Attorney General v. Lui Lok

HCA000025/1978

No. 25 of 1978

Claim by Crown to recover from former police officer monies corruptly received. Defendant out of jurisdiction and outstanding warrant for his arrest. On application for evidence of (a) defendant and (b) his father to be admitted under Evidence Ordinance held:-

On the facts, and on the Crown's claim for an account and for proprietory relief in respect of properties purchased with corrupt monies held:-

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Hunter.

Date: 5 April 1984

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RULING

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1. I have now to rule upon the defendant's application for the evidence of himself and his father Lui Koo to be admitted under section 47 of the Evidence Ordinance in the form of written statements. It is an important matter because I have been told that it is the only evidence which is being tendered on behalf of the defendant in this case. It is also a matter of some significance to lawyers having regard to the legislative differences which now exist between the law in Hong Kong and the law in the United Kingdom.

2. The factual background is this. After his retirement from the Police Force in May of 1969, the defendant left the colony, and has ever since lived abroad. There has been a warrant for his arrest outstanding for some time, which explains his unwillingness to return. His father, likewise, I understand, followed suit. It is common ground that both are at present living in Taiwan and accordingly are "beyond the seas".

3. As far as the defendant himself is concerned, he is well able to return. There is no physical or financial impediment. The matter is one of choice, plainly explained by the outstanding warrant. As far as Lui Koo is concerned, the position is somewhat different. He is now aged 82. I had put before me a medical certificate dated 24th February of this year in which he is said to be suffering from four conditions. It may be possible to paraphrase them as "old age"; but specifically it is said that he should "avoid mental and physical stress".

4. The question as to how these two gentlemen's evidence should be given came before the court at earlier stages in this suit. As far as the father was concerned, on the 21st December 1981 an order was made by consent for his evidence to be taken before a special examiner in Taiwan. If that had happened, he would have given evidence on oath which would have been recorded; then he would have been cross-examined and that would likewise have been recorded. But that order was not in fact taken up. In December 1982 it was said that he was too ill to be subjected to the strain of giving evidence. It follows that this proposed method of putting his evidence in, is very much a matter of last resort, and on any view must seriously effect any weight that I could give to it.

5. As far as the defendant himself is concerned, he has been the subject matter of a reported decision, Attorney General v. Lui Lok (1982) H.K.L.R. 413 where the Court of Appeal refused to allow his evidence likewise to be taken before a special examiner in Taiwan. There is one sentence in the judgment of Cons J.A. who gave the leading judgment in the Court of Appeal which is much relied upon by the Crown and is this: "It would in my view be quite wrong for the Courts of this colony to make such an order in favour of a person who could rightly be said to be ordinarily resident here, yet by his own choice and action has deliberately put himself beyond their jurisdiction".

6. It is in those circumstances that this application is made. There are two notices before me. The defendant's notice asks for a statement made by him to his solicitor on the 6th March of this year to be admitted on the ground that "he cannot be called as a witness at the trial because he is beyond the seas". In respect of father, the notice is very similar. The defendant is likewise asking for his statement made to his solicitor on the 6th March of this year to be admitted, upon the basis that father "cannot be called as a witness at the trial because he is beyond the seas and it is unfit by reason of his bodily condition to attend as a witness". So for himself the defendant relies upon a single reason;  for father on two.

7. In answer to that, counter notices were served which in respect of the defendant take three points: first, that cross-examination is essential in his case; secondly that to allow his evidence to be taken in this way would be an abuse of process quoting from the judgment of the Court of Appeal to which I referred; and thirdly that he is beyond the seas by choice. It says this: "It is contended that the defendant is a wealthy retired man with the time and money to come to Hong Kong to give evidence if he chooses to do so". As a matter of fact that statement is not contested. The point was originally taken that the notices were out of time, but that has not been pursued. In respect of father, reference is made first to the history of the earlier orders which I have already recited, and secondly to the need for cross-examination.

8. Now, in answer to that Mr. Martin Lee Q.C. for the defendant, in substance said this. First there is no direct relevance in the decision of the Court of Appeal. It related to a different subject matter. His client may be "a fugitive from justice" in the words of Mr. Justice Cons, but that does not put him under a disability. He has the same rights as any other litigant in this court. Secondly on the true construction of the Ordinance and the Rules, and on authority, there is only one question which arises upon this application and that is: Is the witness beyond the seas? Thirdly, if the answer to that is "yes",  then the defendant has the right to put these statements before the court in this form. Fourthly the court has no residual discretion in this matter to reject the statements. Finally any comment or criticism which the court may make about the defendant's conduct goes to the weight to be attached to the statement, not to its admissibility.

