Re Chu Piu-wing
Read the full judgment text of HCMP 121/1984 on BabelCite. This High Court CFI judgment.
1. Pursuant to leave granted by a differently constituted Full Bench on the 27th January 1984, this Bench is moved to commit the Respondent to prison for contempt in not obeying a writ of subpoena issued out of the Supreme Court Registry commanding the Respondent to attend before a police Disciplinary Tribunal and to give evidence on behalf of the Commissioner of Police in connection with disciplinary charges against two police officers.
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HCMP000121/1984
In this case the majority decision was that the witness should be committed to prison for contempt of court on his refusal to give evidence. M.P. No. 121 of 1984 IN THE HIGH COURT OF JUSTICE MISCELLANEOUS PROCEEDINGS
Coram: Hon. Liu, Mayo and Mantell JJ. in Full Bench. Dates of Hearing: 16th March, 1984, 19th, 24th and 25th April, 1984. Date of Delivery of Judgment: 8th May, 1984. ___________ JUDGMENT ___________ Hon. Liu J.: 1. Pursuant to leave granted by a differently constituted Full Bench on the 27th January 1984, this Bench is moved to commit the Respondent to prison for contempt in not obeying a writ of subpoena issued out of the Supreme Court Registry commanding the Respondent to attend before a police Disciplinary Tribunal and to give evidence on behalf of the Commissioner of Police in connection with disciplinary charges against two police officers. 2. Two days prior to the sitting of this Full Bench, on the 17th April the Respondent caused to be filed his affirmation. To this affirmation of the Respondent, I will later return. During the course of his submission, counsel for the Respondent was allowed to move this Full Bench to set aside the said writ of subpoena on the grounds "(1) As a matter of public policy, the respondent should not be required to give evidence relevant to the proceedings before the appropriate tribunal and (2) In all the circumstances, it is oppressive and an abuse of court process to compel the respondent to give such evidence." The Respondent seeks to rely solely on his said affirmation in support of his own motion. In these two motions, for our present purposes the Applicant takes no issue on the allegations made in that affirmation of the Respondent. 3. In September 1983, two police officers were charged with disciplinary offences of conduct calculated to bring the public service into disrepute contrary to Regulation 3(2) (m) of the Police Force (Discipline) Regulations, Cap. 232. A Senior Superintendent was appointed under Regulation 5 of the same Regulations to be what is known as the "appropriate tribunal" to hear and determine the charges. 4. Under Regulation 9(10) of the Police (Discipline) Regulations, evidence before the appropriate tribunal shall not be taken on oath or affirmation. 5. The Respondent was requested in writing to attend before the appropriate tribunal and to give evidence, but in response he indicated that he was not prepared to come or to give any evidence. By a letter dated the 8th November 1983 and delivered personally to the Respondent on the following day, the Respondent was requested to attend before the appropriate tribunal on a specified date i.e. the 14th November 1983. The Respondent failed to attend the appropriate tribunal on the 14th November 1983 as requested or at all. 6. A subpoena ad testificandum was taken out by the Commissioner of Police against the Respondent under Order 38 rule 10 of the Rules of Supreme Court. The command in this subpoena is couched in the following terms:
7. The subpoena so issued out of the Registry of the Supreme Court was, in form, an adaptation from Form No.28 in the "Lists of Forms" to the Rules of Supreme Court. The command in Form 28 reads as follows:
8. The command in Form No. 28 is "to attend ..... and from day to day.....to give evidence". The second "and" in the subpoena in these proceedings is obviously superfluous. "To give evidence" must mean giving all the evidence legitimately required of the Respondent by the appropriate tribunal. The subpoena under consideration is a subpoena ad testificandum which, as I have always understood, is all that is needed to secure the attendance of a potential witness and the giving of his evidence before the specified court or tribunal. I was not troubled by the obvious error in the subpoena or the true purport of it. Moreover, any misgivings seemed to have been wholly dispelled by Mr. Dew's reference to no less an authority than the observation of Lord Denman C.J. in R. v. Greenaway(1). The learned Lord Chief Justice, in delivering the judgment of the court, had this to say at p. 134:
The same observation also appears in a repeated quotation in the judgment of McNeill, J. in Currie v. Chief Constable of Surrey(2) when the learned judge dealt with the "clearly recognised general power in the Queen's Bench Division to issue a subpoena to assist inferior tribunals." I should not leave the judgment of McNeill J. without directing attention to pages 220F/G, 221E and H for the proposition that a subpoena ad testificandum in aid of an inferior tribunal would effectually serve to secure the evidence of a potential witness whatever the prescribed manner and form in which his statement is to be received. In this case, the appropriate tribunal may only take unsworn evidence. 