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HCMP000449/1981
| IN THE HIGH COURT |
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1981 No. 449 |
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(Miscellaneous Proceedings) |
| BETWEEN |
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MOY CHUNG MAN, JOHN |
Plaintiff |
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and |
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ATTORNEY GENERAL |
Defendant |
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Coram: Mr. Commissioner Gittins, Q.C., in Chambers.
Date of Judgment: 14 August 1981
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JUDGMENT
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1. The Plaintiff and his wife desire to emigrate to the U.S.A. The Plaintiff's sister, a citizen of the U.S.A. filed an application with the U.S.A. authorities for permission for the Plaintiff and his wife to emigrate. On 19th January 1981, in connection with this application, the Plaintiff requested a Certificate for No Criminal Conviction from Police Headquarters, Hong Kong. He gave the police a set of his fingerprints and paid $180 for which he was given a receipt which was as follows :-
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Royal Hong Kong Police Force |
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FEE FOR CERTIFICATE OF NO CRIMINAL CONVICTION |
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Name of Person requesting security check and issue of a Certificate of No Criminal Record : |
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Mr. MOY CHUNG MAN, JOHN |
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Fee Paid $180 |
Sd. (illegible) |
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Date 19.1.81. |
For Commissioner of Police" |
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2. In due course the Plaintiff received a letter dated 27th January 1981 which stated :-
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Dear Sir, |
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CERTIFICATE OF NO CRIMINAL CONVICTION |
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I regret that I am unable to issue a Certificate in your case but, should you wish, I am prepared to write to the Consul concerned as follows :- |
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On 18th day of April, 1974, MOY Chung-man appeared at San Po Kong Court charged with Possession of Dangerous Drugs, and that the Court made the following order in respect of this charge on probation for 18 months No Conviction Recorded (Case No. SPK8859). Although MOY Chung-man pleaded/ was found guilty of the offence, I wish to inform you of the circumstances in which a Court will discharge an offender without recording a conviction and the effect of an order that no conviction be recorded. Even though a charge is proved, if the Magistrate - "is of the opinion that having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than nominal punishment, the Magistrate, with or without recording a conviction, may .......... discharge him absolutely. He may alternatively discharge him conditionally on his entering into a recognizance to be of good behaviour for a specified period and to appear for conviction and/or sentence if called on during that period." (Magistrates Ordinance, CAP 227, Section 36). |
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The effect on an order 'no conviction recorded' is that in subsequent court proceedings the matter may not be referred to as a 'conviction'. As a matter of practice however the Police maintain a record of such court orders since in some circumstances they are needed. |
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No Magistrate will make such an order unless either the offence was so trivial or one of the other circumstances specified by Section 36 applied so as to render it unfair to brand the defendant, in relation to the particular offence, as having a criminal conviction.' |
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Should you wish me to address the Consul concerned in these terms please advise accordingly. |
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Yours faithfully, |
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Sd. B. Ferguson for Commissioner of Police |
| To Mr. MOY Chung-man |
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3. The Plaintiff considered that this letter would be prejudicial to his immigration chances in that it disclosed his 1974 offence in connection with Dangerous Drugs.
