Alick Au Shui Yuen v. Sir David Ford, Deputy To the Governor and Others
Read the full judgment text of on BabelCite. was delivered on 27 November 1990.
1. In view of the public interest in this matter, I propose to give this judgment in open court.
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HCMP002827A/1990 HEADNOTE Judicial Review - Section 12(2) Prisons Ordinance Cap. 234 - whether production of documents is necessary for fairly disposing of matter - Order 24 rules 8 & 13 - Public Interest Immunity. HCMP No. 2827 of 1990 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS _________________
______________ BETWEEN
____________ Coram: The Hon. Mr. Justice Kaplan in Chambers Date of Hearing: 12 November 1990 Date of Delivery of Judgment: 27 November 1990 ______________ J U D G M E N T ______________ 1. In view of the public interest in this matter, I propose to give this judgment in open court. 2. In this application for Judicial Review by Mr. Alick AU (AU). I have before me a summons dated 10th November 1990 which seeks an Order for specific discovery against all five Defendants. 3. I originally had before me a summons for specific discovery dated 24th October 1990 but this has been withdrawn and replaced by the one dated 10th November 1990. No point is taken about the lateness of this summons, but Mr. Huggins for the Independent Commission Against Corruption (ICAC) and the Attorney General made some points which stemmed from the absence of any affidavit in support of this summons. To these points I will have to return later. 4. As is well-known, Charles Warwick Reid (REID) was sentenced on 6th July 1990 to 8 years imprisonment by the Chief Justice for an offence under Section 10 of the Prevention of Bribery Ordinance Cap. 201. 5. On the 5th day of July 1990, the Deputy to the Governor, Sir David Ford, made an order under Section 12(2) of the Prisons Ordinance Cap. 234 which provided that if REID was sentenced to a term of imprisonment, he
6. AU is a solicitor who has been charged with offences in respect of which REID is a major Crown witness. AU has not been granted bail and is detained pending his trial for these offences. 7. On 7th September 1990, O'Connor J. granted AU leave to commence Judicial Review proceedings under the provisions of 0. 53 r. 3 of the Rules of the Supreme Court. The relief sought by AU in these proceeding is as follows:-
8. It will be seen from the relief claimed, and it was certainly made clear by Mr. McCoy in argument, that the crucial issue in this case is one of statutory construction. Although Wednesbury unreasonableness was also mentioned. I think it is common ground that this application for discovery is said to be necessary to mount the argument that the Order of 5th July 1990 was unlawful in that it did not come within the meaning of Section 12(2). Section 12 provides as follows:
9. Mr. McCoy also relied upon Section 9 of the Prisons Ordinance which provides as follows:
10. His argument in a nutshell is that Section 12(2) cannot be wide enough to cover the incarceration of a person for the whole of, or a substantial part of his sentence in ICAC custody. He submits that the words "attendance of a prisoner at any place" is a reference to some transitory movement, such as to attend a funeral or to go to a locus in quo. He says that the Section contemplates a movement from custody under the Prisons Ordinance and Rules to somewhere else, but in this case he alleges that REID has never been held under the Prisons Ordinance and Rules and thus the Section is inapplicable. He further argues that in this case it is clear that the Deputy to the Governor took into account consultations with ICAC whereas the Section only contemplates consultations with the Commissioner for Correctional Services. 11. Mr. McCoy says that the discovery is needed in order to make good the factual basis upon which he intends to argue that the Order of 8th July 1990 is ultra vires. 12. It is necessary to consider precisely what specific discovery is sought by this summons. 13. As against Sir David Ford
14. As against the Commissioner of Correctional Services
15. As against the ICAC
16. As against The Attorney General
And lastly 17. As against REID
18. Mr. McCoy submitted that the discovery sought would:
19. Mr. Andrew Li, QC who appeared for Sir David Ford and the Commissioner of Correctional Services submitted that I should consider the following stages.
Relevance and Necessity 20. Mr. Li pointed out that Mr. McCoy had submitted that the Applicant's case was concerned with the construction of Section 12(2). He said that three points of construction had been made in the course of Mr. McCoy's submissions.
