Gregory Michael Hall v. The Commissioner of the Independent Commission Against Corruption
Read the full judgment text of HCMP 986/1986 on BabelCite. This High Court CFI judgment.
1. The applicant, Gregory Michael Hall, an expatriate jockey licensed by Royal Hong Kong Jockey Club, seeks :
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IN THE HIGH COURT OF JUSTICE MISCELLANEOUS PROCEEDINGS NO. 986 OF 1986 _____________
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________________ Coram: Hon. Power, J. in Court Dates of hearing: 1st to 3rd July 1986 Date of delivery of judgment: 25th July 1986 ___________ JUDGMENT ___________ The Relief Sought 1. The applicant, Gregory Michael Hall, an expatriate jockey licensed by Royal Hong Kong Jockey Club, seeks :
2. The Commissioner in his first affidavit states that on 25th March 1986 "a file of evidence was forwarded to the Royal Hong Kong Jockey Club which file provided details of the I.C.A.C. investigation concerning Mr Hall and also described certain malpractices connected with horse racing". This file contained a transcript of an interview which Mr Swift and . Mr Finlay had with the applicant on Thursday the 20th February 1986. The Facts 3. The interview with the applicant was conducted between 5 a. m. and 3:45 p. m. on the 20th February 1986. It ceased at 3:45 p. m. when the applicant was cautioned and told that he was not obliged to say anything unless he wished to do, and that what he said may be taken down and given in evidence. In this statement the applicant said :
4. On 2nd April 1986 the applicant received a letter from the Jockey Club Racing Secretary preferring 5 charges against him alleging three infringements of Rule 65(i)(c) and 2 infringements of Rule 65(i)(a) of the Rules of Racing. These rules states:
5. The first charge alleges that contrary to Rule 65(i)(c) "on two occasions between the 1st October 1985 and the 9th of November 1985 you did place bets on a horse in a race through the agency of one Wong Yick-fook, a personal acquaintance". It appears that Wong Yick-fook is the Johnny Wong to whom the applicant referred in his statement. 6. The 2nd charge, also under Rule 65(i)(c), charges that on divers occasions between the 19th September 1985 and 19th February 1986 he "did place bets on races through the agency of one Jimmy Cheng, through the agency of one Jerry Sung and through the agency of one Willy Chow". The particulars of this charge state that admissions in this regard were made to Mr Swift at the interview on 20th February 1986. 7. The third charge, under Rule 65(i)(a), alleges that "on divers occasions between 19th September 1985 and 19th February 1986 you did provide information on several occasions as to horses in the stable and for which you were engaged to ride to one Peter Seng who was neither the owner nor trainer of any of the said horses". The particulars state that details of this charge were admitted by the applicant to Mr Swift in the interview of the 20th October 1986. 8. The fourth charge, under Rule 65(i)(a), alleges that "some part of the deposits of the under-mentioned sums of money (6 omounts were particularized) to the credit of account no. 018-422600-001 with the Kowloon Branch of the Hongkong & Shanghai Banking Corporation maintained in the joint names of your wife Mrs. Kim G. Hall and yourself were moneys received from persons to whom you provided information as to horses in the stable and for which you were engaged to ride which persons were neither the owner nor trainers of such horses". This charge was also particularised as having arisen out of admissions made to Mr Swift on 20th February 1986. 9. The 5th charge, under Rule 65(i)(c), alleges that "some part of the deposits of (the aforesaid) sums of money set out to the credit of the account No. 018-422600-001 with the Kowloon branch of the Hongkong & Shanghai Banking Corporation maintained in the joint name of your wife, Mrs. Kim G. Hall and yourself were-moneys received from persons who had at your request placed bets on your behalf. " This charge also was particularized as having been admitted by him, to Mr Swift on 20th February 1986. 10. A Synopsis of Evidence provided to the applicant on 9th April 1986 indicates that the evidence as to charges 2 to 5 4s based upon admissions made in the Interview on 20th February and that evidence thereon will come from Mr Finlay and Mr Swift. The synopsis states that the evidence as to the first charge will come from a Mr Johnny Wong Yick-fook. It appears that the statement of applicant will not be used as evidence in proof of this charge. 11. The applicant filed two affidavits. In the first he said that throughout the interview he had "assumed that all questions put to me related to suspected crimes being investigated and not to extraneous matterT.C.Had I been aware that the questions were connected with alleged breaches of the Rules of Racing, I would not have answered to them". 