9. Now in answer to that the Crown through Mr. Graham, in effect says this: First it is quite true this man is not under any disability at all. But he is not entitled to any favours, and he has chosen not to come. Secondly Mr. Lee's authority does not cover the position here in Hong Kong. Thirdly on a contested application of this nature the court has, or may have to consider, not one question but three. The first question is Mr. Lee's namely: Is the witness beyond the seas? If the answer to that is "yes"; then the second question arises: Can he give evidence? If the answer to that is "no", then the third question does not arise. But if the answer to that question is "yes" then the third question does arise which is: Should he give evidence? These questions, particularly the third, involve an exercise of judgment in the court which is called upon to make a decision. Fourthly he submits that even if these three questions are answered in the applicant's favour, the court has a residual discretion to reject the evidence in the interest of fairness and justice, if it comes to that conclusion. So that the heart of this matter comes down to this: Does an application of this nature raise one question as Mr. Lee asserts, or possibly three as the Crown asserts.

10. Before trying to answer that, it is necessary to refer to the legislative history. This started in 1968 in the U.K. with the passage of the Civil Evidence Act of that year. That was followed in Hong Kong in 1969 by the enactment of Part IV of the Civil Evidence Ordinance, which followed the English Act more or less verbatim. Both Acts contained their own rule making power. It was in section 8 of the English Act and section 53 of the Hong Kong Ordinance. That rule making power was closely defined and confined. It is not unfair, I think, to say that the section put the rule making authority in a statutory strait-jacket. Pursuant to that power rules were made in the United Kingdom, and after 1969 rules were made in Hong Kong. Those rules are to all intents and purposes again identical in both jurisdictions.

11. In that state of play the true construction of the Act and the Rules came before Finer J. in England in Rasool v. West Midlands Passenger Transport Executive (1974) 3 All E.R. 638. The matter again came before the court in England in Piermay Shipping Company S.A. and another v. Chester (1978) 1 W.L.R. 411. Now Finer J. concluded that there was simply one question which arose, the question advanced by Mr. Lee. In the Piermay decision Donaldson J., as he then was, described himself as a "reluctant convert" to that conclusion. The matter was treated as plain in the Court of Appeal on the construction of the Act, and the Court of Appeal declined to give any extended or differing meaning to the Rules.

12. If that was still the position, I think, sitting as a judge of first instance in Hong Kong, I would be constrained to follow those decisions. But it is not, because in 1980 there was enacted here the Evidence Amendment Ordinance and that basically did two things. First of all it repealed section 53 of our Ordinance, which was the rule making power, and likewise it repealed a parallel rule making power in section 57, which related to that part of the Ordinance which followed the 1972 Act in England. So that the specific rule making power with its limitations was struck out. In its place there was put a general rule making power, based upon section 54 of the Supreme Court Ordinance.

13. The whole question is: what is the effect of this? For the applicant Mr. Lee says, virtually nothing at all: because you have still got the same rules; you must still give them the same meaning; you must therefore still follow the English decisions. The contrary view put by Mr. Graham, goes something like this. It must be presumed that the legislature here acted with knowledge of the U.K. decisions and to some purpose. It must be taken that the removal of the statutory strait-jacket was deliberate. The minimum effect of that is that one now looks at the rules without that strait-jacket in mind; and one looks at the rules and gives them their apparent, natural and ordinary meaning. He submits that if you follow that approach, the rules produce the answer for which he contends.

14. In order to understand that I think that it is necessary to look at three elements in what I have called the statutory strait-jacket which were identified by Finer J. in the Rasool decision. The first point to note is that the provision is mandatory in terms. It repeatedly says that the rules "shall" provide for this and "shall" provide for something else. I think the only qualification that I have seen is in sub-section 53(2) which is "subject to such exception (if any) as may be provided for". The second point is that section 53(2)(a) provided for the giving of notice by the person who wanted to introduce the statement in this way. That was followed by sub-section 2(b) which says "any party who receive such notice" can by counter-notice "require any person of whom particulars were given with the notice to be called as a witness in the proceedings unless that person ..... is beyond the seas". So that transposing those words one can see this: If the person is beyond the seas there is no power to give a counternotice at all, requiring that person to be called as a witness. This provision is very closely drawn and is absolute. There is an interesting contrast between it, and what originally was contained in the 1938 Evidence Act (the very first step in this evidential process) where the parallel provisions which talked about a person being beyond the seas had this added qualification "and it is not reasonably practicable to secure his attendance". Now not only was that dropped from the 1968 Act in England, it was ruled out completely. The only question which this section raises as a matter of fact is: Is the person beyond the seas? Secondly the same approach goes for five other reasons which are set out in this sub-section and which are later to be found in rule 25 and which I shall refer to as the rule 25 reasons. Again each time no right to give a counternotice arises unless a certain factual situation exists.