21. In short, Mr. Li submitted that production of the documents sought in this summons was not necessary to mount these submissions of statutory construction. He conceded for the purposes of this argument that the documents were relevant in the Peruvian Guano sense. But he submitted that the Applicant had failed to show that these documents are necessary for the fair disposal of this matter under the provision of Order 24 rule 13. 22. Order 24 rule 13 which deals with production has to be contrasted with Order 24 rule 8 which deals with listing of documents. Under Order 24 rule 8 it is for the party objecting to discovery under rule 3, 7 or 7A of Order 24 to satisfy the court that discovery is not necessary or not necessary at that stage. This is made clear from a judgment of the English Court of Appeal in Dolling Baker v. Merrett (1990) 1 WLR 1205. 23. Order 24 rule 13(1) provides as follows:
24. In Dolling Baker at p. 1209, Parker, L.J said this:
25. Mr. Li also cited Lord Edmund Davies in Air Canada v. The Secretary of State for Trade (1983) 2 A C. 394 at p. 441, for further support for the proposition that necessity and not relevance is the test. 26. So the burden is on the Applicant to satisfy me the production of these documents "is necessary either for disposing fairly of the cause or matter or for saving costs". It is not sufficient to show that these documents are relevant. It is not enough to show that production is "desirable" to use the word mentioned by Mr. McCoy 27. Mr. Li submitted that the documents sought in this application do not satisfy the necessity test. He said that as this was a case which concerned the statutory interpretation of Section 12(2), the documents sought would not assist in that regard. Further, he submitted that if the documents sought could assist, the Applicant had not demonstrated that they would advance his case or damage the Respondents case. They may or may not but the onus had not been discharged. He further submitted that this application failed in limine and thus it was not strictly necessary to go and consider the claim to P.I.I. because the application had failed at the threshold stage. 28. Mr. Li did concede that the third point of statutory construction namely that Section 12(2) only operated on prisoners would require an evidential basis. However he submitted that the matter was clear because on 13th July 1990 the Secretary for Security had faxed the Applicant's solicitor in the following terms:
29. During the course of his submissions Mr. Huggins for ICAC and the Attorney General offered to identify all places in which REID had been detained and, whether or not he had been accompanied by officers of Correctional Services Department outside Murray Road Carpark Building from the time of the making of the Order on the 5th July 1990 to the first time REID had been brought to the ICAC detention centre after sentence on the 6th July 1990. After a very little prompting from me Mr Huggins agreed on behalf of ICAC to give this information as from the 30th March 1990 the date of REID's return from manila. By letter dated 15th November 1990 Herbert Smith & Co. who instructed Mr. Huggins wrote to the Applicant's solicitors Alsop Wilkinson (copied to my clerk) stating that REID had at all times been detained in the physical custody of ICAC save for the occasions specified in the letter. The letter goes on to confirm that:
30. The letter most helpfully concluded by stating that if it was thought that information provided was deficient in any manner (or was not in line with what I had intended to be provided) then Herbert Smith & Co. wished to know. On 17th November 1990 the 2nd Respondent filed a Notice admitting facts which mirror the matters contained in Herbert Smith's letter of 15 November 1990. Further the solicitors for the 2nd Respondent served on the Applicant's solicitors copies of certain C S D records. 31. On the question whether there was any communications between ICAC and the Governor Mr Li helpfully conceded that there were such communications and thus Mr McCoy can at the substantive hearing rely upon that admission in support of his arguments on the statutory construction Section 12(2). 32. Mr. Huggins very helpfully reduced his client's objections to specific discovery into tabular form. 33. As to the immunities granted to REID he makes the point that there is no affidavit filed on behalf of the Applicant that indicates why these documents are relevant to the construction of Section 12(2). He says that these are clearly irrelevant to these proceedings although he conceded that at the trial or trials when REID is a witness they may take on a new significance. He relies on Mr. Sissons affidavit dated 10th November 1990 wherein it is stated that "neither the place nor the condition of REID's detention form any part of any immunity from prosecution given to REID by the Attorney General". Further in a letter dated 8th November 1990 from Herbert Smith to Alsop Wilkinson, it is stated:
34. I fail to see now it can be said that the immunities are necessary documents for the purposes of this application for Judicial Review. 35. As to the correspondence "leading up to the Order" or "relating to the Order", I fail to see what this can add to the argument that the Order does not come within the meaning and intendment of Section 12(2). Further documents after the date of the Order would be wholly irrelevant and unnecessary. 36. If I was against him on this class of documents, which I am not Mr. Huggins would himself wish to argue that this class was covered by P.I.I. 37. As to the correspondence relating to the immunities Mr. Huggins submits that this is irrelevant to the issues in this application. Further, Mr. Sissons has dealt with the point. I agree that this class of documents cannot be considered necessary for the application. 38. As to correspondence relating to the undertakings this is covered by Herbert Smith's letter dated 8th November 1990 in which they stated on instructions:
