Alick Au Shui Yuen v. Sir David Ford, Deputy To the Governor and Others

HCMP002827/1990

HEADNOTE

Judicial review - whether Governor's Order under s. 12(2) of Prisons Ordinance unlawful - whether a "prisoner" whilst in ICAC custody and not in gazetted prison - whether applicant had sufficient interest in the matter to which the application relates.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Kaplan, J.

Dates of Hearing: 19 - 21 December 1990

Date of Handing Down Judgment: 6 February 1991

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JUDGMENT

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1. I have before me an application for Judicial Review made by Alick Au (Au). In this application Au submits that an order made by Sir David Ford, The Deputy to the Governor, on 5th July 1990 pursuant to Section 12(2) of the Prisons Ordinance, Cap. 234 of The Laws of Hong Kong is unlawful.

Background

2. Warwick Charles Reid (Reid) was a Principal Crown Counsel in the Attorney General's Chambers. He held the substantive post of Deputy Crown Prosecutor. He was in charge of the Commercial Crime Unit of the prosecution division of the Attorney General's Chambers.

3. Reid was corrupt. Investigations into his affairs began and during them he fled and eventually ended up in Manila. He was arrested there and brought back to Hong Kong on the 30th March 1990 whereupon he decided to plead guilty and to give evidence for the Crown against a number of persons. One of these persons is Au who is now on remand awaiting a trial later this year. Reid will be the major witness. Reid's first statement is dated 4th June 1990.

4. On his return to Hong Kong, Reid was detained at the ICAC detention centre at Murray Road. He appeared before the Magistrate on 20th June 1990 and pleaded guilty to an offence under Section 10 of The Prevention of Bribery Ordinance in that his assets were in excess of his emoluments. He was then committed to the High Court for sentence under the provisions of Section 81B(6) of the Magistrates Ordinance, Cap. 227.

5. On the 6th July 1990, Reid appeared at the High Court whereupon he was sentenced to 8 years' imprisonment by the Chief Justice and he was further ordered to pay some $12 million being the proceeds of his corruption.

6. On the 5th July 1990, The Deputy to the Governor, Sir David Ford, signed an order under Section 12(2) of the Prisons Ordinance. To assist in following the detailed submissions made to me, it may be convenient at this stage to set out the terms of Sections 9-12 of that Ordinance:-

"9.    Prisoners shall be under the control of the Commissioner who may -

7. On the 5th September 1990, Reid made a further lengthy statement with regard, inter alia, to Au. On the 7th September 1990, Mr. Justice O'Connor granted Au leave to apply for Judicial Review.

8. The Order dated the 5th July 1990 is on Government House notepaper, and is expressly made pursuant to Section 12(2) of the Prisons Ordinance. It is addressed to the Commissioner of Correctional Services and to the Commissioner of the Independent Commission Against Corruption. It recites the basic facts including that Reid was due to appear before a judge for sentence on the 6th July. It further recites that Reid is presently remanded in the custody of ICAC and has been rendering useful assistance to the Crown in investigations into aspects of corruption and other criminal acts committed by members of the legal profession and other members of the public.  It goes on to recite that Reid had indicated a willingness to continue to assist the investigations after his sentence. It further recited that the Commissioner of the ICAC had given certain undertakings to the Commissioner of Correctional Services which undertakings were conditional upon Reid being sentenced to a term of imprisonment. These undertakings related to (1) the safe custody of Reid from the date of sentence to date of delivery back to the physical custody of Correctional Services Department; (2) safe custody and conveyance of Reid on the journey from the High Court after his sentence to the ICAC detention centre and on any future journey where he was taken back to prison; (3) that the custody will be no longer than is necessary for the purposes of completing the investigations and the giving of evidence in any subsequent trial or trials; (4) while Reid is in their custody ICAC agreed to supply him with adequate food, clothing and other subsistence needs the cost of which will be borne by ICAC; (5) advance notice is to be given of the date when Reid is to be delivered back and (6) ICAC will be responsible for the physical wellbeing of Reid whilst he is in their custody.

9. The Order went on to recite that the Commissioner of Correctional Services had agreed with the proposed delivery of Reid into the custody of ICAC and the order then continues in the following terms :-

"AND WHEREAS I am satisfied that if the said Charles Warwick Reid is sentenced to a term of imprisonment then the continued attendance of the said Charles Warwick Reid in the detention centre of the Independent Commission Against Corruption is desirable in the interests of justice.

I, DAVID ROBERT FORD, ..... The Deputy to the Governor of Hong Kong, HEREBY ORDER that the said Charles Warwick Reid shall, if he is sentenced to a term of imprisonment for the said offence stated above, be immediately taken to and detained in the Independent Commission Against Corruption detention centre at 10th floor, Murray Road Carpark Building, Murray Road, Central, Hong Kong in accordance with the undertakings given by the Commissioner of the Independent Commission Against Corruption to the Commissioner of Correctional Services as aforementioned.

In Witness Whereof I have hereunto set my hand dated this 5th day of July 1990."

10. It is common ground that as from the date of his return from Manila on 30th March 1990 until he was taken to the Supreme Court on 6th July 1990 for sentencing Reid had been detained at the ICAC detention centre at Murray Road. It is common ground that later in the day on the 6th of July after sentencing he was returned to the ICAC detention centre and has remained there ever since.

11. It is also common ground that the ICAC detention centre has not been gazetted as a prison under the Prisons Ordinance.

12. It is admitted by the Respondents that it is proposed that Reid remain at the ICAC detention centre until the trial or trials in which he is to give evidence are over. This may well stretch into 1992.

13. Reid's case has attracted a considerable amount of publicity both in Hong Kong and abroad. The circumstances of Reid's incarceration have given rise to considerable comment, most of it uninformed. The way in which Au's case has been put by his enthusiastic and able team of counsel also requires to be noted because at the end of the day I have to decide the case as it has been presented to me and not how others perceived it to have been presented. It is thus very important to set right certain misconceptions.

Is Reid in a unique situation?

14. Firstly, Reid is not the first witness to be held at ICAC detention centre under the provision of Section 12(2). In May, 1986 a Resident Informant Scheme was established. According to an unchallenged affidavit of Mr. J. Sissons, a partner in the firm of Herbert Smith, Solicitors for ICAC, there have been 10 convicted persons detained at ICAC premises under the scheme pursuant to an order made by the Governor under this section. The scheme was designed to keep in protective custody persons who are prepared to assist ICAC in its investigations and to give evidence for the Crown in criminal trials. Mr. Sissons states on information and belief that the scheme was introduced after consultation with the Solicitor General, Secretary for Security, Commissioner of Correctional Services, The Royal Hong Kong Police Force and The Customs and Excise Department. Mr. Sissons further states that the scheme was similiar to a scheme introduced in England and operated by the Home Office. The first convicted prisoner held at ICAC pursuant to an order under this section spent 9 months and 12 days of his three year sentence in ICAC custody. He assisted their investigations and was waiting to give evidence but this did not prove necessary as the accused persons pleaded guilty. Another convicted prisoner spent the whole of his one and a half years sentence in ICAC custody pursuant to a Section 12(2) order.

