The Queen v. Alexander Lau

DCCC000298/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 298 OF 1981

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Coram: His Honour Judge Downey

Date: 25 March 1982

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RULING

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1. On the 16th March 1982, I gave a brief ruling on the admissibility of certain evidence, and indicated that I would expand it at a later date.

2. The accused was charged with attempting to pervert the course of public justice, and misconduct in a public office. To put the matter briefly, the Crown alleged that he, being a magistrate, falsely and materially altered his record of certain extradition proceedings, heard by him in June 1981, at a time when he knew that an application for Habeas Corpus was pending in the High Court. With a view to proving the accused's motives, intention, and state of mind generally at the time, the Crown sought to adduce evidence of certain oral and written communications between the accused and the Chief Justice and the Registrar of the Supreme Court concerning his future prospects as a member of the Judiciary. I heard submissions by Miss Yuen on behalf of the accused, by Mr. Marshall on behalf of the Crown, and Mr. Somerville, who appeared on behalf of the Chief Justice and the Registrar of the Supreme Court. I am extremely grateful to them for their very cogent, detailed and considered submissions.

3. Miss Yuen objected to this evidence being led on the ground that the communications are covered by what is sometimes referred to as "public interest privilege", and that such "privilege" could not, as a matter of law, be waived. Mr. Marshall contended that such public interest, if it existed, should give way to another competing public interest, namely the proper administration of justice - in this case, the prosecution of serious criminal offences. Mr. Somerville confined his submissions to the construction of certain provisions of the Judicial Service Commission Ordinance (Cap. 92), the Chief Justice having indicated that he did not wish to make any represen-tations on the public interest point.

4. The public interest which is said to exist in this case is in respect of confidential communications made by servants of the Crown to each other in connection with the discharge of their duties to the Crown. The justification for non-disclosure of such communications was expressed by Field, J. in Hennessy v. Wright (1888) 21 Q.B.D. 509, at 512 in the following terms:

"First, the publication of a state document may involve danger to the nation. If the confidential communications made by servants of the Crown to each other, by superiors to inferiors, or by inferiors to superiors, in the discharge of their duty to the Crown were liable to be made public in a court of justice at the instance of any suitor who thought proper to say 'fiat justitia ruat caelum,' an order for discovery might involve the country in a war. Secondly, the publication of a state document may be injurious to servants of the Crown as individuals. There would be an end of all freedom in their official communications, if they knew that any suitor, that, as in this case, any one of their own body whom circumstances had made a suitor, could legally insist that any official communication, of no matter how secret a character, should be produced openly in a court of justice."

It may be that there is no great enthusiasm for the second justification (see Cross on Evidence (5th ed: 1979) at 305), but all the more recent authorities appear to me to recognise that communications between public officers are covered by this public interest if the withholding of such information is really necessary for the proper functioning of the public service. As Lord Reid said in Conway v. Rimmer [1968] A.C. 910 at 952:

In Rogers v. Rome Secretary [1973] A.C. 388 at 401 he added that "the public service" should not be construed narrowly.

5. The danger involved in disclosing such communications must vary according to the nature of the communication, the circumstances in which it came into existence, and the purpose behind the communi-cation. In this case, any possible danger clearly falls short of that referred to in Hennessy v. Wright,  supra - involving the country in a war! But, I think that there can be no doubt that the communications in question are within that class or category of documents or information which it may not be in the public interest to disclose. Whether they deal with policy or particular cases they are or may be within the protection referred to in the passage I have quoted from Conway v. Rimmer, supra.

6. Equally, I think that there is, in this case, another public interest in the sense that it is important to the proper administration of justice that, whenever possible, all relevant material should be placed before a court. That public interest in the proper administration of justice applies, in my view, to civil and criminal proceedings; and, in relation to the latter, it applies, in my view, irrespective of whether the evidence is sought to be adduced for the benefit of the prosecution or the defence.