4. His wife's request for the same Certificate resulted in a letter which read as follows :-
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Dear Sir/Madam, |
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Certificate of No Criminal Conviction |
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I refer to your request for a Certificate to the effect that you have no criminal conviction in Hong Kong. |
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Please be advised that no criminal conviction recorded against you have been traced in Hong Kong. |
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Yours faithfully, |
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Sd. LUI Yim-ching for Commissioner of Police |
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Mrs. Moy Waterprasertwong Lawan, |
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1008, Argyle Street, |
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4/F., |
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Kowloon. |
5. The Plaintiff thereupon instituted the present proceedings seeking Declarations as follows :-
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(1) |
A declaration that the Plaintiff has no criminal conviction in Hong Kong. |
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(2) |
Further, a declaration that the Defendant (through the Commissioner of Police) on request by the Plaintiff for a certificate of no criminal conviction (and on payment of the requisite amount) is bound to so certify and in the usual form. |
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(3) |
Further or alternatively a declaration that the Defendant (the Commissioner of Police) should not qualify any such document by referring to the details of a charge upon which a magistrate once exercised his discretion under Section 36 of the Magistrates Ordinance, Cap. 227 not to record a conviction or that the Plaintiff was at the same time put on probation. |
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(4) |
Further and in the alternative, a declaration that it is unlawful for the Defendant (Commissioner of Police) to keep a record of the fingerprints of the Plaintiff in that it is contrary to section 59 of chapter 232, Laws of Hong Kong. |
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(5) |
A declaration that no official record should now be kept by the Defendant (Commissioner of Police) of Case No. SPK8859 of 1974. |
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6. An affidavit was filed by Bruce Ferguson, a Senior Superintendent of Police who is in charge of the Identification Bureau, Police Headquarters. He was responsible for the issue of "certificates of no criminal conviction" to persons who have applied to foreign governments for issue of visas. The affidavit stated that:-
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An applicant in such circumstances is advised by the government concerned that, in order that his application may be processed, he should furnish a letter or certificate to the effect that he has no criminal convictions in Hong Kong. The applicant is then issued with documentary proof by the consulate concerned that a visa application has been made and this he submits to the Identification Bureau. If the applicant's documents are in order he is required to pay a processing fee of $270. On payment a receipt is issued and the applicant is fingerprinted and full particulars obtained. .......... The applicant is then advised that the result of his application to establish whether or not he is a convicted person will be forwarded to him within 14 days by registered post." |
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Fingerprints and personal particulars are then checked against records held by the Royal Hong Kong Police Force. Depending on the result of this check one out of three letters will be issued to the applicant :- |
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(a) |
no previous criminal record known in Hong Kong as in the letter to the Plaintiff's wife; |
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previous convictions have been traced and no certificate can be issued; or |
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that the person was found guilty but that the Court made an order to the effect that no conviction be recorded as in the letter dated 27th January 1981 to the Plaintiff. |
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The last aforesaid letter has been issued to applicants since the month of April 1980 having been drafted upon advice received from the Attorney General's Chambers." |
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This procedure is provided exclusively for applicants for visas to visit or reside in a foreign country. It is provided as a public service to assist both individuals and foreign governments in their immigration procedures and, as such, the Royal Hong Kong Police Force consider it their duty to provide truthful and factual inforamtion. The aforesaid procedure is not subject to statute and is operated at the discretion of the Royal Hong Kong Police Force. The fee payable is a charge to cover the costs of providing this service." |
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7. The deponent exhibited 2 forms obtained from the U.S.A. Consulate.
8. The first is an application form for a non-immigrant visa. Question 42(2) states that a visa may not be issued inter alia "to persons who have been arrested/convicted for any offence or crime even though they may have been the subject of a pardon, amnesty or other such legal action; narcotic addicts ....." and requires the applicant to answer "yes" or "no" to the question whether any of the foregoing restrictions apply to him, and goes on to say : "If YES, .... personal appearance at this office is recommended. If it is not possible at this time, attach a statement of facts in your case to this application."
9. The second form is an application for immigration visa. Questions to be answered by the applicant include :-
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32. |
Have you ever been treated .... for drug addiction? |
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(If answer is Yes, explain) |
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33. |
Have you ever been arrested, convicted or confined in a prison? |
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(If answer is Yes, explain) |
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34.
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Have you ever been the beneficiary of a pardon, amnesty, rehabilitation decree, other act of clemency or similar action? |
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(If answer is Yes, explain) |
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40. |
Except as otherwise provided by law, aliens within any of the following classes are ineligible to receive an immigrant visa: |
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(b) |
Aliens who have been convicted for violating certain laws or regulations relating to narcotic drugs .... |
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Do any of the foregoing classes apply to you? If the answer is Yes, explain."