12. On 21st June 1986 Mr Geoffrey Thomas Barnes, the Commissioner of the Independent Commission Against Corruption filed an affidavit in which he set out his duties under section 12 of the Independent Commission Against Corruption Ordinance, Cap. 204. He said that the Jockey Club is listed as a public body in the Schedule to the Prevention of Bribery Ordinance, Cap. 201 and that the Operations Department of the I.C.A.C. "commenced their inquiries in October 1984 and approximately one year later informed the Royal Hong Kong Jockey Club of the investigation and requested its co-operation ... ". He said that thereafter there was regular liaison between the I.C.A.C. and the Club and that Sir John Archer, the Chief Executive of the Club, specifically requested the cooperation of the I.C.A.C. to assist it in eliminating corrupt practices from local racing activities by supplying it with information on suspected racing malpractices together with supporting evidence upon which the Club would be able to act. As regards the applicant, he said:
13. Mr Swift filed an affidavit in which he said that the applicant was not under arrest when he was conducting the interview. He said that at the commencement of the interview, he told the applicant that he did not have to answer any of the questions put to him if he did not want to and that, at any time he could request that a solicitor be present. 14. The applicant filed a further affidavit in which he said that he was under the impression that he was not free to leave the I.C.A.C. during the interview and that he was not told that he did not have to answer any questions and that he could, at any time, ask for a solicitor to be present. He said that he was given the impression that he was not entitled to see a solicitor. He said that his attitude throughout the interrogation was one of frankness because he felt that he had committed no criminal or corruption offence, and that he was left with the impression that everything said to the I.C.A.C. Officers was in confidence. 15. On the 28th June Mr Barnes filed a second affidavit in which he said that since the 1st January 1982 reports on misconduct allegedly committed by 1,061 Crown servants had been forwarded by the I.C.A.C. to the Secretary for the Civil Service and Heads of Government Departments on the advice of the I.C.A.C. Operations Review Committee, a non-statutory body whose members are appointed by the Governor. He said that the procedure for the referral of such matters is governed by the third term of reference of the I.C.A.C. Operations Review Committee which authorizes the Committee:-
He said that the practice is for a report on all completed operations to be formally referred to the Operations Review Committee for advice and that, as regards the present case, members of the Operations Review Committee were informed of the progress of the investigation into allegations of malpractice concerning the Royal Hong Kong Jockey Club at meetings held on the 14th March, 23rd April and 23rd May, 1986. He said that the last meeting was specifically informed that files in respect of the applicant, and others, had been submitted to the Royal Hong Kong Jockey Club in respect to offences against the codes of racing but that, as there are other aspects of the investigation concerning the jockey Club which have not yet been concluded, a report has not yet been formally referred to the Operations Review Committee for its advice. 16. To what use can the information in this affidavit properly be put? The reports of misconduct to which the affidavit refers all relate to "Crown -servants". Section 12, which sets out the duties of the Commissioner, singles out such persons for special mention in sub-section (c) which states that it is the duty of the Commissioner "to investigate any conduct of a Crown servant which, in the opinion of the Commissioner, is connected with or conducive to corrupt practices and to report thereon to the Governor". (The emphasis is mine. ) The Commissioner is required by the terms of s.12(c) to pass information regarding Crown servants to the Governor. He must, unarguably, have lawful authority to do so in such cases. There is no such provision relating to persons, such as the applicant, who are not Crown servants. Whether or not it be proper for the Commissioner to pass information to the Operations Review Committee concerning such persons is in my view arguable. However that may be the applicant's file was not passed to the Jockey Club pursuant to any recommendation of the Committee. The Commissioner, it is clear, passed it to the Jockey Club before informing the Committee that he had done so and the charges were not brought because of any advice from the Committee. 17. The final affidavit was from Mr John Robert Locking, the General Manager of the Royal Hong Kong Jockey Club who gave details of the enormous public interest in horse racing in Hong Kong and set out figures showing the substantial public attendance at race meetings and the colossal betting turnover. The Justification for Disclosure :'"lawful authority of reasonable excuse" 18. Section 30(1) of the Prevention of Bribery Ordinance, Cap. 201 states:-
