Lui Lok v. The Commissioner of the Independent Commission Against Corruption and Another
Read the full judgment text of HCMP 317/1980 on BabelCite. This High Court CFI judgment.
1. The appellant in this matter, the applicant LUI Lok by his originating summons seeks a number of reliefs against the Commissioner of the Independent Commission Against Corruption and the Attorney General in respect of a series of notices which have been issued by the Commissioner under Section 14A of the Prevention of Bribery Ordinance and the only matter which has been argued before me on the hearing today is as to the effect of Section 14A and in particular Section 14A(3) of the Ordinance.
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HCMP000317/1980
Coram: Barker, J. Date of Judgment: 22nd December, 1980. ----------------- JUDGMENT ----------------- 1. The appellant in this matter, the applicant LUI Lok by his originating summons seeks a number of reliefs against the Commissioner of the Independent Commission Against Corruption and the Attorney General in respect of a series of notices which have been issued by the Commissioner under Section 14A of the Prevention of Bribery Ordinance and the only matter which has been argued before me on the hearing today is as to the effect of Section 14A and in particular Section 14A(3) of the Ordinance. What has happened in this case is as follows. 2. On the 21st June of 1976 a notice under Section 14A(1) was issued. The plaintiff was not then and is not now within the jurisdiction of the Court. Application was made to the District Court as to service of the notice and in fact that notice was served an a son of the applicant. Thereafter four further notices were served in June of each succeeding year, the last notice being served or being issued by the Commissioner on the 16th June 1980. It is the case for the applicant that all the notices served after the notice of June 1977 were served without jurisdiction and indeed are therefore of no effect. It is therefore important to look at the terms of 14A of the Ordinance. 14A(1) reads:
Subsection (2) originally read:
and as amended in 1976 by Section 2(b)
and then subsection (3) said:
3. What is argued by Mr. Martin Lee who appeared on behalf of the applicant is that the plain meaning of subsection (3) when the words "a further order" are used is that that means one further order and only one. It is important before I go further to draw attention to the Interpretation and General Clauses Ordinance, Chapter 1, Section 7(2) of which reads:
and Mr. Martin Lee concedes that if that subsection applies to this case he must fail in his submissions. But he points to Section 2(1) which reads:
and what Mr. Martin Lee submits is that if one views the Prevention of Crime Ordinance and in particular the relevant sections thereof, a contrary intention does appear. One returns therefore to the Prevention of Bribery Ordinance. One sees that Section 14A as amended deals with notices served on the person who is the subject of investigation or the person against whom a prosecution has been instituted, in respect of property which he has. Section 14C deals with an application being made in respect of property which it is alleged has been disposed of by the suspected person or the person charged with an offence to a third party and the scheme and the language of 14C is different from the scheme and language of 14A. In the latter, "14A the Commissioner does not have to have recourse to the courts" whereas in 14C what I will call "third party property", the Commissioner has to apply ex parte and if the court is satisfied then the court makes an order which is known as a restraining order and Section 14C(4) originally said:
That has been amended, in 1980, the last part of it to read:
and it is relevant to read subsection (5) of 14C:
4. Finally one turns to Section 17A which deals with the surrender of travel documents and that is a case where once again the person has to be taken before the court by or on behalf of the Commissioner. In this case it happens to be the magistrate and again the language used in that section is very different from the language used in Section 14A; again referring as it does to further detention under the control of the court. Mr. Martin Lee's first submission is that one should construe a statue as a whole; with that proposition of law I agree. And he said that if one looks at Section 14A, 14C and 17A the Legislature has set down as it were a code of time limits. In respect of 14A, 12 months plus a further order of 12 months making 24 months in all. In respect of Section 14C, 6 months plus originally a further period of 3 months making 9 months in all though now 3 months' period of 3 months at a time, meaning that so far as a restraining order under Section 14C is concerned, it could go on for ever. And in respect of the surrender of travel documents which the magistrate orders under Section 17A the time limit is 6 months plus 3 more months making 9 months in all and said Mr. Martin Lee that code in itself is sufficient to manifest a contrary intention such as to exclude the application of Section 7(2) of Chapter 1. Again Mr. Martin Lee points out that by the 1980 amendment there was a change in the language of Section 14C(4) and there was also a change in the language of Section 17A(6) and said Mr. Martin Lee, this change was deliberate on the part of the Legislature because it was thought necessary to enlarge the time limit for a restraining order and for keeping by the court of travel documents and he said it was quite deliberate on the part of the Legislature that they did not touch the other provisions as the time in Section 14A(3). He said if it be contended that Section 14A intends to freeze the property of a subject whilst investigation was still going on or until the prosecution against him was completed, it is odd that the Legislature has not used much clearer language than it has because it is a principle of the construction of statute that the Legislature must be presumed to have expressed itself in a statute in the clearest possible terms. It is argued if it had wanted to express it in clearer terms the Government could have clearest so by saying in 14A(2)(b) for the words that appear there now the following words:
That said Mr. Martin Lee would have made it clear beyond a peradventure and the very fact that the Legislature did not adopt some kind of words like that that shows that it cannot have been the intention of the Legislature that more than one further notice should have been served. And in support to those arguments Mr. Martin Lee cited a number of excerpts from Maxwell on the interpretation of statutes and from Craies Statute Law which I need not go into at this stage. 5. I agree with Mr. Martin Lee that one must look at the whole of a statute in order to consider the interpretation of any particular part of it and in order to ascertain so far as one can the intention of the Legislature. Sometimes it happens that the intention of the Legislature can be gleaned from the preamble. No such assistance can be obtained from the preamble to the Prevention of Bribery Ordinance which merely reads "to make further and better provision for the prevention of bribery and for purposes necessary thereto or connected there with". But in my judgment viewing the Ordinance as a whole the intention of the Legislature was first to prevent bribery and corruption if possible, possibly by deterrence, secondly to detect it by investigation and to insure that the people who indulged in bribery and corruption were caught, convicted and punished, and thirdly that a person who indulged in bribery and corruption should not be allowed to keep for himself the proceeds of his ill-gotten gains. That being so I for my part cannot see looking at Section 14A, 14C and 17A that one can glean from those an intention to oust the working of Section 7(2) of Cap. 1. In my judgment if one did not have Section 7(2) of Cap. 1, the words in Section 14A(3) of the Prevention of Bribery Ordinance would in themselves be apt to cover a situation where the Commissioner wished to serve a second or subsequent notice after the first additional notice. It says "nothing shall prevent the Commissioner from serving a further notice" and in my judgment it is a matter of common sense and proper interpretation of the statute that would allow the Commissioner to serve yet further notices. But also if I be wrong of that, in my judgment there is nothing in the Prevention of Bribery Ordinance which shows a contrary intention so as to exclude the operation of the words of Section 7(2) of Cap. 1. 6. In the result therefore in my judgment the defendants have power to serve any number of further notices under Section 14A of the Ordinance. I cannot accede to the submission that all the notices served subsequent to the notice of 17th June 1977 were of no effect and therefore on this point which as I said has been the only point argued in front of of me I cannot accede to Mr. Martin Lee's submission. Therefore I do not make a declaration the declaration sought in paragraph 3 of the originating summons. Defendants' costs against the plaintiff. Representation: Martin Lee, Q.C. & Philip Lee (Deacons) for Plaintiff S.P. Graham & M. Sinclaire for 1st and 2nd Defendants |