Gerald Arthur Harknett v. M.D. Hill Esq Permanent Magistrate

Case No.HCMP 1484/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP001484/1983

M.P. No. 1484/1983

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

	IN THE MATTER of S.17A of the Prevention of Bribery Ordinance Cap. 201
	and
	IN THE MATTER of an APPLICATION FOR JUDICIAL REVIEW BY WAY OF CERTIORARI
	______

BETWEEN

	GERALD ARTHUR HARKNETT	Applicant
	and
	M.D. HILL ESQ.
	PERMANENT MAGISTRATE	Respondent
	_______

Coram: Hon. Liu, Jackson-Lipkin & Barnes JJ.in Full Bench

Date: 1st August, 1983

__________

JUDGMENT

__________

Liu J.

1. Pursuant to leave granted, the Full Bench was moved by the Crown for an Order of Certiorari to quash a decision of a Magistrate made on the 23rd June 1983 on the ground that he acted without jurisdiction.

2. The facts are few. Under S.17A(1) of the Prevention of Bribery Ordinance, on the 23rd March 1983, the Commissioner of I.C.A.C. applied to the same learned Magistrate for a notice in writing requiring a person who was the subject of an investigation under the Ordinance to surrender to the Commissioner all travel documents in his possession. A notice in the form of an order was duly issued, served and complied with. The suspect had earlier been arrested on the 17th March and thereupon surrendered all his travel documents to I.C.A.C.. Subsequently, the suspect sought a review of the said order, and I.C.A.C. was accordingly advised. The suspect's application for a review was heard on the 23rd June 1983. In fact, the suspect had offered substantial cash bail for the temporary return of his travel documents, which I.C.A.C. declined "whilst the notice (was) still in force." At the hearing, the suspect's application was amended, apparently without any objection from the Crown, to a prayer for a withdrawal and revocation of the said order. The learned Magistrate seized upon the suspect's application and disposed of it under S.40(2) (c) of the Interpretation and General Clauses Ordinance.

3. Before us, Mr. Lee sought to rely also on S.46(c) of the Interpretation and General Clauses Ordinance.

4. Sections 17A(1) and (6) of Prevention of Bribery Ordinance read as follows:-

	"(1)	A Magistrate may, on the application of the Commissioner, by written notice require a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance to surrender to the Commissioner any travel document in his possession."
	"(6)	A travel document which is surrendered to the Commissioner under this section may be detained for 6 months from the date on which it was surrendered and may be detained for a further months if a Magistrate, on application by the Commissioner, is satisfied that the investigation could not reasonably have been completed before the date of such application and authorizes such further detention."

5. Sections 40(1) and (2)(c) and s.46 (c) of the interpretation and General Clauses Ordinance are in these terms:-

"	40(1)	Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.
	(2)	Without prejudice to the generality of subsection (1), where any Ordinance confers power--
		(c)	to approve any person or thing, such power shall include power to withdraw approval thereof."
"	46.	Where any Ordinance confers power upon any person to make, issue or approve any proclamation, order, notice, declaration, instrument, notification, licence, permit, register or list, such power shall include power -
		(c)	to withdraw approval of any proclamation, order, notice, declaration, instrument, notification, licence, permit, register or list so approved."

6. Mr. Graham submitted that once an issued S.17A notice was complied with by the surrender of the suspect's travel documents, the same had become spent and was no longer open to be withdrawn and that the Commissioner's right to retain the surrendered travel documents up to a period of 6 months under S.17A(6) Cap. 201 could not be challenged except on an application for Judicial Review. I was impressed by counsel's powerful arguments, but in the circumstances of the instant case, I found no warrant for expressing any concluded view.

7. Rightly or wrongly, the learned Magistrate acceded to the application of I.C.A.C. explicitly for a S.17A notice in the form of an order for a designated period of 6 months, and an order was accordingly made for the surrender of the suspect's travel documents in his possession for that period. The order was and vas understood to be effective for that very period. Not only was the suspect enjoined to surrender his travel documents upon the service on him of the said order, but he was ordered to continue to so surrender his travel documents for the full period of 6 months thereafter. I.C.A.C. were themselves seeking to rely on the subsistence of that order for refusing an offer of cash bail. The order made by the learned Magistrate or. the 23rd March had plainly not been spent by the time when the suspect's application for a withdrawal was heard. In my view, the learned Magistrate had jurisdiction to entertain an application to withdraw the said S.17A notice, and even if the learned Magistrate had not been endowed with such jurisdiction by S.40(2) (c) of the Interpretation and General Clauses Ordinance alone, I would have felt constrained to refuse the Crown's application, in the exercise of my discretion under 0.53, on account of the unambiguous language of S.46(c) of the same Ordinance.

Jackson-Lipkin J.

8. I agree and have nothing to add.

Barnes J.

9. I agree.

(B. Liu)	(M.H. Jackson-Lipkin)	(E.C. Barnes)
Judge of the High Court	Judge of the High Court	Judge of the High Court

Representation:

Mr. Peter Graham and D. Kiltour, Crown Solicitor for the Applicant.

Mr. Martin Lee Q.C.with Mr. Alan Hoo, instructed by P.K.H. Wong for passport holder.