Is Reid being held in more favourable conditions than if he were in prison?

15. Evidence on this comes from two sources. Firstly, Mr. Sissons deposes to the conditions under which Reid is kept and secondly, I have had a description of this from Reid himself who is the 5th respondent to this application and he represented himself and made submissions.

16. For 23 house a day, Reid is detained in a cell Which has no windows and which enjoys no natural light. He is permitted two 1/2 hour exercise periods a day and this takes place on the roof of the Murray Building carpark. Apart from when he takes exercise and apart from when he assists ICAC with their enquiries Reid is kept in isolation from other detainees. This regime has lasted since 30th March 1990 when he returned to Hong Kong. Food is supplied during the week from the ICAC canteen and at weekends, when the canteen is closed, food is purchased from outside sources normally fast food shops. Contrary to reports in the press no food is obtained from hotels nor has alcohol been supplied to Reid since his conviction. There are no facilities at the ICAC detention centre for Reid to work but he has voluntarily carried out certain cleaning jobs which have earned him $64.80 as at the end of October 1990. Reid has access to a television, radio and video. He is permitted to make small purchases such as confectionery using his own funds. He has access to a fitness bicycle. Since his conviction he has had one visit from his parents and two from his wife and children. Apart from these visits he has only had visits from lawyers and Justices of the Peace. He is permitted to make a telephone call to his family in New Zealand once every two weeks. He is given access to newspapers and is permitted to keep a number of periodicals and books.

17. Reid himself indicated that he intended to complain about the solitary nature of his confinement. He emphasised, as is the case, that newspaper reports about the conditions in which he is kept are grossly exaggerated. He further mentioned that the electrical current in his cell is very low in order to reduce the risk of electrocution to anyone with suicidal inclinations. This means, he said, that the level of artificial light is low.

18. Reid made it clear that he agreed to the Order and does not allege that it is unlawful in any way. He wishes to stay where he is despite the solitary nature of his confinement because he does not wish to take the risks inherent in being taken to a prison.

19. On the unchallenged evidence before me, I cannot possibly conclude that Reid's present incarceration is cosy or comfortable to borrow some of the hyperbole of Mr. McCoy's submissions. I note that under prison rule 63 a superintendent may order a prisoner who is convicted of certain offences to be separately confined for any period not exceeding 28 days. Reid has been detained in these conditions for 265 days thus far with about 200 days being post sentence. It is clear to me that Reid is a prisoner in the ordinary meaning of that word and that it is absurd to refer to it as a 'sham imprisonment' as does a newspaper cutting annexed to Mr. Taylor's affidavit.

20. I have dealt with this matter at some length because one of the grounds upon which relief is sought is "the exceptional nature of Reid's accommodation and favourable conditions (Reid being a person who on his own admission is guilty of a serious offence of corruption) contrast markedly with the prison accommodation and conditions experienced by the applicant who is presumed innocent." As I have endeavoured to point out there was nothing in this ground.

21. I now turn to refer to several other crucial matters which must be borne in mind throughout this judgment.

The bona fides of Sir David Ford and of the order are not challenged

22. It has not been part of Mr. McCoy's case that the Order was made by Sir David Ford in bad faith or for any improper or ulterior motives. It is thus conceded, and rightly so, that Sir David Ford was of the view that it was in the interests of justice for Reid to be kept at the ICAC detention centre.

No Wednesbury challenge

23. Although unreasonableness appears as ground 5 it was abandoned and again rightly so. Thus there is no challenge to the Order on the grounds of unreasonableness or irrationality.

Non-disclosure of the order to the Chief Justice

24. Ground 4 relies upon the fact that the existence of the Order signed on the 5th July 1990 was not brought to the attention of the Chief Justice on the 6th July 1990 when he sentenced Reid. It is clear on the evidence that ICAC wanted to draw it to the Chief Justice's attention but, either as an oversight or because he did not consider it relevant, prosecuting counsel failed to do so. It is to be regretted that the matter was not brought to the Chief Justice's attention out even, if it had been, I cannot conceive that it would have had any effect upon the sentence passed. The Chief Justice would have said that this was a matter for the executive and he certainly would not have embarked upon an investigation as to the legality or otherwise of the Order.

25. I think it was unfortunate that on the 7th September 1990 during the application for leave to apply for judicial review O'Connor, J., perhaps in an unguarded moment and certainly without all the facts before him, said that the Chief Justice had been 'hoodwinked' by this non-disclosure. Although, as I say, it is to be regretted that the matter was not brought out into the open, nevertheless it could not have possibly affected the result of the sentencing hearing.

26. I therefore do not see how ground 4 can be a ground at all because it has no bearing on the construction of Section 12(2). I pressed Counsel for Au on this point and received no satisfactory explanation as to the relevance of this matter.

Has Reid's detention led to any 'improvement' of his evidence against Au?

27. At various stages during Mr McCoy's submission, he referred to Reid's ICAC detention as one where there was 'a mutual currying of favour with his captors' and 'an ongoing incentive to please his hosts.' This was intended to mean, and could only be taken to mean, that it was being alleged that because Reid was getting privileged (and thus better) treatment or, because he was living at the investigator's headquarters, he was either being coached in his evidence or was voluntarily giving them more and more information about Au's involvement in these matters.

28. It needs to be made crystal clear that Mr McCoy did not allege any impropriety against ICAC. There Is no such evidence whatsoever.

29. It also needs to be made perfectly plain that I received no submission from Mr McCoy on the question of whether Reid's evidence against Au was improving during the course of his ICAC detention. There is no evidence on this point and all I know is that Reid has made two statements, the first on the 4th June and the second on the 5th September. (He has made a third statement as this was mentioned by Mr. Huggins at the end of an interlocutory hearing on discovery but this may not have been in relation to Au and certainly no point has been taken on it)

30. This point will have to be considered again when I turn to consider the question of 'locus standi'.

Is Reid living with the prosecution?

31. A constant theme during My McCoy's submission was that Reid was living with the prosecution and this was inherently unhealthy. He said that it was undesirable that a witness should be 'cocooned with the prosecutor' and he spoke of 'advantages offered and accepted '. Although ICAC have been given considerable powers they have not, as far as I am aware, been given the power to prosecute offences in the courts of Hong Kong. They are an investigative organization. The decision to prosecute has been, and I hope always will be, that of the Attorney General, no doubt on the advice of the Director of Public Prosecution. It is up to the Attorney General to decide whether to prosecute any person and for what charge or charges. No doubt, he will take into account the views of the investigating authority, be it ICAC, or the Royal Hong Kong Police Force, or the Customs & Excise Department, but at the end of the day the decision is his. Thus at any stage of the proceedings, the Attorney General can determine such proceedings regardless of the views of the investigation department. The Attorney General presents the case in court and has a free and independent hand in so doing. He is not beholden to the investigative authority.

