Re United States District Court for The Eastern District of Virginia
Read the full judgment text of HCMP 1761/1987 on BabelCite. This High Court CFI judgment.
1. This is an application made by a Mr. Moreno & Companies he is connected with to set aside an Order made by Master O'Donnell for evidence to be taken pursuant to the provisions contained in Order 70 of the Rules of the Supreme Court. The original Applicant before the Master was the Crown Solicitor who had received letters Rogatory from the relevant authorities in the United States of America.
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HEADNOTE Letters rogatory. Evidence Ordinance. Ord. 70. S.G.R. Distinction between evidence required for trial purposes and what may be regarded as pre-trial discovery or a "fishing" expedition. Criteria to be adopted in determining this. Held Masters Order for evidence to be taken upheld subject to various items being excised.
IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS _____________
______________ Coram: Hon. Mayo, J. in Chambers Date of Hearing: 19th, 20th and 23rd November, 1987 Date of Delivery of Judgment: 30th November, 1987 __________ JUDGMENT __________ 1. This is an application made by a Mr. Moreno & Companies he is connected with to set aside an Order made by Master O'Donnell for evidence to be taken pursuant to the provisions contained in Order 70 of the Rules of the Supreme Court. The original Applicant before the Master was the Crown Solicitor who had received letters Rogatory from the relevant authorities in the United States of America. 2. The evidence required by the request related to a Grand Jury investigation which is presently being conducted. The subject matter of the investigation is wide ranging and appears to relate to alleged fraudulent and or improper conduct by Mr. Moreno and his associated companies in connection with payments which have been made by the United States Military Authorities to the Philippine Government Authorities. For the purposes of this judgment it is not necessary for me to go into a great deal of detail as to what the alleged offences involved. The grounds put forward for setting aside the Masters Orders were as follows:
3. Having considered carefully the submissions made by Mr. Bell on behalf of the Applicants, I have come to the conclusion that there is merit only in the 3rd ground. 4. The notes in the White Book on Order 70/1/6/6 at p. 1072 set out in some detail the vital distinction between evidence which is required for a trial and evidence which is required for pre-trial purposes. 5. Put another way what is not permissible under the legislation is for the Court to make an Order the effect of which would be to enable the requesting party to have discovery of documents. 6. Clearly it is of importance to ascertain how the request is framed. On the one hand if specific reference is made to a particular document it is likely that what is being requested is the use of the document for evidential purposes at the trial. On the other hand, if the request refers to unspecified classes of documents it is much more likely that what is being asked for is discovery. 7. Lord Frazer at p. 332 of re Asbestos Insurance Coverage cases(1) sets out in his speech in some detail the tests to be adopted in determining whether a request is for particular documents or amounts to a fishing expedition. In his speech he considered the criteria previously adopted by Lord Wilberforce and Lord Diplock in RCA v. Rauland(2). He says at p. 337 of the report:
Lord Diplock expressed perhaps an even more restrictive view of the effect of subsection (4)(b) where he said, at p. 635: I do not think that by the words "separately described" Lord Diplock intended to rule out a compendious description of several documents provided that the exact document in each case is clearly indicated. If I may borrow (and slightly amplify) the apt illustration given by Slade L.J. in the present case, an order for production of the respondents' "monthly bank statements for the year 1984 relating to his current account" with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession. But a general request for "all the respondent's bank statements for 1984" would in my view refer to a class of documents and would not be admissible. The second test of particular documents is that they must be actual documents, about which there is evidence which has satisfied the judge that they exists, or at least that they did exist, and that they are likely to be in the respondent's possession. Actual documents are to be contrasted with conjectural documents, which may or may not exist. In the Westinghouse case, I said, at p. 644: In my opinion the terms of paragraphs (b) and (g) of the letters rogatory in the present case fail both these tests. They fail the second test because there was no evidence that there was usually a single document or set of documents by which written instructions for policies from the plaintiffs or their agents were transmitted to Sedgwick. The only document to which our attention was called as being a specimen of such an instruction related to the renewal of a policy and it is certainly not a definite instruction. It is addressed to one of the firms now represented by Sedgwick and it includes the following paragraph:
8. I accept that this is a most useful commentary upon the requirements which have to be met. It is necessary to consider in some detail the extent to which the United States Authorities have been able to meet this criteria. For this purposes it is necessary in my view to extract the relevant part of the letters rogatory, so that it can be seen precisely what material is being requested by the United States Authorities. The relevant part of the letters rogatory reads:
