Re Ng Wai Chung

HCMP002155/1983

Criminal law - Section 17A of Prevention of Bribery Ordinance - Further detention of travel documents - Whether Crown's application to magistrate to be ex parte or inter partes - Extent of magistrate's discretion - Specifying duration of order - Judicial Review - Breach of natural justice - Certiorari

The applicant sought judicial review of the decision of a magistrate who, on being satisfied in ex parte proceedings that I.C.A.C. could not reasonably have completed its investigation by then, made an order for the further detention of the applicant's travel documents under section 17A(6) of the Prevention of Bribery Ordinance, Cap. 201. The Crown contended that not only had the magistrate been entitled to proceed ex parte, but also that once he was satisfied I.C.A.C. could not reasonably have completed its investigation, he must make a further detention order, there being no discretion in him to refuse such order on account o?factors personal to the applicant such as the need to travel overseas to earn his livelihood.

No particular period was specified for the duration of the order, but the Crown contended this did not matter as it must be for three months by virtue of the provisions of section 17A(6).

The court declined to follow the decision in J.V. Prendergast (the Deputy Commissioner of I.C.A.C.) v. Peter Chan (1975) Criminal Appeal No. 768

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Rhind, J.

Date: 12th October, 1983

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JUDGMENT

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1. It is one of the proud boasts of our criminal justice system that generally the courts will not deprive a man of his liberty or property without first having given him the opportunity to make representations. Overriding considerations of common sense do, however,require that exceptions be recognized to this general proposition

2. One such exception which immediately springs to mind is the situation relating to search warrants.  The whole object of surprise would be lost if the suspect were given the opportunity of going to Court before his goods were seized.

3. Another such exception must obtain where I.C.A.C. wishes to exercise its power of applying to the court for an order directing the surrender of a suspect's travel documents. The bird obviously might have flown, thus frustrating the clear intention of the law, if the court were to insist on the suspect getting the chance to come to court before the order requiring the handing over of his travel documents.

4. Once, however, a suspect's travel documents have come into the possession of I.C.A.C., it is difficult to discern any reason of policy or common sense why the suspect should not be allowed to come to court in the usual way to speak up before any further orders are made which might affect those documents.

5. I.C.A.C.'s powers in relation to the surrender of travel documents are contained in section 17A of the prevention of Bribery Ordinance, Cap. 201.  I will set section 17A out in full:

"17A(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.

(2)                 A notice under subsection (1) shall be served personally on the person to whom it is addressed.

(3)                 A person on whom a notice under subsection (1) is served shall comply with such notice forthwith.

(4)                 If a person on whom a notice under subsection (1) has been served fails to comply with the notice forthwith, he may thereupon be arrested and taken before a magistrate.

(5)                 Where a person is taken before a magistrate under subsection (4), the magistrate shall, unless such person thereupon complies with the notice under subsection (1) or satisfies the magistrate that he does not possess a travel document, by warrant commit him to prison there to be safely kept

whichever occurs first.

(6)             A travel document which is surrendered to the Commissioner under this section maybe detained for 6 months from the date on which it was surrendered and may be detained for a further 3 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.

(6)A           All proceedings before a magistrate under this section shall be conducted in chambers.

(7)             In this section,'travel document' means a pass-port or other document establishing the identity or nationality of a holder''.

6. If documents need seizing under subsection (1), I.C.A.C. will be justified in seeking a magistrate's order to that effect, without alerting the suspect in any way beforehand.There can be no quarrel with that.  The problem arises when I.C.A.C.wishes to continue a seizure already made. why, in those circumstances, does I.C.A.C. need some special dispensation from the court's usual insistence on an inter parte procedure? The words "ex parte" are not used anywhere in the section.   The question arising for my consideration is whether the legislature implied ex parte proceedings.

7. The facts giving rise to the problem are simple.  The applicant before me was arrested by I.C.A.C. officers on the 17th March 1983 on suspicion of having committed the.offence of offering advantages to security guards working for the Royal Hong Kong Jockey Club as an inducement or reward for abstaining from performing their duties in their capacity as public servants.  Immediately on the occasion of his arrest, his residential and business premises were searched, resulting in the seizure of his travel documents.

8. Next day, I.C.A.C. went ex parte before a magistrate who made an order under section 17A(1), directing the applicant to surrender his travel documents for a period of six months, expiring on the 17th September 1933. (Quite why that application needed to be ex parte eludes me, as I.C.A.C. already had the travel documents, but the applicant makes no complaint about what happened on that occasion, preferring to treat it as water under the bridge. However, I will comment on this later).

9. The same day (i.e. 18th March 1983), he was put on I.C.A.C. bail, which has been renewed from time to time since then,

10. The applicant complains that being deprived of his passports has occasioned him loss of income.Part of his livelihood was earned from being a representative of casinos in Macau and Nevada. In that capacity, he introduced customers to those casinos on a commission basis. Without his travel documents, he can no longer do that.