10. S.36(1) of the Magistrates Ordinance, Cap. 227 provides:-
"Where any person is charged before a magistrate with an offence punishable on summary conviction, and the magistrate thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, the magistrate, with or without recording a conviction, may make an order either -
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discharging the offender absolutely; or |
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discharging the offender conditionally ....." |
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11. A similar provision appears in the following ordinances:-
12. Probation of Offenders Ordinance, Cap. 298 -
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3. (1) Where a court by or before which a person is tried for an offence (not being an offence the sentence for which is fixed by law) is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, with or without proceeding to conviction, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer ......." |
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8. (1) Subject as hereinafter provided, a conviction of an offence for which a probation order or an order for conditional discharge is made shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Ordinance:" |
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13. Drug Addiction Treatment Centres Ordinance, Cap. 244-
"4. (4) When a court makes a detention order, no conviction shall be recorded against the person in respect of whom the order is made unless, in the opinion of the court, the circumstances of the offence so warrant and the court orders accordingly."
14. Mr. Bernacchi for the Plaintiff cited Reg. v. LI Hok-ming(1). This was a case where the appellant was conditionally discharged under S.36(1)(b) of the Magistrates Ordinance and asked for the conviction not to be recorded. The magistrate refused, taking the view that no purpose would be served by not recording a conviction. This was an appeal against sentence in so far as the magistrate refused not to record the conviction.
15. In his judgment, Huggins, J.A., considered the sections in the Ordinances above referred to and stated:
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Comparison of these provisions shows that in some circumstances it is possible that a person who has been found guilty shall not be convicted. It is wrong in my view to assume that a verdict of guilt is necessarily a conviction." (at 132) |
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...... I think a verdict of Guilty is not a conviction for the purposes of the Probation of Offenders Ordinance ....... I think it is reasonable to interpret 'conviction' as meaning something different from 'verdict of Guilty', but be that as it may, there is authority for the view that until recorded there is no conviction .... under our Probation of Offenders Ordinance." (at 134) |
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That seems to me to indicate that there is no substantial difference for present purposes between an order discharging 'without recording a conviction' and making an order of probation 'without proceeding to conviction'. |
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If there is no conviction the court's determination should not in my judgment be referred to as a conviction either in those proceedings or in any subsequent proceedings. The courts cannot dictate to the Commissioner of Police what records he shall keep, but they can properly direct that a determination which is not a conviction shall not be referred to as a conviction in the courts of this Colony. Outside the courts the Commissioner may keep such records as he thinks fit and use them for such purposes as he may be advised. What really is the purpose of ordering that no conviction be recorded? I hope I have not done the learned magistrate an injustice when I say he appears to think that the words 'with or without recording a conviction' serve no useful purpose. It must be presumed, where possible, that the Legislature does not legislate to no purpose. In my judgment the purpose is clear. Where a breach of the criminal law is de minimis or there are reasons peculiar to the defendant which make punishment inexpedient, the court may discharge the defendant and order that he be treated as if he had never offended at all. It is a power which should be exercised sparingly but which can be used in a proper case." (at 134) |
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I think it was clearly the intention of the Legislature that neither the conviction nor the fact that a previous offence had been committed should ordinarily be referred to. I advisedly use the word 'ordinarily' because I have already cited cases where the fact that an offence had been committed on a previous occasion was an element in the commission of another offence, i.e. where somebody committed an offence 'having committed the same offence on a previous occasion'. In such a case it is of course proper for the prosecution to prove that a previous offence has been committed. It cannot be done by the production of a certificate of conviction: it will have to be proved aliunde." (at 135) |
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16. Mr. Bernacchi submitted that when the magistrate ordered that no conviction be recorded against the Plaintiff in 1974 the effect of the order was that the Plaintiff had no conviction for any purpose whatever. None of the authorities go that far. Huggins, J.A., in Reg. v. LI Hok-ming(1) limited his judgment to-
"... a determination which is not a conviction shall not be referred to as a conviction in the Courts of this Colony."
and
"I think it was clearly the intention of the Legislature that neither the conviction nor the fact that a previous offence had been committed should ordinarily be referred to."