32. Reid is not being detained by the prosecution. His detention by ICAC is unusual but not unique, but most importantly, the Governor has decided that it is in the interest of justice that he remains there and no allegation is made as to the bona fides or reasonableness of that decision.

Was Reid's detention with ICAC between 20th June 1990 (when he pleaded guilty) and 6th July 1990 (when he was sentenced) lawful?

33. On 20th June 1990, Reid pleaded guilty to the offence charged before the magistrate. Section 80B(5) of the Magistrates' Courts Ordinance provides that when "an accused is committed for sentence he shall so soon as practicable be brought before the High Court for sentence". The subsection goes on to provide that a judge of the High Court shall have the same powers of sentencing as he would have had if the accused had pleaded guilty on arraignment.

34. Subsection (6) of Section 80B provides as follows:

"The Magistrate committing an accused for sentence shall have the like powers to commit the accused to prison or to admit him to bail as in the case of an accused committed for trial..." (my emphasis)"

35. Mr. McCoy submitted that because, after pleading guilty on 20th June, Reid was taken to the ICAC detention centre and not to a prison, his detention there prior to the coming into force of the 5th July Order was unlawful. Under Subsection (6) he says there are only two alternatives, prison or bail. Reid was neither sent to prison nor was he admitted to bail and thus, it is argued that for at least 16 days Reid was unlawfully detained at ICAC detention centre.

36. Whilst not conceding that this period of detention was unlawful, neither Mr. Li nor Mr. Huggins was able to mount much of an argument to the contrary. Mr. Huggins submitted that a Defendant who pleads guilty under Section 81B of the Magistrates Ordinance and is committed for sentence in custody (as he submits Reid was) is a 'prisoner' whether he be held in a designated 'prison' or not.

37. This is all very interesting, however, I fail to see how a period of detention at ICAC detention centre before the coming into effect of the order of 5th July 1990 can possibly help on the construction of Section 12(2) and the question whether detention under that Order is or is not unlawful. Mr. McCoy submitted that Reid had been unlawfully detained and that Section 81B of the Magistrates Ordinance shows how seriously the legislature regarded it that a person should be committed to prison or to bail. These were the only alternatives. I pressed Mr. McCoy to explain how this submission was relevant to the lawfulness or otherwise of the Order of 5th July 1990 and I received no satisfactory explanation.

38. I do not find this point of any assistance in the task before me, namely whether Au has sufficient locus standi to bring this application and whether the Order of 5th July was ultra wires Section 12(2).

The construction of Section 12(2) of the Prisons ordinance

(a) Au's submission

39. In essence, Mr. McCoy's submission is that Section 12(2) only bites on a "prisoner" and that Reid has never been a prisoner. He goes on to make much of the word "attendance" and submits that the use of such word connotes something of a transitory or transient nature. Further he submits that this word is used in sharp contradistinction to the word "confined" in Section 10(1) and other sections. He submits that Section 12(2) does not authorise a separate long term regime of detention of a convicted prisoner in a place other than a prison. He referred me to same of the Prison Rules where the word "attend" is used in relation, for example, to religious services or educational classes.

40. Mr. McCoy emphasizes that the ICAC detention centre has not been gazetted as a prison and that there is no definition of "prison" in the Ordinance. However he conceded that if after sentence Reid had been taken to Stanley Prison for 5 minutes, his removal thereafter to ICAC detention centre would have been lawful because he would have been, for 5 minutes at least, a prisoner. Mr. McCoy's concession went a little further because I took him to agree that if, after sentence, Reid had been placed in a Correctional Services Department Van and taken not to prison but to ICAC detention centre he would have been a prisoner in the sense that he had been sentenced to a terra of imprisonment and was immediately taken into the custody of the Correctional Services Department. It would, in my judgment, be unfortunate if the answer to the questions posed in this application turned on such niceties.

41. It is important, yet again, to see what the evidence is as to what happened to Reid on 6th July. The following unchallenged facts are taken from a very useful statement admitting facts served by Allen and Overy on behalf of the Commissioner for Correctional Services.

42. On this evidence it seems clear to me that at or about 8.55 a.m. on the 6th July 1990, Reid was handed over to the custody of the Correctional Services Department where he remained until approximately 4.05 p.m. At this point, he was handed over to ICAC, the Order having come into existence by virtue of Reid's sentence of imprisonment.

43. Mr. McCoy made a number of attacks against the form of Order itself. He criticised the phrase "delivered back into the physical custody of the Correctional Services Department".  He submitted that as Reid had never been in their custody he could not be delivered back. There is nothing in this point as I am satisfied that on 6th July Reid was in the physical custody of the Correctional Services Department. He criticises the use of the word "custody" in relation to ICAC on the ground that there was no legal authority for ICAC to have him in their custody. This begs the very question I have to decide.

44. The most important defect in the Order, says Mr. McCoy, is where, in the operative part, it is stated that Reid, if sentenced to a term of imprisonment, shall "be immediately taken to and detained" in the ICAC detention centre. Mr. McCoy says that there is no power in S.12(2) to order anyone to be detained at ICAC. Mr. McCoy further submits that the order predates the sentence and is thus per se unlawful. There is nothing in the last point because the Order is clearly conditional on Reid being sentenced to a term of imprisonment and only comes into effect on the happening of that event.

45. Mr. McCoy contended most vigorously that it was fatuous and insupportable to contend that Reid was handed over by ICAC to Correctional Services Department on 6th July. He submitted that at all times he was in ICAC custody either actual or de facto. He says that what occurred on 6th July arose by accident and not by design. He submits that on 6th July Reid was still in the control of ICAC but was held at a Unit which was the administrative responsibility of the Correctional Services Department.  He invites me to look at the reality of the situation.

46. Before turning to the principle authorities upon which Mr. McCoy relied,  I think it important to point out that Section 81 of the Evidence Ordinance, Cap. 8 makes provision for what are frequently called "body Orders", that is an Order made by a judge Ordering the attendance of a person in lawful custody before any court "to enable such person to prosecute, pursue, defend or be examined as witness in any proceedings whether criminal or civil before such court." The relationship between this section and Section 12(2) is in my judgment of significance. Section 12(2) posits attendance on two factual circumstances. Firstly, where it is desirable in the public interest and secondly, "or for the purposes of a public inquiry." A public inquiry would not be covered by Section 81 of the Evidence Ordinance because that relates solely to civil or criminal proceedings before a court. I mention this because my first reaction on reading Section 12(2) was that it did refer to a "body Order" situation. Section 12(2) could be used if the Governor thought that it would be in the interests of justice for a prisoner to be allowed to attend let us say a sick relative for longer than the Prison Rules permit or if he felt it was in the interests of justice that a prisoner should be taken outside of Hong Kong to assist other investigatory authorities. The fact that it could lawfully be used for such purposes does not of itself result in it being unlawful for the section to be used as it has in this case. As there is a 'body Order' section in the Evidence Ordinance, one has to bear this in mind when construing Section 12(2) and the submission that the construction thereof should be narrow.