9. Having dealt with the effect of the subpoena ad testificandum in these proceedings, I return to the historical background which led to the motion of the Attorney General. On the 6th December 1983, the Respondent attended the sitting of the appropriate tribunal and was called on his subpoena to give evidence. He gave his own name, address and occupation. Upon being asked to identify any one he knew in the precinct, he declined to do so. He stated: "I do not intend to give any reply" . Upon being repeatedly reminded of his duty under the subpoena, the Respondent said: "I still am not prepared to comment"; "I do not wish to mention what happened in the past. I do not wish to talk about it". With reference to his statements given to ICAC and the proposed calling before the appropriate tribunal of the ICAC officers responsible for the taking of these statements, the Respondent remarked: "I feel it is not necessary to say anything". On being instructed to return on the 7th December 1983, the Respondent, after consultation with his solicitor, commented: "I will behave with the same attitude even if you call me again. As far as I am concerned, this case is over. In any previous statements, it says evidence cannot be used against me", "I don't understand why I need to attend", "I don' t wish to say anything" and "I still have nothing to say, no matter when you call me back". 10. On the 7th December 1983, the Respondent returned to the appropriate tribunal and in the course of its proceedings said: "I refuse to reply whether I did give any statements. I refuse to reply to any questions regarding the statements I gave to ICAC." 11. He returned again on the 12th December 1983 to the appropriate tribunal, and at the hearing of which, he said: "I do not wish to say anything. As far as I am concerned the case is over, in the past. People do not appreciate the trouble I have coming here everyday." 12. On the 28th December 1983, immunity against criminal prosecutions under the Gambling Ordinance and the Prevention of Bribery Ordinance was granted to the Respondent in the following terms:
13. In his last appearance before the appropriate tribunal on the 3rd January 1984, the Respondent refused to answer any questions and he firmly declared: "Let bygones be bygones. I do not wish to mention anything about the past. I refuse to give evidence". Thereupon, the appropriate tribunal took the course as reflected in its recorded notes:
14. Before this Full Bench, counsel for the Respondent categorically stated that come what may, his client would not answer any relevant, material or necessary but harmless questions. It was also confirmed that this was the attitude of the Respondent at every previous sitting of the appropriate tribunal and that such attitude had throughout been consistently maintained. 15. Despite the immunity granted to him in the aforesaid terms, at the sitting on the 3rd January 1984, the Respondent declined to give any reply, including inferentially replies to relevant, necessary or material but harmless questions which the appropriate tribunal could properly put. To each of such relevant, material or necessary but harmless questions, the appropriate tribunal could, by its very nature, have legitimately required an answer from the Respondent. In conclusion, the Respondent evinced a perfectly clear intention not to answer any question on the 3rd January 1984 or at any adjourned sitting, including those relevant, material or necessary but harmless. His attitude on the 3rd January as now affirmed by his counsel was consistent and consistent only with the view that he did not intend and wrongfully refused to give any evidence to the appropriate tribunal and had persisted in that refusal throughout the sitting. Therefore, it would be futile for the appropriate tribunal to put the Respondent's declared intention to test by actually posing any relevant and harmless questions. 16. Lastly, I turn to the Respondent's motion to set aside the subpoena. D. v. National Society for the Prevention of Cruelty to Children, (3) enjoins this Bench to balance the public interest in having all the material evidence before the tribunal and the public interest in preserving confidentiality. 17. In his said affirmation, the Respondent claimed that before he acceded to the plea of ICAC for co-operation by providing information, he "made (himself) clear to them that:
It is further maintained in his said affirmation that he has always been "under the impression that neither the information nor his identity will be disclosed by ICAC to third parties." Whilst the Respondent speaks of his representations or stance to ICAC and his own impression, he has not categorically alleged in his said affirmation that ICAC officers had indeed accepted any of it. But I must hasten to add that the Respondent did, earlier in his said affirmation, claim that before he agreed to supply information, ICAC officers had assured him that he "would not be required to give evidence against the policemen". 18. He was not an informer but a party involved in the same activities on which the present charges against the two police officers are based. If ICAC officers had accepted or proceeded on the basis of the second of his representations i.e. not giving evidence against policemen in court, such a pledge of confidentiality was partial and limited in scope.Whatever promise, if any, given by the ICAC officers would not, without proper authorization, even bind the ICAC themselves, and less so on another independent entity, such as the police. 19. Proceeding, for the time being, on the basis that a pledge of confidentiality was in fact given by ICAC officers, and given with proper authorization, and that for some reasons such pledge ought to be honoured by the police as a separate organization, there is or may be good cause for not retracting or breaching such a pledge so as to preserve the public interest in maintaining all possible sources of information to ICAC. 20. Communication in confidence by itself is not enough. It has also to be established that the confidence is of a kind which the last-mentioned or other public interest requires to be protected. See D. v. National Society for the Prevention of Cruelty to Children ibid at p.218. 