11. On the 26th August 1983, the applicant's solicitors wrote to the Commissioner of I.C.A.C. to the effect that their client wanted his travel document back on the 16th September 1983, so he could pursue his livelihood and that unless the documents were returned, they would apply to the court for their return.

12. The original surrender order was about to expire on the 17th September 1983. On the 15th September 1983, the Commissioner went ex parte before a magistrate seeking an order to detain the documents further under section 17A(6). No mention was made to the magistrate of the solicitor's letter of the 26th August 1983, which the Commissioner had received, nor was any reference made to the fact that the applicant objected to a further order.

13. The magistrate made the order prayed for by the Commissioner. The order simply said that the documents should be further detained without specifying any particular period. It is common ground that the longest period for which this further order could be operative was three months from the 15th September 1983. (In due course, I will comment upon the effect of an order in this form which does not specify any particular duration).

14. Having learnt on the 16th September 1983 of the order for the further detention of his documents, the applicant caused his solicitors to initiate the present proceedings for judicial review, which have now come before me.

15. The applicant has stated various grounds on which he contends the magistrate's order of the 15th September should be quashed. Only one of those grounds needs to be considered because, on the view I take, it disposes of the whole case. The ground is that the magistrate acted in breach of natural justice by not giving the applicant an opportunity of being heard or making representations against the making of the decision of the 15th September 1983.

16. Crown counsel fairly conceded that if, in fact, the magistrate was under a duty to hear the applicant, then the breach of that duty amounted to a denial of natural justice, with the inevitable result the magistrate decision would have to be treated as a nullity.

17. However, Crown counsel strongly contested that the magistrate was under any such duty.

18. To support the Crown's contention, there is the direct authority of the case of J.V. Prendergast, (the Deputy Commissioner of I.C.A.C.) v. Peter Chan,⁽¹⁾where a much admired and respected colleague of mine held that a magistrate is entitled to hear applications under section 17A(6) ex parte.It is with great reluctance that I find myself impelled to a contrary view.  As this is an area where the liberty of the subject is in issue, I do not think it would be proper for me to allow considerations of comity to prompt me to follow a decision with which I disagree.

19. The learned judge's reasoning an the Prendergast case is contained in the following passage: -

"If it is intended that the person must be present when the application is made, there would be no necessity for a written notice to be served upon him personally. The requirements of a written note and of personal service an my opinion envisage the absence of the person under investigation.It would be strange indeed if has presence is not necessary for an application under subsection (1) but necessary under subsection (6)"

20. I am not persuaded that even in a subsection (1) situation, the requirements of a written notice and personal service are indicative of an intention that the proceedings should invariably be ex parte. Their purpose, to my mind, as to ensure that the suspect knows precisely what it is he has to do, with such a notice personally served, the suspect can have no excuse for non-compliance.

21. Whether or not the proceedings under subsection (1) should be ex parte can be left to the discretion of the magistrate.If there is any danger that alerting the suspect might cause the documents (or worse still, the suspect) to disappear, the magistrate will, no doubt, allow the application to proceed ex parte. If there is no such danger, as an the present case where I.C.A.C. already had the travel documents in their possession by the time of their application of the 18th March, the magistrate should insist on the normal inter partes procedure being followed.

22. Professional judicial officers, I would have thought, are well capable of distinguishing when an application merits the exceptional ex parte treatment, and when not.

23. If I am wrong on that, and subsection (1) demands a mechanical approach that all applications under it should be ex parte, I, nonetheless, still see no justification for the same approach to subsection (6).

24. At least there is an argument that a mechanical approach making all applications under subsection (1) ex parte avoids the risk of the wrongful exercise of discretion leading to the occasional suspect making a hasty exit from the Colony; no such ride is discernible under subsection (6) where the suspect's travel documents will already be safely in the hands of the authorities.

25. I am not attracted by the argument that the word "application" should be interpreted the same way in each of the subsections, when the subsections cater for such different sets of circumstances.

26. Great play was made by the Crown of the need for confidentiality in relation to the material I.C.A.C. makes known to the magistrate on applications under section 17A.

27. True, on applications under subsection (1), there will frequently have to be confidential information in the affidavit. That will be so in those cases where surprise is of the essence, and the suspect must not be forewarned. The mere fact that an application is being made will be confidential, and the reference to the suspect's name will be the most crucial piece of confidential information. As I have already indicated, those applications should be ex parte.

28. However, it is difficult to see why anything confidential has to be disclosed in affidavits in those cases where I.C.A.C. already has the travel documents in its possession.

