Lai Man-yau v. The Queen
Read the full judgment text of CACC 16/1979 on BabelCite. This Court of Appeal judgment was delivered on 13 December 1979.
1. Counsel for the Appellant has conceded that there is no point he can properly argue upon the merits and he has confined himself to a technical objection to the trial. The Appellant was charged under s. 10(1)(b) of the Prevention of Bribery Ordinance, a section which appears in Part II of that O. By virtue of s. 31 the consent of the Attorney General was required for the institution of the prosecution and a form of consent was handed to the judge at the beginning of the trial. The contention i
Cited by 6 cases
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CACC000016/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 13 December 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. Counsel for the Appellant has conceded that there is no point he can properly argue upon the merits and he has confined himself to a technical objection to the trial. The Appellant was charged under s. 10(1)(b) of the Prevention of Bribery Ordinance, a section which appears in Part II of that O. By virtue of s. 31 the consent of the Attorney General was required for the institution of the prosecution and a form of consent was handed to the judge at the beginning of the trial. The contention is that the consent was, for several reasons, null and void and that the conviction is thereby invalidated. 2. The consent was in this form:
3. I shall deal first with the last point taken by counsel, namely that on the face of it this consent did not contain sufficient particulars. In effect it is said that a consent to prosecute must set out all the particulars which will be given in the indictment or charge. In the present case the charge alleged "pecuniary resources totalling $355,575.34 and property namely 1,200 shares in the Hong Kong Telephone Co. Ltd. and 10,000 shares in Realty Development Corp. Ltd.", which particulars had not been contained in the consent. Counsel relies principally upon Gokulchand Dwarkadas Morarka v Rex 1948 All India Rep. 82, where the sanction to prosecute merely authorized a prosecution of the appellant "for breach of the provisions of Clause 18(2) of the [Cotton Cloth and Yarn (Control) Order, 1943]". Sir John Beaumont, delivering the opinion of the Judicial Committee of the Privy Council, observed at p. 84 that the sanction did not "specify the acts of the appellant alleged to constitute such contravention" and held that
What, then, were the "facts consituting the offence charged" in the instant case? They were those set out in the consent. I do not think it was necessary, nor has it been submitted, that the charge had to particularize the official emoluments which would be alleged, nor do I think it was necessary to set out in minute detail the pecuniary resources and property relied upon. Even if one were to adopt the test applied in Reg. v Downey 1971 N.I.L.R. 224, it seems to me that the consent did "describe the offence ... charged with reasonable particularity": it indicated the name of the person to be prosecuted, the date of the offence and the provision of the Ordinance under which the charge was to be laid. The nature and extent of a person's pecuniary resources and property are usually best known to himself and in my judgment a charge containing no more than the particulars set out in the consent would be unobjectionable. That is not to say that the prosecution may not limit itself to specified items of property when the charge is laid, as was done here, but it is not bound so to do. Of course, it is desirable that the defendant should be made aware of the major items relied upon, otherwise he may have to seek an adjournment of the trial in order to establish that those items were in the custody or control of a third party. If the contention on behalf of the Appellant was sound, the inevitable result would be that every indictment or charge under s. 10 would have to be accompanied by schedules of pecuniary resources, property and emoluments. So far as I am aware no such suggestion has ever before been made and I am satisfied that it cannot be supported. In the circumstances it is not necessary for us to decide whether the form of consent approved in Reg. v Cain. 1975 3 W.L.R. 131 would have sufficed, although I see much force in the reasoning of the English Court of Appeal and especially in the emphasis placed upon the fact that there was no requirement that the consent should be expressed in writing, although I appreciate that s.32 of the Prevention of Bribery Ordinance expressly permits amendment of particulars at the trial. 4. The other objections to the consent involve a consideration of the circumstances in which the consent was given. First it is argued that the Attorney General was obliged to act fairly and that "fairness" in this instance necessarily required him to call for and to consider such explanation of the disproportion between assets and emoluments as the Appellant might wish to give. The fact is that the officers of the Independent Commission Against Corruption did tell the Appellant that he was suspected of an offence under s. 10 and invite him to comment on his financial affairs. He declined to do so. What seems to be suggested is that it was incumbent on the Attorney General to ensure that the Appellant had been informed in detail of the assets and emoluments it was proposed to prove, to ask him for his explanation and to consider any explanation given. Then, on the assumption that the Appellant was entitled to have his explanation considered, objection was taken to the fact that not until the charge was laid on 15th February 1978 was the Appellant aware whether the offence alleged against him was one under s. 10(1)(a) or one under s. 10(1)(b), so that even if he had been asked for an explanation he would not have known what precisely he was required to explain. 