47. Mr. McCoy placed great reliance upon a decision of the English Court of Appeal in Becker v. Home Office [1972] 2 Q.B. 407. Mrs. Becker had started an action as trustee when she was sent to prison for obtaining credit as a bankrupt. She applied to leave prison in order to conduct her case. The Home Secretary made a direction for her production under Section 29 of the Criminal Justice Act 1961 subject to her prepayment of the costs. She left prison 9 times to conduct her proceedings and $8.17 was deducted from ponies held on her behalf. In these proceedings she sued, inter alia, for the return of that sum. She succeeded before the County Court Judge but lost on appeal.

48. Section 29 of the Criminal Justice Act 1961 provided so far as is material as follows:

"(1) If the responsible Minister is satisfied in the case of a person detained in ... a prison ... that the attendance of that person at any place ... is desirable in the interests of justice or for the purposes of any public inquiry (he) may direct that person to be taken to that place."

49. Mr. McCoy relied on a passage in the judgment of Stephenson L.J. at pages 423H - 424C. The learned Lora Justice said :

"Under Section 29(1) of the Criminal Justice Act 1961, the Secretary of State has a discretionary power to allow him or her out of the place where the sentence is being served, but not out of Custody unless he otherwise directs : Section 29(2). A condition necessary to the exercise of this discretion is that he should be satisfied that the prisoners attendance at another place is desirable in the interests of justice or for the purposes of any public inquiry. If and only if satisfied of that, he may direct the prisoner to be taken to that place. Those words are, I think limited by their context and their history to the desirability of the prisoner leaving prison for the purposes of conducting litigation as a party or of giving evidence in his own or another's litigation, criminal or civil."

50. It is important to note that the learned Lord Justice does state explicitly that the words used in Section 29 "are limited by their context and history". This point bears very heavily on one of Mr. Li's submissions.

51. Mr. McCoy also relied on R. v. Governor of Brixton ex parte Walsh [1985] A.C. 154. Walsh faced two sets of charges. In one of which he was bailed and in the other he was remanded in custody. The Governor of the prison refused to produce him to the court for the purpose of facing the bailed proceedings. At page 165 Lord Fraser referred to Section 29 of the Criminal Justice Act and added this passage on which Mr. McCoy heavily relied :

"... so the effect of Section 29(1) of the Act of 1961, and of the circular, is that a Governor of a prison may direct a prisoner to be taken to a court if he is satisfied that his attendance at the court is desirable in the interests of justice."

52. Mr. McCoy submits that this passage makes clear that this provision is intended for the temporary removal of a prisoner from prison for attendances at some king of judicial proceedings. He says that this case when read with Becker supports his submissions.

53. Mr. McCoy's submissions can, I think, be fairly summarized as follows :

(b) Submissions of Respondents

54. In summary they are that :

55. Mr. Andrew Li Q.C. invited me to adopt a purposive construction rather than a purely literal construction. He reminded me of Section 19 of Cap. 1. As to construction, he submitted that this included not only other provisions in the statute but also other statutes in pari materia relating to the same class of persons or things and the existing state of the law (See Attorney General v. Prince Augustus of Hanover [1975] A.C. 436 at 461).

56. Mr. Li referred to section 81 of the Evidence Ordinance as a statute in pari materia as it relates to the same class of persons or things.

57. He submits that the word "or" in Section 12(2) should be read disjunctively. Therefore the phrase "or for the purpose of any public inquiry" does not assist.

58. He submitted that Section 12(2) involved 2 Stages. Firstly, the Governor had to be satisfied that the attendance of a prisoner at any place is desirable in the interests of justice. Secondly, if so satisfied, the Governor may by Order direct that tae prisoner be taken to that place in pursuance of such interests. While absent from prison, the prisoner shall be deemed to be in legal custody.

59. He submitted that it was significant that the discretion was vested in the Governor and this suggested that the legislature had in mind that the discretion could involve important and sensitive matters in meriting consideration at the highest level in Government. I find no assistance in this point. Many Ordinances refer to the Governor and not all of them relate to high matters of state. For instance, Prison Rule 31 provides for the Governor to approve dietary scales for prisoners. This is hardly a sensitive matter or high act of state.  In any event, Mr. Li conceded that it was possible for the Governor to delegate his powers under Section 12(2).

60. Mr. Li emphasised that "desirable" lays down a much lower test than "necessary". This point does not assist me now that the bona fides of the Order are not challenged nor is its reasonableness.

61. Mr. Li submits that the phrase "in the interests of justice" should bear their ordinary and natural meaning and should not be given a narrow and technical construction by limiting them to court hearings or such like. He emphasised that it is clearly in the interests of justice for corruption allegations to be investigated and for those who can assist to be interviewed and for prosecutions to be brought.

62. As to the worn "attendance", he submitted that its ordinary and natural meaning was "to be present at". He says "attendance" is used as opposed to "confinment or detention" because the place in question may not in fact be a place of confinment. He said that in common parlance, one talks of one's child "attending" boarding school or university and that such attendances are (hopefully) far from short term or transient.

63. "Any place", he submits, means what it says and must include a place of detention controlled by ICAC. The Order directed Reid to be taken to the place, namely ICAC detention centre in pursuance of the interests of justice.

64. He said there was nothing wrong or sinister in the use of the word "detained" in the operative part of the Order. The place specified was a place of detention and thus his attendance there would be in the form of detention, a fortiori as he had been sentenced to a term of imprisonment.

65. As to timing, Mr. Li said that the attendance contemplated by the section is such period as would enable the purpose to be fulfilled, in other words, for so long as the interests of justice, as determined by the Governor, require. In Reid's case, this would be for the purpose of completing investigations and of his giving evidence in a trial or trials.

66. As to the case of Welsh Mr. Li submitted that the passages relied upon by Mr. McCoy were not comments on the scope of Section 29 of the 1961 English Act but it summarised the effect of that section and the circular in question.

67. As to the case of Becker Mr. Li submitted that the passage relied upon from the judgment of Stephenson L.J. is of no assistance in the construction of Section 12(2). He pointed but that Stephenson L.J. was hesitant, that there had been no argument on the meaning of the section and the passage referred to contains only weak dicta.

68. Most importantly, Mr. Li pointed to the learned Lord Justice's remarks that the construction of the words in the statute were limited by their context and their history. He submitted that the context and history of the Hong Kong legislation is essentially different from that of the English legislation and thus these comments do not assist at all.