It is the contention of Mr Robert Tang, Q.C., who appears with Mr Bernard Whaley for the respondent and of Mr Charles Ching, Q.C., who appears with Mr William Stone for the Jockey. Club, that the information was disclosed by the Commissioner with lawful authority or reasonable excuse. 19. There is no doubt in my mind that the applicant believed that he was giving his statement in confidence to the officers of the I.C.A.C. Mr Tang submitted, correctly in my view, that any argument against disclosure based solely on confidentiality must fail. Let it be said immediately, however, in fairness to Mr Litton, Q.C., who appeared with Mr Gordon Hampton for the applicant, that he did rest his argument upon this basiT.C.Mr Litton referred, again correctly in my view, to confidentiality only in so far as it was one of the matters to be weighed when dealing with public interest immunity. 20. Mr Tang firstly referred to section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 which provides:
He submitted that the I.C.A.C. Ordinance was enacted because the legislature considered it vital to arm itself with a more effective weapon to fight corruption. He submitted that the object of the legislature, to suppress corruption, must be borne in mind when interpreting the Ordinance. He pointed to the fact that the Jockey Club is, by virtue of the Schedule of the Prevention of Bribery Ordinance, a public body and that its employees and members are, therefore, by virtue of the definitions of "public body" and "public servant" in s.2 of the Prevention of Bribery Ordinance, public servants. It was not, however suggested that jockeys, who are licensees of the Jockey Club, are also employees thereof and consequentially public servants. They are not, further, as I have already noted, "Crown servants" to whom section 12(c) of the I.C.A.C. Ordinance applies. 21. S. 4 of the Prevention of Bribery Ordinance which makes it an offence for a public servant to solicit or accept an advantage on account of his performing any act in his capacity as a public servant does not apply to a jockey. However s.9 (1)(a) of the Ordinance which makes it, an offence for any agent, without lawful authority or reasonable excuse, to accept any advantage as an inducement to do any act in relation to his principals business does, I am satisfied, have application to a jockey in relation to acts which he does when employed by an owner to ride. 22. Section 12 of the I.C.A.C. Ordinance provides:
23. Mr Tang relied firstly on section 12(a). He submitted that the word "corrupt practices" used in s.12(a) covered a much wider range of conduct than that which would constitute offences under the I.C.A.C., the Prevention of Bribery Ordinance and the Corrupt and Illegal Practices Ordinance which are referred to in s.12(b) ("the relevant ordinances"). He could not, to my surprise, given that he was appearing for the Commissioner of the I.C.A.C., be drawn into suggesting a definition for the words corrupt practices". He did, however, submit that they must be given a very wide meaning and must be held to encompass activities which are not criminal. (The emphasis is mine. ) He appeared to be contending that they cover practices which, to take one of the wider definitions in the Shorter Oxford English Dictionary, lead to "moral deterioration". He argued for a wide meaning as it was his contention that, as the Commissioner has a duty to receive and consider complaints alleging corrupt practices, i.e., according to his argument, practices involving any wrong doing, and to investigate such complaints, he must have lawful authority to pass on to public bodies information which will enable them to identify and deal with persons who have been involved in such practiceT.C. 24. I am satisfied that the legislature did not intend that the words be given anything like as wide a meaning as was contended for. 25. Having considered the relevant ordinances and the offences specified therein I am satisfied that, if one were required to apply a dictionary definition to the term "corrupt practices" used in section 12(a), it would have to be defined as practices which involve the "preversion of integrity by bribery or favour". The term can, however, I am satisfied only be defined with proper certainty by saying that it refers to practices which involve the commission of offences under the relevant ordinances. 