By contrast in Clough v. ...(illegible) ⁽⁹⁾, members of a lodge forming an association, which consisted of many thousands of members filed a bill against other members in which they complained of being excluded from the lodge and prayed for a declaration that such exclusion was illegal and void; for an injunction to restrain the defendants from applying a certain sum of money otherwise than in accordance with the rules of the lodge; and for an account if necessary. The learned Vice-Chancellor appears to have taken the view that he had no power to grant such a declaratory order even if it were accompanied by an order granting an injunction in the torms prayed. It may be added that he dismissed the plaintiff's bill with misgiving and said that he came to his conclusion not without hesitation and was not confident of its correctness. I have found the state of authority on this matter somewhat puzzling and I prefer to say no more than that in my view the present declarations sought are not strictly speaking bare declarations in view of their nature and possible effect.

18. Finally, in relation to the older practice I think that Mr. Thompson is clearly correct in his view that at least two of the older authorities are at variance with what is alleged to have been the earlier practice and that Taylor v. The Attorney General⁽¹⁰⁾, and Hodge and Others v. The Attorney General⁽¹¹⁾ ...(illegible) are fair and very early examples of cases in which the Court of Chancery did in fact make orders which were tantamount to bare declarations of right. The fact that in the latter case the court also ordered the taking of an account seems to me to be immaterial. The defendants were bankers who were equitable mortgagees by the deposit of title deeds of the estate of a certain convicted felon the legal estate in whose property had passed to the Crown and the bankers were asking the court to order that the land should be sold to satisfy their lien. The Attorney General resisted on behalf of the Crown and the court found itself powerless to make any order against the Crown. It merely declared that the plaintiffs were the equitable mortgagees in respect of their lien and directed them to take an account of what was due to the plaintiffs in respect of that lien. The order for the taking of the account was equally bare of practical effect as was the declaration of the status of the plaintiffs since not until the Crown saw fit to redeem the mortgage would there be funds available to reimburse the plaintiffs to the extent of the amount established by the taking of the account.

19. I would not wish to part from this aspect of the case without echoing the discontent expressed by both counsel in relation to the substance of the present rules comprised under rule 5 for establishing the rights of a party to jury trial. Whatever may be the logic of historical development which has produced the present form of those rules it does seem highly inconvenient and indeed unseemly that a judge in Hong Kong in 1973 being set to discover the answer to a short and simple question viz. is the case one in which an applicant may claim a jury as a right or can he merely request the court to exercise its discretion in that regard? - is thereupon compelled to rummage through the lumber of doubtful precedents vanished courts and obsolete writs to seek his answer in the attics of pre-Judicature Act practice by the flickering light of old authority. The present provisions of Order 33 rule 5 have persisted unchanged since the introduction of the Annual Practice of the Supreme Court in England in 1883 and they are now substantially different from the current provisions in Order 33 of the English Rules relating to the regulation of trial with a jury. Whether or not the present English provisions are best adapted to the purposes of this territory one would think that the time was ripe for the introduction of some more simple formula for regulating this important question.