69. As to the alleged inaccuracies in the Order, Mr. Li said that these criticisms were misplaced but even if correct they would not have the effect of invalidating the Order itself.

70. As to the im portant point as to whether Reid was ever a prisoner, Mr. Li submitted that Reid was a prisoner within Section 12(2) when the Order applied to him. Mr. Li submitted that 'prisoner' should be given its ordinary and natural meaning. Mr. Huggins, on behalf for the 2nd and 3rd Respondents, referred me to the Oxford English Dictionary definition of "prisoner" as follows :

"One who is kept in prison or in custody; one who is in custody as a result of a legal process, either as having been condemned to imprisonment as a punishment or as a waiting the trial for some offence."

The same dictionary defines 'prison' as follows :

"To put in prison, make a prisoner of; to incarcerate; to Keep in a prison or other place of confinement."

Stroud's Judicial Dictionary states that :

"A prisoner did not cease to be a "prisoner" by reason of being removed to a lunatic asylum during the term of punishment."

The same dictionary defines 'prison' as :

"Every place where any person is restrained of his liberty is a prison; as, if one take sanctuary and depart thence, he shall be said to "break prison" ... probably a fuller definition of "prison" is" a Place of restraint for the safe custody of a person to answer any action, personal or criminal" ... or of a person convicted of an offence or who for any cause is legally ordered into confinement."

71. Mr. Li submitted that "prisoner" includes a person who has been sentenced to imprisonment before being taken into custody. Further it obviously includes a person sentenced to imprisonment and taken into custody pursuant thereto. These are the senses in which "prisoner" is used in Sections 12(2), 7 and 9 of the Prisons Ordinance. He sought to gain support for this approach from a case cited by Mr. McCoy namely R. v. Moss & Harte [1986] 82 CAR 116. In that case a prisoner was remanded in custody in one of Her Majesty's prisons. He was taken to a magistrate's Court where he was remanded in custody for a week. The appellants helped him escape from the court and were charged with aiding and abetting a prisoner to escape contrary to Section 39 of the Prisons Act 1952. That section made it an offence for any person to aid "any prisoner in escaping or attempting to escape from a prison ..." The Court of Appeal held that this section only dealt with a prisoner who was in a prison and nothing else. At page 118 Cantley J. in giving the judgment of the court said this :

"Undoubtedly, they had aided a man who could fairly be described by both lawyer and layman alike as a prisoner to escape. He was in ordinary language a prisoner in the magistrate's court room because he was not lawfully allowed to go free."

That says Mr. Li is exactly the position of Reid.

72. As to Section 10, he says that this is a deeming provision. It raises a conclusive presumption but it is not exhaustive. He submits that a person can be a prisoner although not within Section 10. It he were wrong on that then he would submit that Reid was deemed to be a prisoner within Section 10. He placed reliance on the fact that Reid was in the Supreme Court Holding Unit where the procedures for reception of prisoners were completed. As he puts it this was "part of the process of taxing him to a prison yet to be allocated and to which he would have been taken but for the Section 12(2) Order."

73. Mr. Huggins submitted that Reid was a prisoner when Sentenced to 8 years imprisonment on 6th July 1990 which was the moment in time when the Order of the 5th July became effective. He submits that a defendant may be a prisoner :

74. He further submits that the word "prisoner" in Section 12(2) must include, not only a person sentenced to imprisonment, but also a person committed by a court to a prison or other place of security or remand pending trial. Mr. Huggins referred to Section 20(3) of the Magistrates Ordinance and submitted that a defendant committed by a magistrate to some place of security other than a prison under that section is still a "prisoner".

75. I should have made clear that Mr. Oderberg, also on behalf of Au, made a submission to the effect that I should construe Section 12(2) narrowly because of the serious consequences to Reid if a broader interpretation was given to the subsection. He submitted that Reid would cease to be a prisoner and as such would lose a number of advantages which apply to prisoners such as remission for good behaviour. He pointed out that in section 10(1) there is the provision that "a person shall be deemed to be a prisoner" whenever being taken to or from a prison. He says that this phrase is not replicated in Sections 11 and 12. In those sections, one only finds the phrase "shall be deemed to be in legal custody". He submits that custody alone is not enough to render a person a prisoner. He submits that the deeming provision cannot be otiose. He invites me to conclude that because of the absence of the deeming provision in Section 12(2) as soon as the Order was made effective on the facts of this case, Reid became a non-prisoner. If he was not from that moment of time a prisoner but merely in legal custody, the prison regime would not apply to him. The argument goes so far as contending that even if Reid had been a prisoner, as soon as he was taken out pursuant to the Section 12(2) Order, he would then case to be a prisoner. He submitted that Reid had never been a prisoner but even if the time spent in the Holding Unit in the supreme Court was tantamount to being in prison, he was rendered a non-prisoner when taken away by ICAC.

76. If this is the conclusion which attracts me, then, Mr. Oderberg submits, that to avoid it I should decline to give Section 12(2) the breadth of interpretation for which the Respondents seek. I should then read Section 12(2) narrowly especially in relation to the word "attendance" which I should not construe as encompassing detention.

77. A narrow interpretation he says will enable Section 12(2) to be used for sensible purposes. If Reid was rendered a non-prisoner on this interpretation of these sections then, he suggests, I can minimize the damage by a narrow reading of the word "attendance". He submits that "attend" should be interpreted as meaning "attend upon for a very strictly limited period of time".

78. Mr. Li takes issue with Mr. Oderberg's argument. He says that the same reasoning would apply to Section 11 absences as well as Section 12 ones. He submitted that Sections 11 and 12 apply to persons who were prisoners in the first place and who continue to be prisoners unless the legislation expressly changes that situation. A prisoner s status as such cannot be changed simply by the absence of a deeming provision. The deeming provision is not needed for Sections 11 and 12 because the person concerned would have been a prisoner and continue so to be. The deeming provision in Section 10(1) provides for something exhaustive. It deals with possible grey areas. A person can still be a prisoner although not within Section 10. The conclusive presumption is one route by which a person is a prisoner out there are others, he submits.

79. Mr. Li points out that this argument results in an absurdity which I should avoid. In Sections 11 and 12 situations the prisoner has no choice. For example, it would not be his fault that he was taken out of prison because there was insufficient medical facilities in that institution. How can an absence through no choice of the prisoner's own mean that he is deprived of rights including the right to remission. He thus invited we to conclude that Sections 11 and 12 do apply to prisoners and they remain as such for all purposes when absent. He further invited me not to cut down the ordinary meaning of the words in Section 12(2) as a result of this submission.

Conclusion

80. I am very grateful to all Counsel for their interesting and wide ranging submissions. I have been enormously helped by the reduction of these submissions into written form which have saved considerable court time and expense to the parties.

81. I propose to apply to Section 12 of the Prisons Ordinance a purposive construction and I take into account the exhortation contained in Section 19 of Cap. 1.