17. The reference to the Plaintiff's previous offence in the letter dated 27th January 1981 from the Commissioner of Police to the Plaintiff clearly was not a reference in the courts of this Colony. Further I consider it was not "ordinarily" referred to in the circumstances. If the Commissioner had issued a Certificate of no criminal conviction in the usual form, intended for production to the U.S. Consulate, I consider he would be guilty of suppressing the whole truth and therefore would not have exercised his discretion fairly and properly.
18. I hold that the Plaintiff fails in his claims for Declarations (2) and (3).
19. As to Declaration (1), "that the Plaintiff has no criminal conviction in Hong Kong", taking into account that its use if ordered, would include use in connection with the Plaintiff's application for an immigration visa, i.e. not in the courts of this Colony; therefore it would be wrong for the Declaration to be ordered. I hold that the Plaintiff fails also in his claim for Declaration (1).
ESTOPPEL
20. Mr. Bernacchi also submitted that the Commissioner of Police in this case was estopped from saying that the Plaintiff is not entitled to a clean Certificate of No Criminal Conviction. Mr. Bernacchi submitted that the Commissioner represented to the public at large that if a person provided a good reason for requiring such certificate, had no conviction, and paid the appropriate fee, that person would be provided with the certificate. That the Plaintiff had relied on the representation, had a valid reason, paid the fee, submitted to having his fingerprints taken and acted to his detriment by going ahead through solicitors with his application.
21. In connection with the provision of certificates of no criminal conviction, Bruce Ferguson in paragraph 4 of his affidavit states :-
"This procedure is provided exclusively for applicants for visas to visit or reside in a foreign country. It is provided as a public service to assist both individuals and foreign governments in their immigration procedures and, as such, the Royal Hong Kong Police Force consider it their duty to provide truthful and factual information. The aforesaid procedure is not subject to statute and is operated at the discretion of the Royal Hong Kong Police Force. The fee payable is a charge to cover the costs of providing this service."
22. The taking of the Plaintiff's fingerprints and his payment of the fee was a necessary prerequisite to the Commissioner initiating the inquiry. The Commissioner's obligations consisted of making the inquiry and then to exercise his discretion fairly on the result of the inquiry in deciding whether or not to issue a clean certificate. I consider that he has done this. I have already held that in this case there was no obligation on the Commissioner to provide a "clean" certificate, and that it would be wrong to do so.
23. Therefore I hold that the Commissioner is not estopped as contended.
DECLARATIONS
24. The principles applicable to the Court making declaratory judgments include -
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The power of the Court to do so is a discretionary power (1979 The Supreme Court Annual Practice 221, 15/16/2); |
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The Court will not generally decide academical or hypothetical questions (ibid 222); |
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Where specific relief, other than a declaration, is not claimed, the jurisdiction to make a declaration should be exercised with great caution (ibid 222, 15/16/2A); |
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The power to make declarations is confined to making declarations that are justiceable in the courts (Megarry, V.C., in Malone v. Commissioner of Police (No.2), (1979) 2 A.E.R. 620 at 627-f and 628-e), cited with approval by McMullin, J.A., in the Hong Kong Court of Appeal in Jackson v. Attorney General(2). |
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25. I have already held that the Plaintiff has no claim of right on Declarations (1), (2) and (3).
26. Further, on applying the principles applicable to the making of declarations, I hold that none of the 5 Declarations claimed involve issues which are justiceable and that I have no jurisdiction to make any of them. Even if I had jurisdiction, in my discretion I would refuse to make any of them. In the exercise of my discretion I have taken into consideration the questions which the Plaintiff has to answer in the application form for an immigration visa. Truthful answers to these questions would reveal facts similar to those disclosed in the letter to him dated 27th January 1981 from the Commissioner of Police.
27. The claims in the Summons are dismissed with costs.
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(S. V. Gittins) |
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Commissioner of the High Court |
Representation:
Mr. B. Bernacchi, Q.C., and Mr. Sammy Li (Francis Chaine & Co.) for Plaintiff
Mr. C.N. Ingham, s.c.c. and Miss Janet Lewis, c.c. for Defendant
(1) (1978) H.K.L.R. 131
(2) (1980) H.K.L.R. 323 at 329
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