20. I turn now to the question of discretion. Mr. Thompson reasonably points out that upon the original summons for directions matters of this kind were so little in controversy between the parties that there was no suggestion of any desire on the part of the plaintiff to have a jury trial. He has invited me to follow him in some rather dubious speculation as to the cause for this change of attitude now some ten months later. The plaintiff would appear to have made the subject matter of his grievances available to the press on at least two separate occasions once in May and once in October this year. The result was some rather sensational headlines in two local English language newspapers. Mr. Jackson-Lipkin asked me to disregard entirely the actual substance of these reports and I most willingly do so. No one is better aware of the frequently inaccurate and sometimes downright misleading reporting which often results from the statements of some private individual who may not at the moment be weighing his words as carefully as he might. more especially when approached upon a matter of Public concern or current interest when his words may readily be distorted by dramatic presentation in the interest of sensationalism. The fact remains that such reports did appear and they boldly claimed (whatever the plaintiff himself may actually have said about the matter) that the plaintiff ascribed his relegation in rank to his refusal to co-operate in corrupt practices in the Police Force. It should be reiterated at the present point that nothing in his pleadings makes any such suggestion whatsoever. For a litigant who ultimately expressed a desire for trial with a jury this excursion into publicity was to say the least of it unfortunate and ill-advised. Of itself however I do not feel that it should disentitle him to a jury if sound reasons can be advanced in favour of his having one. I accept Mr. Jackson-Lipkin's explanation for the plaintiff's change of mind as being the more likely one; that is to say, that, at the time that the first summons for directions was heard, he was differently advised. Since then upon a change of legal advisers, and falling in with the advice tendered, he has sought to withdraw his former agreement to trial by judge alone. Counsel have both referred me to cases such as Cocte v. Ingram ⁽¹²⁾ and in re Martin, Hunt v. Chambers ⁽¹³⁾ and it is clear upon the authority of these and other similar decisions where the question was one of discretion in the judge as to whether or not a jury was to be ordered, that that discretion should be exercised in the light of the fact that trial without a jury is the normal mode of trial and that the onus is squarely upon the applicant for a jury to show good reason why he should be accommodated by an order which would run counter to the normal practice. Authority upon the correct manner of exercising this discretion is not copious but some recent authority there is. I think I am being fair to Mr. Jackson-Lipkin's argument when I say that he would rest his client's case for a jury squarely upon certain expressions to be found in these cases and which are generally to the effect that trial by jury may be the best possible form of trial in any case in which a man's honour and integrity have been impugned. Thus in Ward v. James ⁽¹⁴⁾ , a personal injuries claim in which the Court of Appeal dismissed an appeal from a judge in chambers, upholding an order of a Master disallowing a jury trial, the Master of the Rolls said at page 295:

He went on, in common with the other Lord Justices, to distinguish such cases from the case before them principally on the ground that it was a personal injuries claim. The Master of the Rolls, Lord Denning, once again expressed himself in similar vein in Rothermere v. Times ...(illegible) Ltd.⁽¹⁵⁾ a case in which the Court of Appeal upset the order of the judge and of the Master who had disallowed a jury and he went so far as to say (page 1017) :

"Every defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the defendant has ventured to criticize the Government of the day, or those who hold authority or power in a state."

In Williams v. Beesley⁽¹⁶⁾ an interesting and, I think, pertinent variation upon this view appears. In that case a plaintiff sued his solicitor for professional negligence. The plaintiff applied for a trial by a judge with a jury. The Master refused the order and his ruling was affirmed by a judge in chambers. The plaintiff then appealed to the Court of Appeal which reversed the judge's ruling and ordered that the trial should be with a jury. The solicitor in his turn appealed to the House of Lords and the decision of the judge in chambers was reinstated. Among other matters the Court of Appeal had given as one of the reasons for reversing the order of the judge the fact that the case raised issues of credibility, integrity and honour. It was pointed out before the House of Lords that the person whose honour and integrity were at stake was the defendant in the action not the plaintiff. In the leading speech in the case Lord Diplock said as follows at pate 1298 :

"As respects issues of integrity and honour, these may be a weighty consideration in ordering trial by jury at the instance of the party whose integrity or honour is impugned; but it is not a sufficient ground for ordering trial by jury against his wishes at the instance of the other party."

In the present case I find it difficult to see that the honour and integrity of the plaintiff are directly in issue at all. Certainly they are not put in issue by his own pleadings which disclose merely that he complains that he had been relegated in rank without good reason assigned; has not been confronted with any adverse reports upon his behaviour and has not been given an opportunity of presenting his own case against such relegation to the relevant authorities. The defence by contrast has pleaded in considerable detail the reasons why, according to the defendant, the plaintiff was reverted in rank. The view of the plaintiff's employer, allegedly derived from examination and other results in the training course and from his general behaviour, is summarised in the expression that he was "not officer material". That claim may or may not be justified by the facts but it carries nothing which might be regarded in any ordinary sense as an imputation against his integrity or honour. Indeed, if there emerges. in any way from any of the pleadings or from that background material to which I was referred in the course of the argument, in particular the newspaper cuttings annexed to the affidavit or Mr. Mayer, any imputations against the honour and integrity of any party those imputations are imputations levelled by the defendant against certain of the co-servants of his employer up to and not excluding the Commissioner of Police himself. What thus appears by way of hint or innuendo or surmise. though certainly not clearly stated even in the defence, is that the plaintiff's complaint is that he is an honest men cruelly ill-used by persons in authority over him whom he would seem to accuse of insensitivity, bias or possibly moral cowardice. I am told of course that the present pleadings are likely to be amended and that the statement of claim may then disclose allegations of a quite different sort from those which now appear there in support of the claim that natural justice was denied. That may be so but I cannot say what such altered pleadings will state or that it appears in the least likely from what has been put before me already that any such amendment will disclose allegations of moral turpitude levelled by the plaintiff against persons in authority over him. In short nothing put before me has persuaded me that there are any special considerations obliging a departure from the normal rule of trial by judge alone in such a case as this. Indeed, on the contrary, such information as I have been able to glean about the case generally from the pleadings and from the argument before me lead me to suppose that the fairest forum from the point of view of both parties will be a court presided over by a judge alone.