82. I propose to give to the word "attend" its ordinary and natural meaning, namely "to wait upon, to be present in readiness to answer to an authoritative summons (e.g. to give evidence) wait, tarry, stay". I am quite satisfied that the word "attendance" used in Section 12(2) is appropriate to cover what Sir David Ford had in mind when he made this particular Order. It is true that the section could have said "or detention" but in my judgment that would have been a pleonasm because "attendance" is wide enough to cover a number of different factual situations and no doubt that is why the word "attendance" was used. In my judgment, it is clear that Reid is attending the ICAC detention centre.

83. I am not satisfied that a fair reading of Section 12(2) should lead me to conclude that it was merely intended to deal with transient visits. I am entitled to, and do, take into account that Section 81 of the Evidence ordinance is a "body Order" provision and that it would be wrong to construe Section 12(2) as being limited to such or similar situations.

84. As to Stephenson L.J. is dictum in Becker, I have been impressed with Mr. Li's historical analysis which I have not repeated in this already long judgment. Suffice it to say that having considered this submission very carefully. I am satisfied that the context and history of the Hong Kong legislation is essentially different from that of the English legislation and the learned Lora Justice's observations, limited as they are by the context and history of the English section, do not assist me. His words were clearly obiter and it does not appear that full argument was addressed on the meaning of these words. The other two members of the court do not express an opinion on this particular issue.

85. The next matter I have to decide is whether Reid was a prisoner. I think that he was a prisoner on two bases. Firstly, giving that word its ordinary and natural meaning he was a prisoner when he was put in the dock before sentence and was a fortiori a prisoner from the moment the Chief Justice sentenced him to a sentence of 8 years imprisonment. But if I were held to be wrong about that, I would certainly hold on the evidence before me, unchallenged as it is, that on the 6th July 1990, he was in the custody on the Correctional Services Department having been delivered to them at 8.55 a.m. that day. He remained with them until later in the afternoon. All the usual procedures were carried out by Correctional Services officers in the Supreme Court Holding Unit and I find it an extremely suprising proposition to say that despite all this, he was nevertheless not a prisoner on that day giving that word its ordinary and natural meaning. He was, in my judgment, in the custody of the Correctional Services Department until he was handed back to ICAC pursuant to the Order of 5th July 1990. I reject the submissions based on constructive custody or accident.

86. The fallacy of the argument is I believe in equating for all purposes the word "prisoner" with "prison". There is no definition in the Prisons Ordinance which specifies that a prisoner is only a person who is detained in a gazetted prison. I refer back to the dictionary definitions given earlier. Mr. McCoy reminded me of some words of William Blake in relation to prison. Perhaps a more relevant observation was made by Richard Lovelace (1615-58), "Stone walls do not a prison make nor iron bars a cage".

87. It seems to me that the English Court of Appeal decision in Moss & Harte, referred to above, is strong support for the proposition that Reid was clearly a prisoner in the ordinary and natural meaning of that word even though he was not in a prison but was being held, as from 6th July at any rate in lawful custody.

88. As to Mr. Oderberg's argument, relating to the deeming provision in Section 10 and the effect of its absence in Sections 11 and 12, I reject the notion that Reid became a non-prisoner when sentenced and taken to ICAC custody pursuant to the Order of 5th July. The absence of the deeming provision in Sections 11 and 12 does not, in my judgment have the effect contended for. I accept the argument that the deeming provision in Section 10 is not exhaustive. I also fail to see why the same argument would not apply to Section 11 and this would, indeed, give rise to the absurdity which Mr. Li indicted. I therefore reject Mr. Oderberg's submission. I do not believe that the legislature intended that the status of prisoner would cease on the making of a Section 12(2) Order and I do not feel compelled on the wording of the three sections in question to reach that conclusion.

89. In my judgment Reid was a prisoner at the Moment that the section 12(2) Order came into operation on his sentence to 8 years imprisonment. He did not thereafter cease to be a prisoner merely because he was taken to ICAC detention centre pursuant to the Section 12(2) Order. He is and will remain a prisoner until he has served his sentence whatever period of time that turns out to be. I obtain no assistance from any arguments about the legality or otherwise of his detention prior to his sentence by the Chief Justice.

90. In my judgment, all the elements of Section 12(2) have been satisfied and the Order is therefore, not unlawful. These elements are as follows :

91. It follows, therefore, that the relief sought in this application is refused.

Locus standi

(a)   The submissions

92. As this matter may go further I feel that I ought to set out my views on the question of locus standi. Order 53 Rule 3(7) of the Rules of the Supreme Court provides that the court should not grant leave to apply for Judicial Review unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

93. This provision also appears in Section 21K(3) of the Supreme Court Ordinance, Cap. 4. The Court hearing the substantive application has to determine this matter.

94. The person affected by this Order, namely Reid, does not challenge its lawfulness and has in fact consented to it. What interest has Au in obtaining a declaration that the order is unlawful and a further declaration that the time spent by Reid in ICAC custody does not count towards his sentence of 8 years imprisonment?

95. Mr. McCoy accepted that frivolous and vexatious applicants would not have locus standi. He accepted that this provision was designed to stop meddlesome individuals from being busybodies. He said the provision was required to prevent misconceived applications to the court. He said this was a unique case and accused the respondents of being desperate in making a submission that Au had no locus.

96. His submission amounts to this. Any citizen has the right to complain about an unlawful Order such as the one alleged in this case. He said that where the appropriate person i.e. Reid does not bring the case the court will find sufficient nexus because any individual has the right to have the rule of law vindicated.

97. But in this case he submits there are the additional features of Au being in a gazetted prison and Reid not. Reid is a major witness against Au and the ongoing incentive to please his captors is sufficient locus. Further he submits that Au, being a solicitor has a particular interest in seeing unlawful Orders challenged. Mr. McCoy's submission went so far as to suggest that Au was bringing this application on behalf of not only himself, but all prisoners, all of whom have a sense of injustice at the way in which Reid is being held.

98. In the light of the earlier part of this judgment, it can be seen that there is no factual basis for some of  the ways in which locus standi is put. I doubt whether any prisoner in a gazetted prison would voluntarily change place with Reid if they knew the true state of his detention. The ongoing incentive to please has not been established by any evidence and Mr. McCoy is thus thrown back to arguing that because of the proximity of witness to prosecutor, subtle, unconscious and subliminal factors are at work and that in these circumstances, the appearance of impropriety or influence (direct or indirect) are sufficient to establish locus standi.

99. Mr. Andrew Li Q.C., for Sir David Ford and the Commissioner of Correctional Services, emphasizes that it is necessary to examine the relationship between Au and the matter to which his application relates having regard to all the circumstances. Here the matter is the vires of the order of 5th July 1990 and the lawfulness of Reid's detention under that order. He emphasizes that the bona fides of the Governor have not bee challenged. He further submits that the words "sufficient interest in the matter to which the application relates" are plain words of limitation upon an applicants right to relief.