26. I am satisfied that s.12(a) gives no lawful authority to the Commissioner to disclose information as to any wrongdoing whether or not it involves corruption of the kind dealt with by the relevant ordinances. 27. Mr Tang went on to argue that, even if section 12(a) gave no warrant to the Commissioner to disclose the information, he had lawful authority so to do by virtue of section 12(b) which requires the Commissioner to investigate alleged or suspected offences under the relevant ordinances. He submits that if, having uncovered evidence of such offences, he is satisfied that the alleged offender can be properly dealt with by a disciplinary tribunal, he has lawful authority to furnish to that tribunal information to allow it to deal with the alleged offender. In the present case, he submits that the statement by the applicant involved admissions of offences under section 9 of the Prevention of Bribery Ordinance and that, the Commissioner having taken a decision not to institute criminal proceedings, it was lawful for him to pass the information to the Jockey Club so that the Stewards could deal with the alleged offender. 28. I am satisfied as to the correctness of this argument as long as it is not meant to be suggested thereby that the Commissioner has a discretion to disclose all of the information gathered in the course of the investigation. I am satisfied that when the Commissioner purports to be disclosing information to a tribunal under the authority of s.12(b) the onus lies upon him to demonstrate that his action was taken to allow the tribunal to deal with an alleged offender for acts which constitute an offence under one of the relevant ordinanceT.C.. I shall for the purpose of brevity refer hereafter to such acts as "corrupt behaviour". We are in the present case, as I have already indicated, concerned with alleged corrupt behaviour under the Prevention of Corruption Ordinance. 29. Has the Commissioner so demonstrated in the present case? He stated in his affidavit, paragraph 11, that a decision having been made not to institute criminal proceedings against the applicant, "thereafter on 25th March 1986, a file of evidence was forwarded to the Royal Hong Kong Jockey Club which file provided details of the I.C.A.C. investigation concerning Mr Hall and also described certain malpractice connected with horse racing. The material was forwarded under the provision of section 12 of the Independent Commission Against Corruption Ordinance, Cap. 204, in particular sub-sections (e) & (f) thereof, and having regard to section 30 of the Prevention of Bribery Ordinance, Cap. 201. This statement indicates to me that the file was handed to the Jockey Club to allow it to take whatever action it saw fit. There is nothing to indicate that it was handed over for the specific purpose of a prosecution by the Jockey Club of the applicant for alleged corrupt behaviour. It was suggested that the above approach to paragraph 11 is unfairly narrow and that, when it is read with paragraph 7 of the affidavit, which states that Sir John Archer requested the cooperation of the I.C.A.C. to assist in eliminating corrupt practices from local racing, it is clear that the Commissioner was saying that the file was handed over so that the applicant would be dealt for activities which constituted offences under the Prevention of Bribery Ordinance. I am not satisfied that this meaning can properly be given to paragraphs 7 and 11. If this had been the case it would have been easy for the Commissioner to have said so. What the Commissioner said, in paragraph 11, was that the material was forwarded under the provisions of section 12 in particular sub-sections (e) and (f) thereof. 30. The first of the sub-sections upon which the Commissioner particularly relies, s.12(e), places a duty on him to instruct, advise and assist on ways in which corrupt practices may be eliminated and the second, s.12(f), enjoins him to advise heads of public bodies of changes in practices and procedures to reduce the likelihood of the occurrence of corrupt practices. When paragraphs 7 and 11 are read together it seems to me clear that what the Commissioner is saying is that he forwarded the file of the investigation to the Joekey Club to keep it up to date with the investigation and to allow it to take whatever action it saw fit to reduce and eliminate corruption. 