21. I turn finally to the question of discovery. The two files containing the document which are sought by way of discovery are confidential files kept by the Anti-Corruption Branch of the Police Force and the contents of which concern certain allegations made by the plaintiff of corrupt practices relating to selection of candidates undergoing the inspector training courses and in particular course No. 45 of 1968, the course which included the plaintiff himself. Objection is taken on behalf of the Attorney General to production of either of these files firstly on grounds of irrelevancy and secondly on grounds of Crown privilege. Crown privilege was duly claimed by the Colonial Secretary in his affidavit sworn on the 5th of December 1973. Counsel have referred me to a number of recent authorities in relation to the latter claim but as it seems to me the matter may be adequately disposed of by relation solely to the question of relevancy. Counsel agreed that the law on this topic is substantially that laid down by Brett L.J. in Compagnie Financiere Du Pacifique v. Peruvian Guano Company ⁽¹⁷⁾, in words which have been hallowed by incorporation in the text of Hal sbury where in Volume 12 paragraph 36 at page 26 the test of relevancy is stated as follows :

"A document relates to the matters in question in the action if it contains any information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of inquiry which may have either of those two consequences."

In the course of this judgment (page 63 of the Report) Brett L.J. had also said :

"In order to determine whether certain documents are within that description it is necessary to consider what are the questions in the action : a court must look, not only at the statement of claim and the plaintiff's case, but also at the statement of defence and the defendant's case".

I must ask therefore whether the documents of which discovery is sought are such that it is reasonable to suppose that they may contain information which may directly or indirectly enable a plaintiff to advance his own case or damage his adversary's case or which may lead to some train of enquiry which might have that effect. Can any confidential information contained upon either of these files relating to an inquiry, apparently instituted at the instigation of the plaintiff himself, have a bearing upon any matter in question in the action? If one were under the necessity of considering only the plaintiff's own pleadings the answer would be unhesitatingly in the negative. The rule of natural justice of which he claims a breach in his regard is quite clearly, as Mr. Thompson says, that rule enshrined in the maxim: "audi alteram partem". He says that he has been put down from his higher office either entirely without explanation or else without having been given a fair hearing in his own defence. The reply to this upon the pleadings is that he has on more than one occasions been given a fair and adequate hearing of his representations and has been informed of the reasons for his relegation. But for one matter, to which I will refer hereafter, the issue thus displayed between the parties is short and clear. To the issue whether his plea for reinstatement has been fairly heard, and whether the reasons for its refusal have been clearly explained, communications concerning the progress and the result of an independent administrative inquiry within the Police Department resulting from the plaintiff's allegations of corruption in that department appear on the face of it wholly irrelevant. Unfortunately the issue is not so simply to be disposed of. It is undoubtedly the case that in the defence the question of the plaintiff's allegations in respect of the training course which is touched so lightly and incidentally by the matter pleaded in paragraph 8 of the statement of claim, is taken up explicitly and it is pleaded that his allegations were fully investigated and were not substantiated. Mr. Jackson-Lipkin seizes upon this pleading and asks that it be read in conjunction with paragraph 4 of the Reply maintaining that when read together these pleadings have the effect as it were of drawing in the administrative investigation and its adequacy making it a "matter in question in the action". In this regard he seeks to make a distinction between a matter in issue in the action and a matter in question in the action the latter being the form of words employed in Order 24 rule 1. I doubt that the distinction is a valid one. Hal sbury in relation to these very words says on page 26 paragraph 36 of Volume 12 :

"The expression 'matter in question' means a question or issue in dispute in the action...."