100. Mr. Li submits that when one is examining an order made in the exercise of a statutory discretion, it is useful to look at the statute and see whether it gives any express or implied right to persons in the position of Au to complain of the vires of the order and the legality of the consequent action pursuant to it. Mr. Li goes on to submit that looking at the Prisons Ordinance, it does not expressly or impliedly give Au any right to complain in any of the following capacities :

101. As to the first 3 categories Mr. Li submits that interference by anybody within those categories should be characterized as interference by a busybody. As to Au s position as an accused person, Mr. Li emphasizes that it has not bee established by Au that Reid's evidence is coloured by his detention with ICAC. Further Au will be afforded every opportunity to cross-examine Reid on his statements and any other relevant matters relating to his custody and the terms thereof.

102. Finally and most importantly Mr. Li submits that the Governor was satisfied that Reid's continued attendance at ICAC was desirable in the interests of justice. It is in the personal interest of Au if the prosecution against him is not pursues thoroughly or at all. If Reid's detention was to be held unlawful and Reid made to go to a prison then Au may well envisage that this will enure to his advantage in some way. Mr. Li submits that that sort of interest which is the very antithesis to the interests of justice is not the sort of interest which a court should recognise as sufficient to found an application for Judicial Review.

103. Mr. Huggins, for ICAC and the Attorney General adopted Mr. Li's submissions on locus standi. He emphasized that Au has no direct or personal interest in the reliefs sought. Those reliefs, if granted, will set aside the Governor's Order and cause Reid to serve his sentence in a prison. As he puts it in his skeleton argument, the effect of such an order will be to cause Reid to be behind prison bars and not ICAC bars eat prison food and not ICAC food and wear prison clothes and not ICAC clothes. Further the declaration sought that time spent by Reid in ICAC custody cannot count towards his sentence is of no effect or benefit whatsoever to Au.

104. Mr. Huggins summarizes Au's answer to the question what interest aces he have in these matters as being "because it causes Reid to provide statements incriminating me which he would not otherwise give if held in prison". Mr. Huggins points out that such an answer is unsupported by the evidence and, as I have already held there is no material before me to the effect that Reid s evidence has, in any way, "improved" as a result of ICAC custody and further there is no allegation of impropriety against ICAC. As to the time spent.  Mr. Huggins submits that Au has given no answer to the question, why it matters to him whether the time spent counts or not.

105. Mr. Huggins further submits that if it were to be suggested, which of course it has not bee by Mr. McCoy that Au's interest in having Reid in prison is because Reid would thereby be more vulnerable or would be less able to assist ICAC with their ongoing investigations (Au being not the only person incriminated by Raid) such an interest would be an illegitimate interest and would be contrary to the interests of justice. Mr. Huggins adds that "... it is hard to dispel the strong suspicion that just such an "interest" is what genuinely lies behind this wholly misconceived application".   Not surprisingly Mr. Huggins invites me to be skeptical about any other "interest" advanced such as a burning desire on the part of Au to see the rule of law vindicated and unlawful Orders set aside.

(b)   The law

106. It is common ground that the leaning case on this subject is Inland Revenue Commissioners v. National Federation of Self Employed and Small Businesses Limited [1982] A.C. 617. The issue in that case was whether the Federation had locus standi to apply for a declaration that the Revenue had acted unlawfully in granting an amnesty to Fleet Street casual workers. The Revenue's appeal was allowed "since looking at the matter as a whole the Divisional Court although justified on the ex parte application in granting leave ought at the hearing inter partes having regard to the nature of "the matter" raised to have found that ... the Federation had completely failed to show any conduct on the part of the Revenue that was ultra vires or unlawful ... (per Lord Scarman) the Federation having failed to Show any gounds for believing that the Revenue had failed to do its statutory duty, had not shown an interest sufficient in law to justify any further proceedings by the court on its application."

107. At page 644 Lord Diplock said that :

"It would, in my view, be a grave lacuna in our system of public law if a pressure group like the Federation or even a single public spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".

108. Sir William Wade in "Administrative Law" (6th edition) at page 701 refers to this decision as giving "a new and liberal but somewhat uncertain character to the law of standing". The new Order 53 was introduced in 1977 in England in Order to "sweep away these procedural differences including in particular differences as to locus standi" (Lord Diplock at page 638E). He was there referring to the differences that existed as between certiorari and mandamus. Lord Diplock also pointed out that the phrase "a person aggrieved" was in common use in statutes at that time but when Order 53 was revamped that phrase was not used out instead "Sufficient interest" was used. If "person aggrieved" was the test for locus, I would doubt whether Au could possibly bring himself within it. "Sufficient interest" is a more flexible phrase although one has to note that the word "sufficient" is a limitation on "interest".

109. It is interesting to note that Lord Scarman put his conclusions thus :

"The Federation having failed to show any grounds for believing that the Revenue had failed to do its statutory duty have not, in my view, shown an interest sufficient in law to justify any further proceedings by the court on its application."

110. I find this is a strange passage because it seems to suggest that if the complaint is well founded locus standi follows automatically. Sir William wade at page 703 says :

"The House of Lords new criteria would seem virtually to abolish the requirement of standing in this sense. However remote the applicants interests, even if it is merely one taxpayer objecting to an assessment of another, he may still succeed if he shows a clear case of default or abuse. The law will now focus upon public policy rather than public interest."

111. I do not read the speeches of the other Law Lords as agreeing with the above quoted passage from Lord Scarman. Sir William wade's view is clearly based on Lord Scarman's speech and with the greatest of respect I think he has gone too far.

112. The facts of the case before me are, as far as the research of counsel show unusual, if not unique. Am I entitled to hold that Au has no locus standi? Were I satisfied that the Order was unlawful, do I, on the facts of this case, follow Lord Scarman's approach and find locus standi if the Order is unlawful and do not find it if I hold otherwise?

113. I accept that the question of locus standi cannot be considered in isolation but rust be considered together with the legal and factual context of the application. Does putting it in that way, as I must, really assist me in this case?

114. Lord Fraser gives some assistance as to the correct approach at page 646 where he says :

"On what principle, then, is the sufficiency of interest to be judged? All are agrees that a direct financial or legal interest is not now required and that the requirement of a legal specific interest lain down in Reg. v. Lewisham Union Guardians [1897] I Q.B. 488 is no longer applicable. There is also general agreement that a mere busybody does not have a sufficient interest. The difficulty is, in between those extremes, to distinguish between the desire of the busybody to interfere in other people's affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates. In the present case that hatter is an alleged failure by the appellants to perform the duty imposed upon them by statute.