9. Such documents should include the following for each account covering the period January 1982 through and including December 1985: Checking Accounts
Savings Accounts
10. The banks, account numbers, and certain referenced transactions include:
11. At first sight it would appear that the United States Authorities have cast their net far too wide to enable them to meet the criteria laid down by Lord Frazer. However, subject to observations I will be making, this is not necessarily the case if the request is scrutinized more carefully. 12. What in my view is most important is that the United States Authorities do indeed already have specific and detailed information concerning the transactions they are interested in. This can be seen from the information which is given when particulars of each of the Banks is forthcoming. In the Banks referred to in (a) to (e) particulars are given of amounts, parties concerned and the dates of the respective transaction and in some cases the reference codes relating to the transactions. 13. So far as the Bankers Trust Co. Hong Kong is concerned reference nos. of the time deposits and letters of credit indicated are given. 14. It will be noted that the request is for every considerable type of document in relation to each of the transactions concerned. Presumably the reason for this is that while the United States Authorities are likely to have an overall idea of the type of documents banks would have in their possession, it is not reasonable to expect that they will know in each case exactly what form the documentation will take. 15. I think adopting Lord Frazer's test, it is necessary to limit the Order which is made to ensure that it is only the documents of which the United States Authorities know about that are made the subject of the Order. 16. The question which then arises is the extent to which it is permissible for a judge to use a blue pencil and excise the documentation which goes beyond what can legitimately be ordered to be produced as evidence. 17. Lord Frazer dealt with this at p. 645 of Westinghouse. It is clear that the scope for using a blue pencil is limited and that each case will depend on its own facts. 18. I am satisfied in the present case that it is possible for me to be selective and that the amount of material to be deleted is relatively insignificant and does not go to the root of the request which is being made. 19. Before I consider the extent to which deletion should be made it is necessary for me to refer to another matter. 20. Mr. Strawbridge for the Crown Solicitor conceded that the 1st Bank referred to in the particulars did not have a Branch doing business in Hong Kong. Mr. Bell submitted that this cast doubts upon the accuracy of the evidence given by the United States Authorities. 21. While I accept that there is some validity in this contention I am satisfied that the information concerning the other accounts at other Banks is accurate. I am reinforced in this belief by the affidavit sworn by Mr. Moreno's solicitor, Mr. Midgley, who deposes to the fact that his client and his Associated companies do indeed hold accounts at the Banks in question. Clearly, however, the reference to the United Coconut Planters Bank Hong Kong must be excised. 22. Using as a base the quotation I have made from the letter of request I would order that the following further deletions must be made to enable the request to conform to the requirements laid down by Lord Frazer. I. In the definition of documents the following words will be excised:"Such documents should include the following for each account covering the period January 1982 through and including December 1985".In its place will be inserted the words:"Including the following documents".II. The only items I will allow under the heading "checking accounts" will beA. Signature cardsIII. Under the heading "savings account" the only items I would allow would be 23. I see no objection to the other matters referred to in the letters of request which have been adopted in the Masters Order. 24. I will now deal very shortly with the other matters complained of by Mr. Bell. He argued that the United States Authorities had failed to produce satisfactory evidence that the proceedings were likely to be instituted. This is one of the matters which has to be complied with under S. 77B of the Evidence Ordinance. Mr. Greenberg's affidavit makes it clear that if the necessary evidence is forthcoming, it is intended that criminal proceedings will go forward. I do not consider it relevant that this is dependant upon the Grand Jury reaching a determination to this effect. Mr. Greenberg is obviously the person who is in a position to make an assessment of the matter. Mr. Moreno and Mr. Ward's protestations to the contrary carry little weight or conviction. 25. Equally I attach very little weight to the submissions made to the effect that the proceedings are of a political character as prescribed by S. 77B. 26. I accept that the correct test to adopt is the one referred to by Lord Widgerry in Re Bruchhausen(4). It is necessary to have retard to the actual nature of the proceedings. It is evident upon reading the letter of request and supporting documents as a whole that the proceedings are not of a political character. 27. For the reasons I have given this application will be dismissed save that the deletions and modifications I have ordered will be adopted in Master O'Donnell's order. I will hear the parties on costs.
(1) [1985] 1 W.L.R. 331 (2) [1956] 1 Q.B. 618 (3) [1978] A.C. 547 (4) Unreported Crown office list 1753/85 Representation: Mr. A. Bell inst'd. by Haldane Midgley & Cheung for applicant. Mr. N. Strawbridge & Miss W.K. Che of Attorney General's Chambers for respondent. |