5. To deal with this last point first, reliance was placed on Board of Trustees of the Maradana Mosque v Badiuddin Mahmud 1967 1 A.C. 13 for the proposition that he should have been told under which paragraph he was alleged to have offended. In that case an allegation was made of a breach of one paragraph of a section and the minister made an order in reliance upon a breach of another paragraph also. The trustees had been given notice of a complaint in respect of the first paragraph but not of a complaint in respect of the other. In our case the Appellant was not told that he was alleged to have committed an offence under s. 10(1)(a) and then, without the consent of the Attorney General, charged under s. 10(1)(b) and the case cited is no authority for holding that it was insufficient to tell him simply that he was alleged to have committed an offence under s. 10 - subject, of course, to what I have said about particulars. Fairmount Investments Ltd. v Secretary of State for the Environment 1976 1 W.L.R. 1255 is similarly distinguishable. When considering the extent of the particulars which might possibly have been required, it would, any way, have been relevant that the decision of the Attorney General here did not finally decide the rights or responsibilities of the Appellant, as did the orders of the ministers in those cases. 6. We have heard an extensive argument as to the nature of the office of the Attorney General of Hong Kong and upon the question whether the courts have any power of control over the discharge of the functions of that office. It is not necessary to review all the powers of a colonial Attorney General or to decide whether there might be any circumstances in which the court would exercise control over him, but none of the authorities cited by Mr. Donnelly has persuaded me that, in so far as powers similar to those of Her Majesty's Attorney General in England may be applicable to the circumstances of Hong Kong, they are not exercisable by the Attorney General of this colony and in as full and ample a manner. Her Majesty the Queen is no less "interested with the prosecution of all crimes which disturb the peace and order of society" (Wilkes v Rex (1768) Wilm. 322, 326) here than she is in England and, if she chooses to act through an official appointed by warrant under the hand of the Governor rather than by Letters Patent under her own hand, that does not alter the powers of the persons so appointed: he equally exercises her prerogative powers in so far as they have been delegated, expressly or by necessary implication, in addition to any powers conferred by statute. An argument similar to that advanced on behalf of the Appellant before us was rejected by the Full Court in Bailey v Reg. (1955) 39 H.K.L.R. 75. The Attorney General has claimed to enjoy within the territorial limits of the colony substantially the same position as that enjoyed in England and Wales by the Attorney General in Her Majesty's Imperial Government and to be entirely free from the supervision of the courts. Mr. Donnelly has submitted that the Attorney General in a colony holds an office which is very different, that he exercises no prerogative powers delegated by the Crown and that he is subject to the supervision of the courts. Mr. Donnelly relies upon Chan Ching-cheung v Reg. 1977 H.K.L.R. 83 and the Attorney General asks us to overrule it. That was a case where the Independent Commission Against Corruption called for an explanation from a suspect and then proceeded to obtain the consent of the Attorney General to prosecute him before the time allowed for the giving of the explanation had expired. Taking the view that the requirement of the consent of the Attorney General was largely, if not solely, for the protection of the suspect from harassment, this court held that the consent given was invalid. We did not have the benefit of the full argument addressed to us in the present case. 7. I have no doubt that we have power to overrule the earlier decision, if we are persuaded that it was wrong and that the Appellant is wrongly imprisoned. It seems to me that this court ought to follow the practice of the Court of Appeal (Criminal Division) in England, which is summarised in 26 Halsbury (4th edition) 298 (578) as follows:
8. The Attorney General argues that, when considering whether or not to grant consent, his predecessor in office was not concerned solely with protecting Chan Ching-cheung from harassment by ensuring that there was a prima facie case against him (see 1948 All India Rep. 84 [9]). Indeed, he conceded that he was forced to go so far as to say that, in theory, consent might lawfully be given even if he was not satisfied that a prima facie facie case could be made out: for example, it might be desirable for political reasons that a person should be tried even though his acquittal was inevitable. I accept that the protection of the suspected person is not the sole factor to be considered and I further accept that as a general rule, where the consent of the Attorney General is a condition precedent to the institution of a criminal prosecution, his decision should not be subject to review by the courts, although he may be answerable elsewhere. Generally he has at least the same power as the Attorney General in England to decide what considerations are material to a decision relating to the public interest. If that be correct, then Hanks v Minister of Housing and Local Government 1963 1 Q.B. 999 does not assist the Appellant. What caused me some anxiety was whether, in relation to s. 10 of the Prevention of Bribery Ordinance, there was not an exception to the general rule and whether it was not intended that the protection of the subject should be the principal factor to be considered, so that, if any explanation by him was not considered, the courts could intervene. I do not overlook what Lord Salmon said in Pearlberg v Varty 1972 2 All E.R. 6, 20c:
but s. 10 creates a unique type of offence, the essence of which is a failure by the defendant to explain at the trial rather than the doing of an act before the proceedings are instituted. It therefore seems not only reasonable, but also vital in the interests of justice to the suspect, that, before he is charged with an offence, it should be ascertained whether he will be able to offer an obvious explanation. To this it is replied, first, that there may be cases where it is obvious that no satisfactory explanation could be forthcoming. There may, indeed, be cases where it could fairly be said that a satisfactory explanation was a remote possibility, but I doubt whether it could ever be said that it was impossible. Of more weight is the contention that, as in the present case, it may be apparent that the suspect is not willing to offer an explanation extra judicially. This Appellant was given at least two opportunities by the Independent Commission Against Corruption to tender an explanation of his financial affairs and he declined. If the Attorney General were to take the view that a formal invitation from him was a waste of time, it could not be said that he was acting unreasonably, but the conclusive argument against making an explanation in s. 10 cases is that the Legislature has repealed the former subsection (2), which required
The only purpose of this repeal can have been to enable the Attorney General to decide whether or not to grant his consent even though he has not considered any explanation which the suspect may wish to give. This amendment in the statute was not drawn to our attention in Chan Ching-cheung v Reg. That case is distinguishable from the present in that Chan Ching-cheung had been expressly invited to give an explanation and given time to do so. To that the Attorney General answers that there might be circumstances in which even after such an invitation had been given it would be proper to issue a consent before the time limited had expired and where no explanation had been received. If consideration of any explanation which the suspect may wish to give is not necessarily a factor to be taken into account that submission must be right. 9. It was argued that even in the unlikely case where it was manifest that an Attorney General had acted unfairly the court could not intervene. That may be right, it is not necessary to go so far in the present case and I wish to go no further than is necessary. If I have correctly stated the freedom of the Attorney General to consider such factors as he himself thinks material, it is difficult to envisage a case where unfairness would be manifest, though one has been suggested: see Commonwealth and Colonial Law by Sir Kenneth Roberts-Wray at p. 351. Should such a case ever arise I would not want to be inhibited by some incautious dictum here. 10. It was also the case for the Appellant that the Attorney General considered matters which were not relevant, namely the course of investigations which, it is said, were prohibited by s.18A of the Independent Commission Against Corruption Ordinance. What I have said already as to the right of the Attorney General to decide for himself which matters are relevant to his decision covers this argument also. Furthermore, I think the argument is based upon a misconception of s. 18A. The material part of the section provides:
Section 12 makes it the duty of the Commissioner to receive, consider and investigate complaints and to investigate alleged or suspected offences. Indirectly, perhaps, the result of the new section is to prevent prosecutions for some offences committed before 1st January 1977, but the section does not in truth grant an amnesty, as is commonly believed. It would not, for example, prevent the police or a private person from investigating offences suspected to have been committed before 1st January 1977 and (subject always to the consent of the Attorney General) from instituting proceedings in respect of any offences discovered. Even the Commissioner was not barred from investigating alleged or suspected offences in relation to persons or offences within the stated exceptions. Mr. Donnelly submits that exception (b) does not cover the Appellant in the present case, because, he says, although the Appellant was a person "who before 5th November 1977 had been interviewed by an officer" he was not a person "to whom allegations had been put that he had committed an offence". I cannot accept that. The Appellant was arrested on 25th May 1977 and was told that the arrest was on suspicion of committing an offence contrary to s. 10 of the Prevention of Bribery Ordinance. On the same day his safe deposit box at the Hong Nin Bank was opened in his presence, share certificates were seized and he was told that they were seized as possible evidence of an offence under s. 10. In my judgment it would be entirely unrealistic to hold that he was not then a person to whom allegations had been put that he had committed an offence. To tell someone that - and a fortiori to arrest him on the ground that - he is suspected of an offence is to put to him an allegation that he has committed that offence. The fact that s. 34 of another statute (the Prevention of Bribery Ordinance) distinguishes between "suspected" and "alleged" in a context where a clear distinction may exist is nothing to the point. 11. It is argued that s. 18A of the Independent Commission Against Corruption Ordinance, which came into force on 16th February 1978, had a retrospective effect, so as to render illegal everything done by the Commissioner under s. 12(a), (b) and (c) in relation to the Appellant after 5th November 1977. What in truth is being suggested is that the section should be deemed to have come into force on 5th November 1977. It did not come into force on that date and there is nothing in the section or elsewhere in the Ordinance - or in any other legislation - which supports the suggestion. The general rule was stated in Pardo v Bingham (1869) L.R. 4 Ch. 735, 739 as:
Since the date "5th November "1977" appears in two of the exceptions and not in the substantive part of the section, I do not see how one could properly construe the section so as to inhibit investigations between 5th November 1977 and 16th February 1978. 12. Repeated reference has been made to a speech made by His Excellency the Governor in November 1977 which was broadcast on television and a further statement made by him in the Legislative Council two days later. It seemed to be the case for the Appellant that these had either some kind of legislative effect in themselves or at least that s. 18A should be interpreted in the light of those speeches. It is notorious that His Excellency did make the speeches, but there is no evidence before us as to precisely what he said nor do I think such evidence would have been admissible: the meaning of the section must be ascertained from the words in it: the court should not misconstrue clear words so as to give effect to a policy inconsistent with those words, even where that policy has been publicly stated in a manner which leaves no room for doubt. The court is concerned with legal principles, whilst the Attorney General is in a better position than is the court to say what is the policy of Her Majesty's Government and how that policy can best be achieved. 13. However, all this discussion of the retrospective effect of legislation is really of no relevance. Even if, contrary to my belief, the statute could be given a retrospective construction so as to render the investigations of the Commissioner during December 1977 illegal, the Attorney General's consent could not be challenged in this court on the ground that he had considered evidence which had been unlawfully obtained. Whatever His Excellency may have said, when the Legislature enacted s. 18A it did not, as we have seen, grant an amnesty: it provided that a particular officer should not in future investigate offences committed before 1st January 1977 except in specified circumstances. Any argument based on the contention that the Independent Commission Against Corruption (Amendment) Ordinance was "an Ordinance of pardon" was therefore doomed to failure." 14. I would dismiss the application. 13th December 1979.
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 13 December 1979 ----------------- JUDGMENT ----------------- Cons, J.: 15. I agree with the comments of my Lord President and that in the circumstances of this particular case the appeal must be dismissed. But as the wider argument of the Attorney raises a matter of some constitutional importance I would like to add a few words of my own. As I understand the Attorney, he submits that his power to give or withhold consent under s. 31 of the Prevention of Bribery Ordinance is completely unfettered and subject to no control of any kind by the court. He relies initially upon the case of Ex parte Hurter(1) in the Divisional Court where Pollock, B. said, in relation to the consent necessary for a prosecution under the Newspaper Libel Act, 1811,
16. The grounds of the submission are said to be partly historical and partly practical. As a matter of history the Attorney has, since the earliest times, exercised the prerogative by which the Crown controls the criminal process. For example, a writ of error could issue only upon the fiat of the Attorney and if that were refused the court could not interfere: Ex parte Newton(2). Another example is the power of the Attorney to enter a nolle prosequi. In Reg. v. Comptroller-General of Patents, Designs, and Trade Marks(3) A.L. Smith, L.J. said that the Attorney General was "pre-eminent" in this respect and added that
It is suggested that the requirement of consent in cases such as the present is an integral part of the criminal process and in reality indistinguishable from the power to enter a nolle prosequi. 17. The practical ground rests upon the nature of the discretion. It is to be exercised in the public interest, which is a matter that the courts cannot properly judge. In Gouriet v Union of Post Office Workers(4) Lord Wilberforce put it this way:
18. Despite these powerful arguments I am not prepared to accept that the exercise or refusal of his discretion can never be called in question. I take the speeches of their Lordships in Padfield v Minister of Agriculture, Fisheries and Food(5) to be sufficient authority that the courts may, if the circumstances so warrant, enquire into the exercise of any executive discretion. They will not usurp that discretion, not even by indirect means. That I take to be the true effect of Gouriet's case. And I find nothing therein to contradict the basic principle of Padfield that the courts may look to see if the discretion has been properly exercised according to law. 19. What is or is not a lawful exercise may vary from one discretion to another. One fundamental is that the authority shall not have based its decision on some wholly extraneous consideration or failed to have regard to matters which ought to have been taken into account. I confess that I myself have not been able to envisage in vacuo any matter of this kind which might apply to the discretion with which we are now concerned. Lord Shawcross has suggested one:
I accept that apparent lack of good reason will not warrant intervention. But I would hesitate to hold - unless expressly so bound - that the courts would be completely powerless in the unlikely event that they were faced with cogent evidence of actual impropriety. 20. It was canvassed in argument that the court's powers are limited to discretions given by statute as opposed to those derived from the royal prerogative. For my part I do not think any distinction can be drawn. As Lord Denning pointed out in the Laker Airways Ltd. v Department of Trade(6) the prerogative itself is derived from the law. 21. The Attorney has asked us to say that the case of Reg. v Chan Ching-cheung(7), a decision to which I was party, was wrongly decided. On reconsideration I think that is so. Our decision in that case was based on the premise that the Attorney had, through no fault of his own, failed to consider an explanation given by the prospective defendant of the suggested disproportion in his pecuniary resources. It was conceded by counsel who appeared for the Crown that this was one of the relevant factors to be taken into account by the Attorney. I am satisfied now that that is not so, although it did use to be. Section 10(2) originally provided that the Attorney, before giving his consent, should inform the prospective defendant that prosecution was being considered and should give that defendant the opportunity to make written representation. That subsection was repealed in 1973 upon the recommendation of the Commission of Enquiry under Sir Alastair Blair-Kerr. In the light of that repeal, and the other authorities (Wiseman v Borneman(8) and Pearlberg v Varty(9)) to which we were referred, I find it impossible to say that the Attorney should, before giving his consent, have reference to anything that the defendant might wish to say by way of defence. 22. I would like to add one further comment. In Chan Ching-cheung we took the view that the lack of proper consent by the Attorney went to the jurisdiction of this court and rendered the conviction that had been recorded a nullity. We relied upon the case of Rex v Bates (10). This was a prosecution under the Explosive Substances Act, 1883. It was decided on the authority of Reg. v Fuidge (11), which turned on the Vexatious Indictments Act, 1859. Both are very short reports and the cases appear to have involved little argument. 23. With the very greatest respect to the Court of Appeal in England I am not sure now that it is a question of jurisdiction. Looking at the matter literally the section does not say that the court is not to entertain the prosecution. It says that no prosecution shall be instituted. To bring a prosecution without proper consent is therefore unlawful. But at the same time it must be remembered that to obtain evidence in certain ways may be unlawful and yet that evidence is not excluded in a subsequent prosecution, unless of course it relates to a confession. Looking at the matter practically the case of Chan is a good example of the absurdity that may result. The explanation which the defendant wished to give to the Attorney was eventually rejected by the judge. There can have been no question of an unwarranted prosecution. The matter was not argued before us and I therefore express no considered opinion. But it seems to me as at present advised that so far as the consent is intended to protect the prospective defendant, that protection could be achieved, and without offending against the words of the statute, if objection were limited to the time before plea was taken. (1) (1883) J.P. 724 (2) 4 E. & B. 869 (3) 1899 1 Q.B. 909 at 914 (4) 1977 3 All E.R. 70 at 84 (5) 1968 1 All E.R. 694 (6) 1977 2 All E.R. 182 at 192 (7) 1977 H.K.L.R. 83 (8) 1971 A.C. 297 (9) 1972 2 All E.R. 6 (10) 1911 1 K.B. 964 (11) 33 L.J. (M.C.) 74
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----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 13 December 1979 ----------------- JUDGMENT ----------------- Yang, J.: 24. I have had the advantage of reading the judgments of the learned President and my brother Cons. I too would dismiss the appeal, for the reasons given in the learned President's judgment. I also agree with my brother Cons' observations on the CHAN Ching-cheung Case(1). 25. I do not think anyone would quarrel with the general proposition of law that the courts cannot review the Attorney-General's exercise of his discretion. Where the Attorney-General refuses to disclose his reasons for the exercise of his discretion, it should not be inferred that he acted wrongly: per Viscount Dilhorne in Gouriet v. Union of Post Office Workers(2). Even if good legal reasons for his decision were not immediately apparent, the inference that he abused or misused his powers is not one that should be drawn: per Viscount Dilhorne in Gouriet. at p.91e. But this is far from saying that in no circumstances may the courts question the Attorney-General's exercise of discretion. 26. In these matters the Attorney-General alone is entitled to represent the public interest, and he must apply his mind to all the relevant facts and considerations in the exercise of his discretion: vide R. v. Cain(3). It seems to me at least arguable, on general principles, that when the only conclusion which may reasonably be drawn from the Attorney-General's conduct is, that he has failed to represent public interest or that he has applied his mind solely to irrelevant matters, then the courts would be entitled to intervene. Such cases must be extremely rare (if they happen at all), and the courts would require the most cogent evidence before they are prepared to intervene. Representation: Mr. J.D. Donnelly & Mr. P. Nguyen (Raymond Tang & Co.) for Appellant The Hon. J.C. Griffiths, Q.C., Attorney General and Mr. J. Duffy for Crown/Respondent (1) (1977) H.K.L.R. 83 (2) (1977) 3 All E.R. 70 at p.90c (3) (1975) 3 WLR 131, at p.135H |