31. It is argued both by Mr Tang and by Mr Ching that, even if this was the purpose for which the file was forwarded, it was forwarded with lawful authority as the Commissioner is enjoined to instruct and advise as to the reduction and elimination of corruption and this must involve the passing of information about corruption. This approach is, I consider, much too broad in relation to information involving specific instances of corrupt behaviour. I am satisfied that, with regard to corrupt behaviour, the Commissioner only has lawful authority to disclose information by virtue of s.12(b) and that this is limited to such information as is necessary to ensure that an alleged offender is prosecuted for that behaviour. 32. Mr Tang submitted that an anomalous situation might arise in that the Commissioner might disclose information to a tribunal so that it would prosecute for corrupt behaviour and the tribunal might then decide to proceed with a lesser charge not involving such behaviour. That does not seem to me to be to the point. We are concerned when considering lawful authority not with what the tribunal does but with whether the Commissioner has established that he had such authority to disclose the information. The Commissioner has not established to my satisfaction that he had lawful authority to disclose the information. 33. Mr Tang went on to submit that, even if there was no lawful authority, there was reasonable excuse. He submitted that any disclosure which is in the public interest is a disclosure with reasonable excuse and that this disclosure was in the public interest as it is in that interest that there be clean racing and that dishonest, corrupt and misbehaving jockeys be dealt with. This submission, if correct, would allow the Commissioner to cast a very wide net. He would have reasonable excuse to pass information, gained in the course of enquiries, to the Jockey Club to enable it to discipline dishonest and misbehaving jockeys. It seems to be argued that the information could relate to misbehaviour of any kind by a jockey. I am satisfied that this approach is much too wide. If it was correct it would mean that there would be virtually no fetter upon the release of information which the Commissioner gathered in the course of an investigation. 34. It is it is true, difficult to say exactly what would constitute "reasonable excuse". I am, however, satisfied that the legislature never intended that the words should bear a meaning so wide that reasonable excuse could be established, in a case such as we have here, simply by suggesting that the information was being disclosed to help keep racing clean. Where corrupt behaviour is involved and the Commissioner has disclosed information to a tribunal, I am satisfied that no question of reasonable excuse arises. It is for the Commissioner in such circumstances, under s.30(1), to establish lawful authority and he does so by establishing that he disclosed only such information as was necessary to enable the alleged offender to be dealt with for that corrupt behaviour. 35. Whether or not the disclosure was in the public interest must, of course, be considered in the context of a claim of public interest immunity to which I now turn. Public Interest Immunity 36. The matter in issue when considering a claim of public interest immunity is not whether the Commissioner had lawful authority or reasonable excuse to disclose the information but whether it is in the public interest that he discloses it to allow the Jockey Club to bring proceeding against the applicant. 37. What, I am satisfied, must be asked is whether the work of the Commissioner is likely to be impeded :
Before answering these questions it is material to determine whether the Jockey Club is charging the applicant with offences which involve corrupt behaviour. 38. In the first charge and the second charge it is alleged that the applicant used other persons to place bets on races in which he was riding. I am satisfied that these offences do not involve corrupt behaviour. 39. The third charge is that the applicant provided information on several occasions as to horses which he was engaged to ride to one Peter Seng who was neither the owner nor trainer of the horse itself. I am satisfied that this offence does not involve corrupt behaviour. 40. The fourth charge is that the applicant received moneys from persons to whom he provided information as to horses which he was engaged to ride which persons were neither owners nor trainers of such horses. It is suggested by Mr Tang that proof of this charge, as particularized, involves proof of corrupt behaviour of the kind dealt with by section 9(1)(a) of the Prevention of Bribery Ordinance. This section makes it an offence for any agent, without lawful authority or excuse, to accept any advantage as a reward for doing any act in relation to his principal's affairs. 