21. Confidentiality if ever pledged was not complete but partial. The respondent well knew that his identity and statements had been disclosed to the police whatever his own impression was. He has raised no objection even today. There is no suggestion that the police came into possession of his statements improperly. Public interest in excluding evidence or information varies from case to case. Here, at best, it was limited only to the Respondent's appearance as a witness in court. His identity and substance of his information are known to the police and the two police officers to whom all the relevant documents must have been supplied for meeting the charges made against them. What is left of the alleged confidentiality to be protected? Counsel for the Respondent was unable to offer any valid reason against lifting or removing that limitation said to have been agreed to by ICAC. Except for his firm insistence in holding the "authority" to what was said to be part of a promise, in his said affirmation the Respondent himself made no complaint of and did not specify what prejudices he could possibly suffer in giving court evidence against the police officers. The evidence proposed to be adduced from the Respondent was for use in the charges against the two police officers and not the Respondent himself. Public interest in maintaining the sources of information within the reach of ICAC cannot be, In these circumstances, significantly impaired. With the already full disclosure of the Respondent's identity and substance of his statements to virtually every party concerned, it is difficult to imagine how any one could be much deterred from supplying information to ICAC by the lifting by this Pull Bench of that restriction against giving the same evidence against policemen in the appropriate tribunal. I am assuming, of course, that such a pledge was given and that it would bind the police. 22. The speeches of Lord Hailsham of St. Marylebone and Lord Edmund-Davies in their Lordships' House in D. v. National Society for the Prevention of Cruelty to Children, ibid. at pages 223D, 225D and 242B establish the existence of a presumption that the public interest in having all relevant evidence before a tribunal ought to prevail. The corollary is that such evidence should not be excluded unless there is some other compelling public interest which clearly displaces such a presumption. In this case, I take the view that nothing in the Respondent's contention as advanced to us warrants the ousting of the public interest in having all relevant evidence made available to the tribunal. The value or relevance of the Respondent's evidence as a potential witness is not to be judged after the event in the light of his shattered credibility brought about by his wrongful refusal before the appropriate tribunal but to be judged with him as a willing potential witness whose evidence was sought under the said subpoena. The suggestion that the Respondent might be sued by these police officers on account of his adverse evidence against them in court is highly speculative and contrary to the established qualified privilege of witnesses before such an inferior tribunal. I must not, of course, confine myself to the situation of the Respondent. I have considered the public interest point generally against the background of all potential witnesses in the same situation as the Respondent now finds himself. A breach of the partial confidentiality of the nature the Respondent claims here may likely have the effect of deterring a potential witness from giving all the information he has or possesses to ICAC, but the danger of possible deterrence cannot, in the light of as full a disclosure of identity and substance of information as we have in this case, be serious or even real. In my view, there is no sufficient justification for casting aside the public interest in ensuring all relevant evidence being made available to the tribunal. The proceedings before the appropriate tribunal must not be impeded by the Respondent holding back his evidence. It is not, therefore, against the public interest point or oppressive or an abuse of the process of the court to compel the Respondent to attend and give evidence before the appropriate tribunal. I would not set aside the subpoena on such pledge of partial confidentiality even if it should bind the police. I find that the Respondent was guilty of contempt on the 3rd January. 23. In conclusion, I would allow the Applicant's motion but dismiss the Respondent's motion both with costs against the Respondent, such. costs to be taxed in accordance with Legal Aid Regulations. (1) [1845] 7 Q.B. 126; 115 E.R. 436 (at p.439). (2) [1982] 1 W.L.R. 215 at p.217E. (3) [1978] A.C. 171 Hon. Mayo J.: 24. The Attorney General filed a notice of motion to move the court to commit the respondent to prison for contempt of court. The respondent was required to attend and give evidence in disciplinary proceedings which were instituted under the Police Force Ordinance against two police officers who are presently serving in the Force. The proceedings relate to various matters which are alleged to have occurred some time ago and it is alleged that the two officers and the respondent were engaged in various activities relating to gambling. 25. The respondent refused to cooperate with the Disciplinary Board. He did eventually attend at the Disciplinary Hearing but he refused to give any material evidence. As a result of this a subpoena was issued pursuant to the provisions contained in Order 38 rule 19 out of the supreme Court Registry requiring the respondent to appear at the Disciplinary Hearing and to give evidence. It is evident from the transcript of the Disciplinary Proceedings that the respondent maintained his refusal to give evidence at the hearing notwithstanding the warning which was given to him by the presiding officer at the hearing. 