The correct approach in such a case is in my opinion, to look at the statute under which the duty arises, and to see whether it gives any express or implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission. On that approach it is easy to see that a ratepayer would have a sufficient interest to complain of unlawfulness by the authorities responsible for collecting the rates. Even if the General Rate Act 1967 had not expressly given him a right to propose alteration in the valuation list if he is aggrieved by an entry therein, he would have an interest in the accuracy of the list which is the basis for allocating the total burden of rates between himself and other ratepayers in the area. The list is public and is open for inspection by any person. The position of the taxpayer is entirely different. The figures on which other taxpayers have been assesses are not normally within his knowledge and the Inland Revenue Commissioners and their officials are obliged to keep these matters strictly confidential .... The distinction between a ratepayer and a taxpayer that was drawn in Arsenal Football Club Limited v. Ende [1979] A.C. 1 for the purposes of defining a person aggrieved under tile General Rate Act 1967 is also relevant to the present matter."

Lord Fraser concluded by stating that :

" ... It would, I think, be extravagant to suggest that every taxpayer who believes that the Inland Revenue or the Customs and Excise Commissioners are giving an unlawful preference to another taxpayer, and who feels aggrieved thereby, has a sufficient interest to obtain judicial review under R.S.C. Order 53. It may be that, if he was relying upon some exceptionally grave or widespread illegality, he could succeed in establishing a sufficient interest, but such cases would be very rare indeed and this is not one of them."

115. Lord Scarman at page 648 was of the view that Order 53 presented no problems of construction. He added this :

"Its terms are wide enough to reflect the modern law without distorting or abridging the discretion of the judges : and it draws attention to a feature of the law, which has peen overlooked in the present case. The sufficiency of the applicant's interests has to be judged in relation to the subject matter of his application. This relationship has always been of importance in the law."

116. At page 653. Lord Scarman quoted Lord Wilberforce in Gouriet v. Union of Post Office Workers [1978] A.C. 435 at 402 where he referred to the courts allowing to individuals "a generous conception of locus standi". Lord Scarman went on to underscore that locus standi was required because "it enables the court to prevent amuse by busybodies cranks or other mischief makers".

117. In R. v. Secretary of State for the Environment ex parte Rose Theatre Trust Co. [1990] 1 A E.R. 754 Schieman J. dismissed an application for Judicial Review by a company which was founded to carry on a campaign to stop development on the site of The Rose Theatre in London. The company comprised distinguished archaeologists, actors local residents and local members of parliament. The learned judge held that the company had no locus standi to challenge the Minister's decision hot to schedule the site because it was a governmental decision of the type in respect of which an ordinary citizen, no matter now distinguished in the particular field, did not have a "sufficient interest" to apply for judicial review. The learned judge stated that when considering a failure to perform a statutory duty it is helpful to look at the statute and see whether it gave an applicant a right to have that duty performed. This seems a little strange because as Sir Harry Woolf has said in his article on "Locus Standi in practice" (see International Perspective on Civil Justice - essays in Honour of Sir Jack Jacob) one of the purposes of judicial review is to provide a remedy which the statute does not provide. If there is a statutory remedy then judicial review is not required. I therefore do not find Mr. Li's argument to the effect that one should look to the statute concerned to see what remedy it provides a very helpful approach.

Conclusions on locus standi

118. I confess to not having found this aspect to the case at all easy. I also confess that when I originally read these papers I thought that locus standi was a foregone conclusion. However the arguments of the respondents and the way in which this case had to be presented on the evidence by Au have given me cause for much thought and anxiety. No court wishes to cause an applicant for judicial review to fail at a threshold stage when clearly there are substantial issues to be determined in the application itself. On the other hand, these proceedings must not be used by Au to attempt to gain a perceived advantage in his forthcoming trial or in respect of any ongoing criminal investigations.

119. The crucial points seem to we to be as follows:

120. Bearing all these matters in mind I have come to the conclusion that Au is in the words of Lord Scarman "a mischief maker". The relief sought here can, at this stage be of no possible advantage to Au. I do not accept that Au is prompted by a burning sense to vindicate the rule of law. I cannot possibly rely upon counsel's assertion that this is in fact Au's motive in the absence of any evidence whatsoever from Au. I believe that this application is motivated solely by the desire to embarrass the prosecution and put Reid in a position where it is more likely that he will be subjected to direct or indirect pressures which may affect his evidence or his attitude towards giving evidence. In my judgment that cannot possibly be a sufficient interest on which to found this application for the intervention of the court. It is neither a legitimate interest nor a sufficient one. I should add that it may be that this application was originally launched as a result of misleading reports in the press as to the conditions in which Reid was being kept. Were the case that Reid was being housed in a suite in the Mandarin Hotel together with other privileges I might well have found that the burning sense of grievance that Au as a remand prisoner, would have could amount to a "sufficient interest" as these proceedings, would be the only way in which that grievance could be aired and rectified. But as I have endeavoured to state earlier in this judgment that is just not the state of the unchallenged evidence before me.

121. I therefore conclude that Au does not have "a sufficient interest in the matter to which the application relates." In so concluding, I do not for one moment, criticize O'Connor J. who was correct, in my judgment at that stage and on the evidence presented to him, to grant the application for leave in respect of the views of the Order.

122. I have therefore concluded that this application fails at the threshold of locus standi as well as on the merits. I therefore do not have to grapple with what would be the position if I had found for Au on the construction point. In this regard Sir Harry Woolf  in the article above referred to stated that he knew "of no case where the court has come to the conclusion that there is a breach of the law being committed by a public body which requires rectifying but because the person making the application has insufficient standing leave should not be granted." (for a case which gets near to this see R.V. Registrar-General ex parted Smith times Nov. 12, 1990.) Whether the present case would have been such a case is not for me to decide in the light of my conclusions. Taking the Scarman approach it would be permissible to conclude that as Au has not made good his complaint he cannot have sufficient locus standi to make it. This approach as I have indicated appears to nullify the need for the threshold to be crossed. The very fact that  locus is required seems to suggest, to my mind, that it was envisaged that in some cases it may well be that the applicant is not the proper person to bring a clear breach of the law to the attention of the Court.

123. Finally I should add that if I had found for Au on construction and locus I would not have considered granting a declaration that the time spent by Reid in ICAC custody did not count toward his sentence. This is a matter in which Au can have no conceivable interest as this matter is, and always has been, a matter for the executive. Speaking for myself I would not have given Au ex parte leave to apply for such a declaration.

124. This application is, therefore, dismissed. I will make a costs Order nisi in favour of the first 4 Respondents and will order a certificate for two Counsel for the 1st and 2nd Respondents.

Representation:

Mr. G. McCoy & Mr. K. Oderberg instructed by Alsop Wilkinson for Applicant.

Mr. Andrew Li, Q.C. & Mr. Y.L. Wong instructed by Allen & Overy for 1st & 2nd Respondents.

Mr. A. Huggins instructed by Herbert Smith for 3rd & 4th Respondents.

5th Respondent in person.