15. The third element in the strait-jacket is section 53(3)(a) which says that the rules may confer a discretion on the court to admit a statement where the rules have not been complied with, "but except in pursuance of paragraph (b) shall not confer on the court a discretion to exclude such a statement where the requirements of the rules affecting its admissibility have been complied with". So if you fail to comply with the rules the court can admit the statement. If you do comply with the rules the court cannot refuse to receive it, except under paragraph (b) of that sub-section which relate to very special circumstances of no relevance here.

16. It is hardly surprising therefore when one sees those three elements in this statutory strait-jacket, that Finer J. came to the conclusion that he did, and that the argument under the Act was regarded as completely impossible by the Court of Appeal in Piermay.

17. Now I come back to the rules. I shall endeavour to read those without any preconceived views having regard to the fact that this strait-jacket has now gone. The first relevant rule is O.38 r.32 which provides for the giving of notice by the person who wishes to have a statement admitted in this way. R. 22(3) says this: "If the party giving the notice alleges that any person particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in rule 25, the notice must contain a statement to that effect specifying the reason relied upon". To make sense of that one has to go on to rule 25, which picks up the five reasons which were originally set out in the statute. It is in these terms (the numbers added are mine). "The reasons referred to in rule 22(3) ..... are:

18. I think one only has to look at those two opening rules to see that the Rules Committee appear to have departed materially from the second part of the statutory strait-jacket, because they have not simply said, as they might have done if they were strictly following section 53(2)(b), that the notice must say whether the person falls within one or other of the categories in rule 25. They have added these words: "Cannot or should not be called as a witness for any of the reasons". Now that introduces, as I see it, two new concepts. "Can" and the disjunctive "or should". These two concepts are said to be applicable, one or other or both of them, to all the reasons. One can readily see circumstances in which they could apply. First, the person is dead. Death terminates all arguments and it is perfectly obvious that the person cannot be called. But consider the third reason. It is not difficult to visualize circumstances where the person is so disabled that he cannot physically attend as a witness; equally it is not difficult to visualize circumstances where it may be just possible for him to attend but highly undesirable that he should run the risk having regard to his condition. It seems to me in that situation the court might well wish to say, that he can come, but he should not. The fourth reason must be a case of "cannot", because if you cannot find the person, it is perfectly obvious that he cannot be called. The only question is "yea or nay" has reasonable diligence been exercised. The fifth one is a plain case of "should" because someone in that category can be called, and the issue is whether it is a waste of time that he should be called. So one can see circumstances in which both these concepts can apply individually and, in one case at least, collectively to these reasons.

19. Now if that be the case for four out of five reasons I ask myself why could not it equally apply when the person is "beyond the seas". Taking first of all the case of a witness, the question "can" will normally be decisive either on the basis of physical impossibility or legal impossibility, because the witness who has taken himself outside the jurisdiction cannot be reached by subpoena, and there is no way in which the party can compel his attendance. But that is not so readily applicable to a party himself. If there is no physical or financial impediment it is possible for him to come, if he wishes, and then the question seems to arise under these rules whether he should attend. Now if that is the prima facie effect of the rules requiring the giving of notice then it suggests that there is not one question but three.

20. I go on to the next rule which deals with counternotice. That is r.26(2): "Where any notice under rule 21 contains a statement that any person ..... cannot or should not be called as a witness for the reasons specified therein, a party shall not be entitled to serve a counternotice under this rule requiring that person to be called as a witness of the trial or hearing of the cause or matter, unless he contends that that person can, or as the case may be, should be called, and in that case he must include in his counternotice a statement to that effect". This rule seems to me expressly to confirm the prima facie meaning which I have put upon the two rules that I have read. The issue is not simply whether the witness comes within any of the categories in rule 25. He may come within one of those cateogries, but the party is permitted to contend that he either can or should be called.

21. The last relevant rule as I see it, is rule 27(1): "Where in any cause or matter a question arises whether any of the reasons specified in rule 25 applies in relation to a person that question may be determined prior to the heraing". Now there are two possible constructions of this. One is the narrow view that "the question whether any of the reasons specified applies" means no more than is the person within one of the categories in rule 25. That comes very much closer to the old statutory strait-jacket. The other view is that is simply raises the question whether the reasons in the notice are made out i.e. whether in the terms of the notice the witness cannot or should not be called because of the reason given. It seems to me that the second meaning fits better my prima facie construction of the earlier rules.