26. During the course of submissions which were made by Mr. Yung who was representing the respondent it became clear that the respondent was claiming some form of privilege from being required to give evidence. He was also claiming that it would be oppressive and an abuse of court process for him to be required to give evidence. Mr. Yung agreed that no application had been made either to the Disciplinary Board or to the High Court to claim the privilege or to formally set aside the subpoena which had been issued. We invited Mr. Yung to consider whether he would like to make any such application prior to our determination of the motion which lay before us. 27. Mr. Yung accepted our invitation. Mr. Daw who was representing the Attorney General agreed to waive technical formalities and abridgment of time required under the rules for the service of a notice of motion. Mr. Yung then drafted his notice and undertook to have it filed in the Registry as soon as possible. 28. It is convenient to deal with Mr. Yung's notice of motion prior to addressing myself to the main notice of motion. Mr Yung placed reliance upon an affirmation affirmed by the respondent on the 17th April 1984. In this affirmation the respondent referred to his earlier involvement in the affairs which are presently being considered by the Disciplinary Board. In short the respondent alleges that he was arrested by officers of the Independent Commission Against Corruption on the 29th September 1981. He was then questioned by these officers. He was informed that inquiries were also being conducted into the activities of police officers involved and he was asked to assist them in these inquiries. Negotiations then took place and he eventually agreed to make a detailed statement subject to the following three conditions. I quote from his affidavit:
After giving the statement he was released on bail. Subsequently he was informed that the information had not been of much assistance and he was prosecuted for various offences. He was convicted and sentenced to nine months imprisonment. He claimed that having regard to the circumstances and in particular to the undertaking which was given to him he should not be required to give evidence in relation to the same affairs in the Disciplinary Proceedings. 29. We are placed in a rather difficult position concerning the respondent's evidence. Mr. Daw informed the court that he was anxious that the matter should be proceeded with expeditiously and accordingly he did not seek an adjournment to place before the court evidence to contradict or call in question the matters referred to in the respondent's affirmation. This leaves us with the position that we must assume that the contents of the respondent's affirmation is unchallenged. 30. Mr. Yung argued that it was clearly not in the public interest that the respondent should be required to give evidence after he had received the assurances of undertakings referred to in the affirmation. If I understood his submission correctly he was arguing that the police or officers of the Independent Commission Against Corruption would not be able to obtain necessary information if it was generally known that they might not honour undertakings they had given. He endeavoured to find support for this submission in Rogers v. Home Secretary (1). In particular he sought support from a passage in the speech of Lord Reid on page 400 of the report.
It is evident from this passage that what is required is for the court to undertake a balancing act. In the present case the factors which have to be balanced are on the one hand the considerations put forward by Mr. Yung and on the other the public interest in ensuring that evidence can be placed before the Disciplinary Board which is determining whether or not serious disciplinary offences have been committed by serving police officers. I have no doubt that if a balancing act is undertaken in this way it is of much greater public interest or concern that Disciplinary Proceedings should not be frustrated by allowing an important witness to refuse to give evidence in Disciplinary Proceedings. It is perhaps also significant to add that the Crown is not in any way desirous of raising any question of privilege on behalf of the Independent Commission Against Corruption and indeed Mr. Daw positively asserted that it was not his intention to do so. 31. Mr Yung attempted to further extend his submission by arguing that the respondent should be treated in the same way as a police informer. It was a well established rule that the identity of police informer was protected. This principle was accepted in the case of Marks v. Beyfus(2). I find it difficult to accept that the respondent should be treated in the same way as a police informer. It is certainly not the case that the respondent of his own volition made any approach to the police or the Independent Commission Against Corruption. He was arrested and if his evidence is to be believed he attempted to negotiate some form of deal with the officers in the Independent Commission Against Corruption. Even taking this evidence at its face value all the respondent was attempting to do was to obtain some form of immunity in exchange for information to be provided by him. This is an entirely different situation to the position which arises when a person makes an approach to the police of his own volition and acts as an informer. However Mr. Yung submitted that the situation was covered by confidentiality. He further argued that if confidentiality could be established the respondent could be protected from giving further evidence. In support of this proposition Mr. Yung referred to a passage in the speech of Hailsham on page 604 of D. v. National Society for the Prevention of Cruelty to Children (3).
32. I do not think that this argument can be sustained. The extent of the immunity conferred by confidentiality is severely circumscribed as is illustrated by a passage from the speech of Lord Diplock in the same case. This appears on page 594 of the report.