29. The situation is highly analogous to that obtaining on a bail application. The Crown has to oppose bail without being able to resort to what is in effect secret communication with the court.  I see no necessity for it to be in any better position when, instead of wanting to hold on to a parson, it wants to hold on to documents.

30. The reason why I.C.A.C. needs to continue holding on to travel documents is the same as why it needs to continue holding a suspect: because the investigation has not been completed yet and the case is not yet ready for court. What can there be so secret about that?

31. No encouragement should b given to any I.C.A.C. practice of including unnecessary confidential material in its affidavits, and then saying the court should proceed ex parte for fear of disclosure.

32. The affidavit before the magistrate on the ex parte application of the 15th September was stuffed with confidential information which was totally unnecessary for the magistrate's decision on whether to continue with the further detention of the travel documents.

33. Only the last four paragraphs of the affidavit were necessary for the magistrate to consider the application properly, and they did not contain anything even remotely confidential.

34. In my opinion, the magistrate should have refused that ex parte application, and told the Crown to come back inter partes with a fresh affidavit from which the confidential material was omitted.

35. My conclusion, therefore, in view of the foregoing is that the magistrate was wrong in making his decision on the 15th September 1983 without affording the applicant the opportunity of being heard, and that decision was a nullity for want of natural justice.

36. The whole matter will have to be remitted back to a magistrate, but if the Crown is correct on a further contention it has made, such remitting is in practice almost certainly doomed to be an exercise in futility from the applicant's point of view.  According to the Crown, all that the magistrate is entitled to consider, even on an inter partes application under subsection (6), is whether he is satisfied that the investigation could not reasonably have been completed already. Once he is so satisfied, he must continue the order detaining the documents, according to the Crown. The Crown's view is that the magistrate is not entitled to take account of the applicant's personal circumstances in arriving at his decision. There is not to be any balancing exercise performed by the magistrate, weighing the risk to the community against the loss to the applicant.   For the word "may" in "may be detained for a further 3 months" in subsection (6) read "must".

37. As a matter of reality, it is difficult to see I.C.A.C. failing to persuade the magistrate it needs more time for completing this investigation which relates to a complex state of affairs involving dozens of witnesses and masses of documentary evidence. Assuming I.C.A.C. succeeds in establishing that element, is that to be the end of the matter? Is the magistrate left without a discretion to take into account other factors such as, for example, the applicant's allegations about the effects on his livelihood, or some compassionate or health ground, say?

38. Firstly, the Crown wants the suspect to be shut out of court through an ex parte procedure when there is no overriding policy consideration why it should be done; next, it wants the magistrate to be reduced to the level of a rubber stamp without any discretion.  If the legislature had intended the court to act in that way it would surely have said so explicitly, or at the very least have given a strong indication to.that effect. The courts in my view are on a slippery slope once they co-operate in relinquishing well-tested safeguards for the liberty of the individual such as the right to be heard in court before a judicial officer who is more than a rubber stamp, unless there are compelling reasons why the normal safeguards should not apply.

39. I see no reason at all why "may" should be read as "must" in subsection (6), and, in my opinion, a magistrate deciding whether to continue the detention of documents under subsection (6) is required to perform a balancing act, taking all factors into account. The magistrate does not need to do that, though, until being satisfied by the Crown it meets the threshold requirement that the investigation could not reasonably have been completed already.

40. One further matter which awaits brief comment is whether the magistrate was entitled to make an order for further detention under subsection (6), without specifying its duration.   I.C.A.C did not ask for an.order of any, particular duration... The Groom contends an order in the present form is unobjectionable because anyone who took the trouble to consult subsection (6) would realize its duration must be for three months.

41. I do not consider that all further detention orders have to be for an automatic three months. I regard three months as the maximum period of a further detention order. If the magistrate is told that I.C.A.C. needs a further one month to complete its investigation.  I see no reason why three months have to be granted.  There seems no compelling reason to deprive the magistrate of a discretion which enables him to come up with a reasonable order, tailored to the needs of the situation. Again I see no justification for reading "may" as "must" in subsection (6).

42. The magistrate not having been required to direct his mind as he should have been, to what was the appropriate duration of the order, affords a further ground for treating his order as a nullity, in my opinion.

43. Where a magistrate decides that the three months maximum is the appropriate duration for the order, the magistrate must say so explicitly. Some formula, as in the present case, from which a lawyer could work out the answer is not good enough. The citizen is entitled to know the effect of an order without having to run off to a lawyer to find out. What could be easier than simply saying in the order it is to last for three months? What possible justification can there be for presenting the citizen with a riddle, which needs a lawyer for a solution?

44. The orders I make in view of the above are:

(1) (1975) Criminal Appeal No. 768

Representation:

Mr. Kenneth Kwok (Woo, Kwan, Lee & Lo) for applicant

Mr. John Burdett, Crown Counsel (Legal Dept.) for respondent