But in any event, valid or not, it seems to me that the distinction is not one which is of great moment in relation to the present contention. Counsel for the plaintiff has made it clear that in his view the relevance, or possible relevance, of these documents to the questions in issue or the matters in question in the action is that they may tend to show whether or not the plaintiff's allegations have in fact been fully investigated and not substantiated as claimed in the defence. Once again the court is left to infer the true nature of the plaintiff's interest in discovery of these documents from a not very clearly formulated suspicion which may be detected in the words of his pleadings. What it seems to amount to is the suggestion that the plaintiff gave true information relating to corruption but that, for reasons which do not appear, it was either not dealt with at all or was dealt with in such a way that the information was misused or discounted and that he has been the sufferer by consequence in that he has been labelled by those in authority over him as a person given to the making of unfounded allegations. A further implication which might emerge from this (though once again nothing of the sort at anywhere clearly stated) is that this factor is one which must have been put together with anything else held in his disfavour in the making of the decision which resulted in his relegation in rank. Presumably therefore the value to the plaintiff of an inspection of such documents as may be contained upon the disputed files is that it may assist him towards clearing himself of so much of the imputations against him as may have arisen from any suggestions that he is a person given to wild allegations by showing that his reports about corruption were not only honestly made but fully substantiated in fact. In other words the suit between the parties as at present constituted would, on this interpretation of the pleadings, seek to draw in by a tortuous side current the validity of the entire administrative procedures instituted as a result of his complaints. I can see no warrant for such an extraordinary enlargement of the dispute. This court would in effect be asked to transform itself into a court of inquisition to test the bona fides and the validity of the methods employed by the Anti-Corruption Branch of the Police in investigating the plaintiff's complaints.

22. It seems to me that this line of inquiry would not only exceed the clear and modest compass of the plaintiff's actual claim but might very well in addition result in the court's being drawn, however, reluctantly, to the consideration of kinds and sources and degrees of evidence wholly unsuited to the procedures obtaining in a court of law. As it seems to me there is perhaps only one possibility relating to these disputed documents which might fairly, if realised, bring them within the ambit of documents relevant, and even vitally relevant, to the matter in question between the parties. Once again, it is certainly not something which is stated or even adumbrated upon the pleadings. Counsel for the plaintiff did however suggest in the course of the argument that the reason or part of the reason for the plaintiff's relegation may have been that as counsel put it he was "stirring up too much mud". If such indeed is the substance behind the plaintiff's distinctly oblique method of presenting his claim then it could perhaps be suggested that the disputed files may contain documents which either state or infer, or else would lead to the discovery of information which would show, that the Commissioner had exercised his powers in relegating the plaintiff to a lower rank on grounds which were not merely morally indirect but which were criminally reprehensible. I am happy to say that no such direct accusation has been put forward in the course of this hearing but in any event I have the assurance of Mr. Thompson, which I have no doubt that counsel for the plaintiff will accept as readily as I do myself, that there is nothing contained upon the files in his possession which carries any imputation of the kind. I have no doubt whatsoever that if such matter did exist Mr. Thompson would have been the first to draw the attention of the other side to it and indeed if there were a bare possibility of the existence of such turpitude at any responsible level in the whole chain of command connected with these inquiries and if even a hint of it appeared upon these files I am quite satisfied that the Attorney General would not now be before this court maintaining his present stand.

23. As to the ground of Crown privilege I confess that I am less happy about the arguments advanced before me in that regard by Mr. Thompson. I doubt very much whether the "class" privilege which he claims could be substantiated in relation to documents of this kind. Were it not for the view I have already taken in relation to relevancy I should certainly in any event have called for production of the files to examine the documents before finally deciding whether or not the claim of privilege was justly made. In the event however it becomes unnecessary to discuss that matter further.

24. For these reasons the appeal is dismissed.

Representation:

(1) (1962) H.K.L.R. 24.

(2) (1973) 1 Weekly Law Reports 448.

(3) 1 Drewry's Reports (1852-53) 617.

(4) (1911) 1 K.B. 410.

(5) (1846) 15 M. & W. 687.

(6) (1915) 2 K.B. 536.

(7) Vol. 2 K. & J. Reports (1855-56) page 753.

(8) De Gex Macnaghten and Gordon's Reports Vol. 4 732.

(9) 1 De Gex & Smale's Reports 164.

(10) Simon's Reports, Vol. 8 413.

(11) Young & Collyer's Reports, Vol. 3.

(12) (1887) 35 Chancery Division 117.

(13) (1882) 20 Chancery Division 365.

(14) (1966) 1 Q.B.D. 273.

(15) (1973) 1 All E.R. 1013.

(16) (1973) 1 W.L.R. 1295.

(17) (1882) 11 Q.B.D. 55.