41. It was submitted for the applicant that there was no evidence that he had committed any such offence as such an offence must involve the doing of an act adverse to the interest of his principal. It would be unthinkable, it was argued, to suggest that because a person accepts money from a third party to try harder, he and the third party commit an offence. It was submitted that, if the applicant had provided such information, he would have been doing no act adverse to the interest of his principal as he would, thereafter, have been doing everything he could to ensure the horse won. Even if it be right that the act must be adverse to the interest of the principal this argument is much too facile. 'Information that a horse is likely to win is given to a third party so that that party can place bets on the horse. This clearly is against the interest of the owner as it lowers the odds. Indeed, if information is given to a substantial betting syndicate the odds are likely to be very much lowered. Proof of the particulars of the fourth charge, I am satisfied, involves proof of facts which would constitute corrupt behaviour i.e. an offence under section 9(1)(a) of the Prevention of Bribery Ordinance. 42. The 5th charge is that the applicant deposited money in a bank account received from persons who had, at his request, placed bets on his behalf. This is similar to the 1st and 2nd charges and, again, it does not appear to me to involve proof of facts which would constitute corrupt behaviour. 43. I turn firstly to consider the weight that should be given to "confidentiality". I am satisfied that the position is correctly stated by Lord Cross in A. Crompton Limited v. Customs & Excise(1) at 433 as follows:
44. The recent cases dealing with public interest were referred to by Hunter, J. in Khan v. O'Dea and Shroff(2) and I found his analysis thereof of great assistance. I am in complete and respectful agreement with his conclusion that:
He went on to say that:
He was, of course, in that action dealing with disclosure in civil proceeding not, as in the present case, disclosure for the purpose of disciplinary proceedings. 45. Lord Oliverin Neilson v. Laugharne (3) at 751 said:
Lord Oliver was also dealing with civil litigation but the principle is nonetheless clear. The public interest in the administration of justice, which demands a disclosure of all relevant material, must be balanced against a competing public interest in withholding that material. 46. Considerable weight must, in my view, be given to the argument that the balance in favour of disclosure will be tipped to a. greater extent if the material is being sought to pursue a prosecution for criminal behaviour. Lord Oliver stated the question again, at 752:
47. The considerations canvassed in Peach v. Commissioner of Police of the Metropolis(4), are also material when considering the 2 questions I have posed. Cox, L. J. at 1090, when dealing with statements as to which the Commissioner of Police claimed privilege on the ground of public interest, considered it material that the statements must "have been made on the assumption that disclosure to the Coroner was highly likely". 48. The argument against disclosure is that the public, unless it can feel confident that information provided will be treated with absolute confidentiality, will not be forthcoming with information and that this will seriously hamper the work of the I.C.A.C. and, thus, adversely affect the attainment of the legislature's purpose. 49. Clearly, any person giving a statement to the Commissioner of the Independent Commission Against Corruption must know that any statement he makes with regard to corrupt behaviour, is "highly likely" to be used for the purpose of prosecuting persons for that behaviour. 50. The fact that such information is used before a tribunal rather than a court could hardly deter others from providing similar information. I am satisfied that the work of the I.C.A.C. will not be hampered by the disclosure of such information and that it is in the public interest that the Commissioner discloses information to the Jockey Club to be used by it to prove corrupt behaviour which, in the present instance, involves disclosure of information relating to the 4th charge. 51. Clearly the same considerations do not apply to information that does not concern corrupt behaviour. The work of the Commissioner will, I am satisfied, be gravely prejudiced if he does not treat such information with strict confidentiality. 52. I hold that the Commissioner can disclose only such information as is necessary to enable the Stewards to deal with corrupt behaviour. The applicant is entitled to the declarations sought except as to information relevant to proof of the 4th charge.
Representation: Mr Henry Litton Q.C. and Mr Gordon Hampton (Hampton, Winter & Glynn) for the Applicant Mr Robert Tang, Q.C. (on fiat) and Mr Bernard Whaley (Crown Counsel) for the Respondent Mr Charles Ching, Q.C. and Mr W. Stone (J.S.M. ) for the interested party (1) (1974) A C. 405 |