39. This answer disposes of this class but in any event. I would not consider such documents necessary even if they did exist. 40. As to the documents relating to the surrender moneys Mr Huggins submits that they are irrelevant and in any event there is no affidavit showing why or now they are said to be relevant. Further they are potentially post 5th July 1990 and thus not even relevant let alone necessary. I agree. 41. As to the written record of REID's movements this has been covered now by Mr. Huggins undertaking and Herbert Smith's letter dated 15th November, as well as by the Admissions made by 2nd Respondent. 42. Finally as to REID's statements save those already supplied Mr. Huggins submits they are irrelevant and potentially post 5th July 1990. I agree that they are irrelevant and not necessary for this application. Mr. Huggins accepts that in due course all unused materials will have to be considered in the light of the guidelines laid down in respect to them. But the first trial is some way off and it is too soon to consider that issue. Further this is an ongoing investigation and I have noted that there are some blank pages and blanking out of part of REID's statements that have been supplied. Mr. Sissons states in paragraph 9 of his affidavit that investigations are continuing in relation to allegations made by REID in relation to other persons. Mr. Huggins added that the Applicant already has all REID's statements about him in relation to the charges and any request to go further would also be met by claim for P.I.I. if his statements were considered relevant and necessary. In my judgment they are neither relevant nor necessary in relation to the issues in this application for Judicial Review. 43. For all the reasons set out above I have no hesitation in concluding that none of the documents sought against any of the Respondents (save the Order which has already been supplied) are necessary for disposing fairly of this matter or for saving costs. In coming to that conclusion, I take into account that pursuant to Mr Huggins undertaking, Herbert Smith has supplied the necessary information relating to the detention of REID and his movements. Further, Mr. Li has conceded that ICAC did have communications with the Governor prior to the making of the Order. 44. Had I thought that the production of these documents or some of them were necessary for fairly disposing of this matter I would have had to go on and consider the claims to P.I.I. However, I am wholly satisfied that the arguments based on Section 12(2) which Mr. McCoy was good enough to rehearse with me can be made on the basis of the material now before the court without the need for further discovery. The point is not complicated and it is either a good point or a bad point. None of the documents sought in this application for specific discovery are going to advance that point one iota. Section 12(2) either covers a detention such as this or it does not. I am further not persuaded that any of these documents will add at anything to the Applicant's arguments on locus standi. P.I.I. 45. In the light of my judgment it is not strictly necessary for me to go into the question of P.I.I. because I have held that the Applicant fails on the threshold of necessity. However it may help if I say this on P.I.I. I am not persuaded that the Financial Secretary's certificate claiming P.I.I. is wide of the mark or overstated. I accept that the court is not bound by the certificate, but I accept Mr. Li's submission that the certificate is cogent. 46. Corruption is a serious matter and it is very much in the public interest that investigations into corruption be not hampered and that the guilty be brought to justice. Some of the documents sought are at the highest level in Government and are to be protected as a class. It is essential that materials relating to ongoing criminal investigations should not be disclosed. 47. The certificate being in my judgment cogent I should have proceeded to carry out the balancing exercise without the benefit of looking at these documents Carrying out the exercise, I have not the slightest doubt that the balance comes down heavily in favour of the public interest in not ordering production and I would have so ruled. 48. I was referred to many of the leading cases on the subject to P.I.I. and I intend no disrespect to counsel by not referring to the passages which they helprully cited to me. Had I been satisfied that the documents were necessary I would have gone into the issue of P.I.I. in more detail, but I do not wish to overburden this already lengthy interlocutory judgment. Conclusions 49. I. therefore, propose to dismiss this summons for specific discovery. It is conceded that if this summons fails then the same fate should be accorded to the summons for interrogatories which I also dismiss. I will hear counsel on the question of costs and I will also hear them as to what further directions (if any) are required in order to ensure that this application for Judicial Review comes on at the earliest possible opportunity.
Representation: McCoy instructed by Alsop Wilkinson for Applicant Mr. Andrew Li Q.C. and Mr. Y.L. Wong instructed by Allen and Overy for 1st and 2nd Respondents Mr. A. Huggins instructed by Herbert Smith for 3rd and 4th Respondents 5th Respondent in person |