22. In these circumstances in my judgment on an application under these rules which is contested, three questions may arise. The first question is: Is the witness within one of the categories in rule 25? The second question is: If so, can he be called as a witness? If the answer to that is "no", that is the end of the inquiry. But if the answer to that is "yes" then you have to ask the further question: Should he be called as a witness? It seems to me further that the court which is called upon to answer those questions and to rule upon the application, has in relation to the third, the "should" question, to exercise its judgment as best it can in all the circumstances, having regard to the interests of the parties, the balance of convenience and the interests of justice. I do not want to get involved in a philosophical discussion as to where judgment ends and discretion begins, but I would regard that exercise as one of judgment rather than discretion.

23. Thirdly it seems to me that if all these questions are answered in favour of the applicant, then the court has no residual discretion to reject the application. I think the rules as they are at present drawn echo or reflect the old terms of section 53(3)(a), and that the rules themselves contain a special code for admissibility. I am far from sure that any residual discretion can be said to exist or arise outside these rules which would entitle me to reject the evidence even though the rules are complied with.

24. Now directing myself in that way, I pose these three questions, first of all in relation to the defendant. (1) Is he beyond the seas? Answer: Yes. (2) Can he be called? Answer: Yes. (3) Should he be called? This is the decisive question. I think I should start here by referring to another passage in the judgment of Cons J.A. in the decision I have already referred to, where he said this: "The established form of trial is for parties who wish to give evidence, to be examined viva voce in court before the judge who has to determine the issues. The defendant is asking us to depart from that norm, and the only reason he puts forward in support is, that he is fleeing from the justice administered by the same court to whom he makes his request". Those observations seem to me to be as applicable to the application before me as they were to the application then before that court. There is no person whose evidence in this case could be more significant, and there is no person whose cross-examination could be more significant than that of this defendant. For those reasons alone it seems to me that the proper answer is that this man should be called. But having regard to the importance of this matter to him, I have at the request of counsel read the statement. I am bound to say that it does not seem to me to put forward any explanation of the matters that have already been laid in evidence before me, and particularly of the documentary evidence in the bank accounts which I find even prima facie credible. In its present form, unsworn and without cross-examination, I find almost entirely valueless.

25. My conclusion as far as the defendant is concerned is therefore that his application is rejected on the basis that he is a person who should be called. I could, perhaps, have reached the same conclusion by a different route, having regard to my comments on the content of the statement, by saying, "yes, it is admitted, but I attach no weight to it". But I do not put it upon that basis because it seems to me in the circumstances of this case that the right and proper course is to say that the court is not prepared to receive this statement because the rules have not been complied with.

26. Now in respect of the father I put the same questions. The first question is: Is he beyond the seas? Answer: Yes. Second question: Can he give evidence on that account? Answer again I think: Yes. Now it is true that he is a witness and not a party, and different considerations therefore apply; but he is a very special witness, because by his statement he is himself claiming that the monies, which are the subject matter of the bank accounts which I have considered, belonged to him. But that is not decisive on the second question as far as he is concerned, because he also asserts that he is unfit to attend. I have already referred to the medical report which has been put before me. It is true that that medical report is not expressly directed to his ability to give evidence in a court of law and is put in general terms only. But I think that having regard to its contents I should give him the benefit of the doubt, and say that on the grounds of his physical and mental condition he is in fact unfit to attend. I therefore answer the second question in his favour, and that leads me to the conclusion that his statement is admissible.

27. I think it is right that I should go on to say that if I had come to the third question, Should he be called? or if I had thought I had a residual discretion, I would probably have come to the same conclusion in respect of him as I would have in respect to the defendant. I have already recited the history of the earlier attempts to place his evidence before the court. Likewise I have read his statement. Prima facie to me it carried very little conviction, and does not, as I see it, really condescend to deal with the detailed matters that have been put before me in the documents. I do not reach that question because I am satisfied that on the grounds of his disability he cannot attend. Therefore in his case my decision is that his statement is admissible, and I admit it.

Representation:

Mr. Peter Graham, Mr. Jimmy Sin, Mr. Dixon Tang, Corwn Counsel (Legal Department) for the Plaintiff.

Mr. Martin Lee, Q.C., Mr. Patrick Fung (M/s Oscar Lai & Ho) for Defendant.