I have no doubt taking into account all of the circumstances of this case that the respondent is unable to successfully claim any form of immunity on the grounds of confidentiality. 33. Mr. Yung did not put forward any other substantial grounds in support of his submission that the subpoena should be set aside. Clearly the burden of proving that the subpoena should be set aside rests on the respondent. For the reasons I have given the respondent has failed to discharge this burden. 34. I will now consider the position concerning the main motion. Having found that the subpoenas should not be set aside I do not think that any question of privilege can arise on the main motion. I will therefore consider whether the Attorney General has succeeded in establishing that the respondent has been guilty of contempt of court as claimed. 35. At the beginning of the application we were concerned whether the command contained in the subpoena extended to a command to the respondent not only to appear but also to give evidence. The operative part of the subpoena which was served upon the respondent reads as follows:
This form appears to have been adopted from Form 28 in Appendix A of the Rules of the Supreme Court. The operative part of which reads:
It will be noted that the subpoena which was served upon the respondent departs significantly from Form 28. In Form 28 the person served is required to attend to give evidence. In Form 28 which appears to be a prescribed form under the Rules there is no separate command to give evidence as well as to attend the hearing. I do not think that there was any Justification for the variation which was made in the form which was served on the respondent and I propose proceeding on the assumption that the form should have been in similar form to Form 28. Adopting normal canons of construction for a document of a penal nature I would be reluctant to interpret the meaning of the document in a way which would be unfavourable to the respondent. However at our request Mr. Daw undertook some research to ascertain how courts have interpreted the scope of subpoenas in the past. 36. It is perhaps surprising how little modern authority there is on this. McNeill J. did consider the position in passing in Currie and Another v. Chief Constable of Surrey(5). He certainly appears to have been under the impression that the command in a subpoena extended to a requirement for the witness to give evidence as well as to attend. It is possible though that McNeill J. may have been laboring under a misapprehension as it would appear from his judgment that he may have misread the wording of the prescribed form of subpoena used in England which is in similar form to Form 28. However Mr. Daw took us through a number of nineteenth century cases including Anon (circa 1660)(6), Flowerday v. Collett(7), Hennegal v. Evance(8), Wisden v. Wisden(9),Amey v. Long(10), R. v. Greenaway, R. v. Carey (11) and R. v. Vickert (12). None of the passages referred to in these cases specifically resolved the matter one way or the other although the authorities all tended to indicate that there was a requirement for the witness to also give evidence. Perhaps the most helpful passage considered was an extract from the judgment of Lord Denman C.J. in The Queen v. Greenaway (11) :
37. Some assistance can also be derived from a passage which appears in the report of Ex Parte Fernandex(13):
Finally Mr. Daw referred us to a passage which appears at page 325 of the second edition of Atkins Court Forms:
38. Having reviewed and carefully considered all of the law available to us on this subject I have come to the conclusion that the command contained in Form 28 does extend to a requirement for the witness to give evidence. During the course of submissions some time was spent on the question as to whether this requirement to give evidence included a requirement for the witness to answer all material and relevant questions which were put to him. I do not consider that it is necessary to go on to consider the extent of the obligation which exists. I say this because it is evident from the transcript of the Disciplinary Proceedings that the respondent evinced an intention not to answer any material questions which were to be put to him. In addition to this Mr. Yung informed us that his instructions were that the respondent still adhered to that position notwithstanding any order that we may see fit to make. 39. I am satisfied that the Attorney General has proved that the respondent refused to give evidence after being subpoenaed to do so. I accept that the command contained in the subpoena extends to a requirement for the witness to give evidence and this being the case the respondent is guilty of contempt of court as prayed in the notice of motion. (1) [1973] A.C. 388 (2) 25 Q.B.D. 494 (C.A.) (3) [1977] 1 A.E.R. 589 (4) [1973] 2 All E.R. 1169 at 1184 (5) [1982] 1 W.L.R. page 215 (6) Freeman Ch. 164; 22 E.R. 1110 (7) [1756] 1 Dick 288; 21 E.R. 279 (8) [1806] 12 Ves Jun 201; 33 L.R. 77 (9) [1849] 6 Hare 547; 67 E.R. 1281 (10) [1808] 103 E.R. 653 (11) [1845] 115 E.R. 436 (12) [1848] 116 E.R. 946 (13) 10 C.B. (N.S.) 40 Hon. Mantell J.: 40. We have two motions to consider. Chu Pui Wing moves the court to set aside a subpoena ad testificandum addressed to him and which relates to a hearing before a police disciplinary tribunal. The Attorney General moves the court to commit Chu Pui Wing for contempt of court in refusing to obey the terms of the subpoena. By general consent the two motions have been heard together, and in truth the issues involved do overlap to a considerable extent. It is accepted that if Chu Pui Wing succeeds on the motion to set aside the subpoena, the Attorney General must fail on his motion to commit for contempt. 41. The material facts are as follows. On 29th September 1981, Mr. Chu was arrested by officers of the ICAC in connection with corruption offences. On the same day, he made a statement under caution admitting certain offences for which he was eventually tried, convicted and sentenced to 9 months imprisonment. He has served that sentence. During the time that he was held under arrest, he was interviewed with regard to matters quite separate from those for which he was eventually charged. He made three statements, the first on 30th September 1981 and the second and third on 23rd October 1981. Those statements contained information which, if true, reflected very seriously upon the integrity of certain police officers whose names had not previously been mentioned. The circumstances in which the statements were made appear from Mr. Chu's affirmation. The affirmation is uncontradicted and, since it contains nothing which is not credible, must be given effect to by this court. I recite paragraphs 2, 3 and 4 of the affirmation:
It would follow, of course, that the statements made on 30th September and 23rd October would not be admissible in criminal proceedings against Mr. Chu and it is right to say that he has never, at any time, been charged with any offence disclosed in those statements. However, as we have seen, he was prosecuted for the offences disclosed in the statement of 29th September and he was issued with a subpoena to appear before the police disciplinary tribunal which had been convened to enquire into the activities of two of the police officers mentioned in the statements of 30th September and 23rd October. That was in clear breach of the promises made to him that he would not be prosecuted for the offences for which he had been arrested and that he would not be required to give evidence against the policemen mentioned in the later statements. Nonetheless he did answer to the subpoena by attending the tribunal on 6th December 1983 and on each occasion thereafter when required so to do, and when called into the witness box(the tribunal was not empowered to take evidence on oath or affirmation), he gave his name, address and occupation but beyond that refused to say anything. In particular, he refused to repeat or confirm the information given to the ICAC officers contained in the statements to which 1 have referred. On 6th December, he used such phrases as "I do not intend to give any reply". "I do not wish to mention what happened in the past." "I do not went to talk about it." And later on the same day, his attitude was similar. "I will behave with the same attitude even if you call me again. As far as I am concerned this case is over. In any previous statements it says evidence cannot be used against me. I still have nothing to say no matter when you call me back." On the next day, 7th December 1983, the statements, which for some incomprehensible reason had been received in evidence as exhibits, were put to Mr. Chu but he refused to say whether or not they were his. He said "I refuse to reply to any question regarding the statements I gave to ICAC." Given a further opportunity later the same day, he repeated that he did not wish to say anything. "As far as I am concerned, the case is over, in the past. People do not appreciate the trouble I have coming here everyday." Now, it is clear beyond a peradventure that up to this time Mr. Chu was entitled to claim privilege against self crimination. That he did not do so is equally plain and that it was not the reason for his refusal to answer appears from the affirmation. Still, the view was taken that his right to claim privilege on that ground might well be an answer to a motion to commit for contempt of court and accordingly on 28th December 1983, he was served with a letter from the Attorney General which has been described somewhat loosely in these proceedings as an "immunity from prosecution". It should be noted also that at no stage up to 28th December 1983 or thereafter was he ever warned by the Adjudicating Officer that he need not answer any question, the answer to which might incriminate him. On 3rd January 1984, the tribunal reconvened. The fact that the so called immunity from prosecution had been granted was mentioned and Mr. Chu is recorded as having, said "Let bygones by bygones, I do not wish to mention anything about the past. I refuse to give evidence." In answer to the Adjudicating Officer, he said "I have already been sentenced to prison it is in the past. It causes me great annoyance to come here all the time." There then appears in the record a statement to the effect that the Adjudicating Officer explained to Mr. Chu at length the effect of the subpoena ad testificandum and that in consequence of his attitude the High Court was to be moved to commit for contempt of court. 42. I must assume that the information given to the ICAC officers by Mr. Chu and the evidence required of him is not satisfactorily available from any other source, at least as to the particulars. It was, I deem, entirely in the public interest that the ICAC should be made aware of the identities of police officers who subordinate their duty to suppress crime to the practice of extortion. Indeed, it would be difficult to think of many more extreme examples of the public interest being served by the giving of information to an appropriate authority. That the information was received from Mr. Chu qua informer, I also have no doubt .Whether or not he volunteered the information is nothing to the point. Nor is there any rule of which I know that a person who is particeps criminis is to be excluded from the category of police informer. Strictly a police informer is simply someone who supplies information to the police though I suppose in the context with which this court is concerned it might mean someone who supplies information on the understanding that the fact that he has supplied it will not be made known. 43. Now it has long been held that a witness may not be asked if he is a police informer and neither may he be asked to disclose the name of the informer if a third person. The rule does not apply, of course, if the disclosure of the name of the informant is necessary to the proper defence of an accused person. In the nature of things, the objection to such questions would normally be taken on behalf of the Crown and so it came to be thought that it was a species of Crown privilege. That was not right. It is not a question of privilege as such but a question of public policy. And the right to object does not reside exclusively in the Crown. So much appears clearly from the judgment of the Master of the Rolls in Marks v. Beyfus. (1)Having referred to the principle which says that an innocent man is not to be condemned when his innocence can be proved, Lord Esher went on to say:
Lord Esher in that case took it that the public policy rested upon the fact that disclosure was sought in a public as opposed to private prosecution; so too did the other members of the Court of Appeal. That is no longer the position as appears from the decision of the House of Lords in D. v. National Society for the Prevention of Cruelty to Children.(2) There it was held that similar considerations applied in civil proceedings. I see no reason why any different principle should obtain in proceedings before a police disciplinary tribunal. Since it is not a question of privilege as such but the safeguarding of the public interest which is at stake, the point falls to be taken not only by the Crown but by any interested party or if necessary by the trial judge or adjudicator himself. (3) Of course, I accept that the rule involves on occasions the balancing of two conflicting policies but where the information comes, as here, from a police informer, I would respectfully adopt the approach of Lord Diplock in the later of the two House of Lords' decisions (4) namely that the balance should fall on the side of non-disclosure except when on the trial of a criminal offence disclosure of the identity of the informer could help to show that the defendant is innocent of the offence. 44. The principle I collect from the cases is this. An informant, however unworthy of protection, in giving information to the authorities may do so at some risk to himself. At one end of the scale the risk may be merely of suffering embarrassment; at the other of serious physical injury or even death. Of course, the risk arises once his identity is made known and it may be said that once that has happened there is nothing left to protect. But it is not so. In fact, the risk increases or may increase with the making known of the nature and extent of the information given and reaches its high-water mark if and when the informant is called upon to give evidence. For that reason many who are possessed of information vital to the public interest and who are themselves members of or on the fringes of the underworld are reluctant to pass on that information, whatever the inducement, unless they feel safe from such exposure. Therefore, in the public interest, the courts have offered their protection and it seems to me that in principle such protection must apply to each stage of the judicial process up to and including the giving of evidence by the informer. That is precisely this case. We have heard it said that the promise by the ICAC does not bind the police, and that may be so. It may also be that the police are not to be criticized. It may also be said that Mr. Chu is undeserving of protection. In my judgment, those considerations matter not. What the court must look to is the encouragement of others in the position of Mr. Chu to come forward with information, and only incidentally to that end does the court intervene to lend its protection to the informant. In my judgment, the subpoena ad testificandum in so far as it requires Mr. Chu to give evidence before the police disciplinary tribunal is oppressive and should be set aside. For the same reason, I do not find Mr. Chu's refusal to answer questions on these matters, if refusal it was, to be any contempt of this court. As to whether the issue of the subpoena in plain breach of a promise not to do so is such as to render the subpoena oppressive or an abuse of the process of the court has not been fully argued before us and upon that question, I prefer do not express my view. 45. Because I am differing from my brothers Liu J. and Mayo J., I feel it right and necessary to consider Mr. Yung's further submissions. There are three of them. Firstly, be says that the subpoena ad testificandum does not command the giving of evidence merely attendance at the hearing, and, therefore, the refusal to give evidence is no contempt. Secondly, he says that the immunity offered by the Attorney General was by its terms insufficient to deprive Mr. Chu of the right not to answer incriminating questions. Thirdly, he says that it does not appear from Mr. Chu's last appearance before the tribunal that he refused to answer any question and therefore that he did not refuse to give evidence. Each of those submissions is cast in the alternative. I shall deal with them in order. 46. The subpoena ad testificandum addressed to Mr. Chu was in these terms:
47. I have omitted the names of the police officers concerned and the underlining of the word "and" is also mine. By Order 38 rule 14(1), writs of subpoena must be in Form No. 28, 29 or 30 whichever is appropriate. In this case, it would be Form 28. Form 28 does not have any "and" before the words "to give evidence etc." The point is not taken that the subpoena is bad by reason of the introduction of the conjunction but this court is invited to look at the subpoena as if it were in proper form and it is submitted that in the absence of any conjunction, the command issues only to the addressee's attendance and not to the giving evidence. The words "to give evidence etc." simply indicate the purpose for which attendance is commanded. Authority apart, the argument is not unattractive because the words of the subpoena must be construed in the sense most favourable to the alleged contemnor. There is little authority on the point. The court was referred to the decision of Mr. Justice McNeill in Currie v. Chief Constable of Surrey, (5) who expressed the view in passing that where a subpoena ad testificandum had issued out of the Crown office to assist a police disciplinary tribunal that the subpoena was an order to compel attendance before the disciplinary hearing and to give evidence at the hearing in the form which it, that is the tribunal, receives evidence namely unsworn. That decision helps, I think, on the question of whether or not a subpoena will lie to assist an inferior tribunal not empowered, as in this case, to receive evidence on oath or affirmation. It is, I feel, of little help with regard to the extent of the subpoena in so far as the learned judge proceeded on the assumption that the words "and to give evidence on behalf of the Chief Constable of Surrey" were properly included within the terms of the subpoena. Upon a reading of the White Book,(6) it might be thought that Ex parte Fernandez(7) and Attorney General v. Clough(8) are support for the proposition that the subpoena ad testificandum extends to the giving of evidence. In fact, the first of those two authorities simply goes to the question of whether or not the refusal by a witness to answer before a court of superior jurisdiction amounts to a contempt and the second, if anything, supports the contrary proposition for which the Attorney General contends. It was a case which turned upon the application of section 1(2)(b) of the Tribunal of Inquiry (Evidence) Act 1921 which constituted it a contempt for any witness to refuse to answer a question before a tribunal to which the Act has reference. Inferentially, therefore, without the statutory provision, there would be no contempt whether or not the witness had attended upon subpoena. However, the diligence of Mr. Daw has produced two authorities which have satisfied me that at common law a subpoena ad testificandum issued in assistance of an inferior court or tribunal did carry with it the command to give evidence. They are both decisions of a court over which Lord Denman C.J. presided. In the first, The Queen v. Greenaway,(9) the court was moved to issue a writ of attachment against a parish officer for contempt in disobeying a summons issued out of the High Court which required him to produce before Justices of the Peace in Petty Sessions certain documents in his custody. Lord Denman C.J. said this:
In The Queen v. Vickery,(10) the court was concerned with a motion for attachment for disobeying a Crown office subpoena to give evidence at Petty Sessions where the subpoenaed party had denied that he was bound to give evidence against his own parish. The court held that the witness was compellable to give evidence and that the writ of attachment would lie. Mr. Daw was also able to cite the opinion of the distinguished editor of Atkin's Court Forms (11) and, although other authorities brought to the attention of this court were to my mind peripheral to the point, I am satisfied that if one construes Form 28 in the light of the practice at common law, one is bound to give it the more liberal construction as the Attorney General submits. 48. A witness is entitled to claim privilege in respect of any evidence which might lead to his being exposed to the risk of either a criminal conviction or the imposition of a penalty. There are statutory exceptions. Archbold records the fact that it has been held at the Central Criminal Court in London that an undertaking by the Director of Public Prosecution that the witness will not be prosecuted for any offence disclosed by his answers in the witness box has the effect of taking away the privilege on the basis that he has nothing to fear from the giving of evidence. No authority is cited but it is a practice which has continued now for many years and is well known to this Court. But one must be careful to look to the terms of the undertaking given or immunity offered. And the distinction must clearly be made between an undertaking which is sufficient to persuade a witness to go into the witness box to give evidence and one which is sufficient in its terms to deprive him of the privilege of refusing to answer criminating questions. An undertaking not to prosecute "on condition that you give full and true evidence" or which limits the immunity to certain classes or offence would not, in my judgment, be sufficient to deprive a witness of the right to privilege. In my judgment, to have that effect, an immunity or undertaking must hold the witness safe against prosecution for any offence disclosed in the course of his evidence and the only permissible exception might be in respect of perjury committed during the course of that evidence. In this case, the immunity offered to Chu Pui Wing was in these terms:
In my view, that undertaking falls short of what is required to deprive the witness of his privilege on two grounds. In the first place, it is conditional undertaking and the judgment as to whether the evidence has been full or true rests with the Attorney General. In the second place, it limits protection to offences under two specific Ordinances and is not wide enough to give immunity for any offence lying outside their terms. Mr. Yung has given us examples of other charges which might be laid, as to which, Mr. Daw takes no issue. So it follows, in my judgment, that it was open to Mr. Chu even at the last of the hearings on 3rd January 1984 to decline to answer questions relating to the contents of the statements which he had made on the ground that his answers might criminate him. But the fact is that warned or not it was for him to claim the privilege, and he did not. Does that now render him liable to be committed for contempt I cannot see that it does. Can it be right that a witness who exercises a right not to answer questions but through ignorance or for some other reasons fails to disclose his justification in so acting is to be held in contempt of court even though on the questions being put to him against he might properly have declined to answer and state the ground for his refusal? That would be a strange result indeed. And so much seems to be acknowledged by the Attorney General by the course taken in this case. So questions of public policy apart and assuming that the subpoena does run, I cannot hold myself satisfied that any contempt has been proved against this Respondent. 49. The last of Mr. Yung's propositions may be dealt with quite shortly. It lacks the merit of the other two. On the last occasion that he appeased, Mr. Chu made it quite plain that he was not prepared to answer any question which might be put to him. That amounted to a refusal to give evidence and it would have been a perfect charade for either the Prosecuting Officer or the Adjudicating officer to persist in putting questions which they knew would elicit no response. Had I found differently in respect of other questions Mr. Yung's last point would not, in my judgment, have prevented the Attorney General from succeeding on the motion for contempt.
(1) [1890] 25 Q.B.D. 494 at p.498 (2) [1978] A.C. 171 (3) per Lord Reid in Rogers v. The Home Secretary [1973] Appeal Cases 388 at p. 400 (4) at page 595 (5) [1982] 1 W.L.R. 215 (6) 52/1/8 (7) [1861]17 30 L.J.C. C.P. 321 (8) [1963] 1 Q.B. 773 (9) [1845] 115 English Report 436 (10) [1848] 116 E.R. 946 (11) Atkin's Court Forms 2nd Ed. Vol. 18 p.325 Representation: Mr. J. Daw, Crown Sclicitor for the Attorney General/Applicant. Mr. Y.W. Yung instructed by D.L.A. assigned for the Respondent. M.P. No. 121 of 1984 REASONS FOR SENTENCING What I am about to give is the majority view of this Court. The conduct of the Respondent has been clearly set out in the judgments and I do not propose to repeat it. The conduct of the Respondent in not obeying the subpoena served upon him is, of course, very grave. The majority of this Bench have taken into consideration all that has been said by counsel on his behalf. Any wrongful refusal to obey a subpoena would undermine administration of justice and must be deterred. The majority of this Court is of the view that a sentence of six months is appropriate. The order, therefore, of the majority of this Court is as follows:
Representation: Mr. J. Daw, Crown Sclicitor for the Attorney General/Applicant. Mr. Y.W. Yung instructed by D.L.A. assigned for the Respondent. |