7. Whenever there are competing public interests - one requiring the production of certain material; the other requiring it to be withheld - the modern authorities indicate that the court must balance the competing public interests and, when doing so, it may look at and consider the material in question. Notwithstanding the dictum of Lord Denning, W.R. in Burmah Oil Co. Ltd. v. Bank of England [1979] 1 W.L.R. 473 at 486, I make no apology for again referring to Lord Reid's speech in Conway v. Rimmer, supra, at 940:

"        It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the "public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the state in jeopardy. But there are many other cases where the possi-ble injury to the public service is much less and there one would think that it would be proper to balance the public interests involved. I do not believe that Lord Simon really meant that the smallest probability of injury to the public service must always outweigh the gravest frustration of the administration of justice."

Accordingly, it seems to me that the first question to be asked is whether the possible injury to the public service likely to be caused by permitting disclosure of the material, or any part thereof, is so grave that no other interest, public or private should be allowed to prevail over it. If it is so grave, the material should not be disclosed, however relevant and material it may be to the issues in the proceedings. In this case, I cannot go so far as to say that the likely injury would be of so grave a character that it should not, in any circumstances, be disclosed.

8. That being the case, I must balance the competing public interests. Miss Yuen submitted that, in doing so, it would not be right to permit the public interest in the proper administration. of justice to outweigh the other public interest, in order to enable the prosecution to adduce such evidence against an accused-person. She referred me to several authorities support-ing the proposition that the public interest favouring non-disclosure of relevant material must give way if the material is necessary to enable an accused person to establish his innocence or resist a charge made by the Crown. The last of these cases dealt with legal professional privilege, but the principle enunciated must, in my view, also apply to the so-called public interest privilege. In Barton [1972] 2 All E.R. 1192, Caulfield J. said (at 1194):

"I  think the correct principle is this, and I think that it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me; I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed. "

This case, and earlier cases where otherwise protected material has been made available to the defence, are, in my view, based on the principle that it is not in the public interest that an accused person should be put in danger of losing his life or liberty through the withholding of evidence which might establish his innocence. It is certainly true that our system of criminal justice leans heavily in favour of an accused person and against the prosecution in many instances. It also appears that there is no decided case where the public interest against disclosure of confidential or sensitive material has been "waived" in favour of the prosecution. To that extent, the point before me is novel. (I am not persuaded that the case of Prager (1972) 56 Cr. App. Rep. 151 is such an instance, although it may be so as the court heard some evidence in camera. The report does not however elaborate on the nature of that evidence.). But, in my view, the public interest in not wishing to see an innocent man convicted of a criminal offence is merely a part of the broader principle that it is in the public interest that, for the proper administration of justice, it is desirable that all relevant material should be placed before a court. It is the public interest which is involved, and not merely the benefit or interest of one of the parties to the proceedings. In a criminal trial, it may be necessary to take into account other interests or considerations, but, in principle, I do not see why the principle should not be applied for the benefit of the prosecution in an appropriate case. The public has a very clear interest in guilty persons being prosecuted and, if the evidence justifies it, convicted.

9. Having considered the authorities, and confining my remarks to this particular case, I am of the view that the undoubted public interest in the prosecution of criminal offences is not so great that the other public interest should yield to it. I do so for these reasons. Having posed for myself questions similar to those asked by the House of Lords in Conway v. Simmer, supra (at 996-7), I an unable to say that I can find nothing in the proposed evidence the disclosure of which would be in any way prejudicial to the proper administration of the judicial service in Hong Kong or to the general public interest. But my main reason for upholding Miss Yuen's objection is that the evidence in question, though clearly relevant, is only of marginal and somewhat remote significance to the issues in this case. (cf. Burmah Oil Co. Ltd. v. Bank of England [1979] 1 W.L.R. 473 at 492-3, 496.)

10. It seems to me that on the evidence which has already been adduced, and, perhaps, other evidence yet to be adduced, there is material on which I can, if I think it proper to do so, draw inferences as to the state of mind of the accused at the time of the alleged offences, or the kind of factors which did or may have motivated him at the relevant time. For that reason I do not think that this is a case where the public interest in the proper administration of justice would be prejudiced or frustrated, or that it outweighs the public interest in preserving the confidentiality attaching to communications between one public officer and others. It is not a case where upholding that public interest, would leave the prosecution wholly unable to present any evidence on a vital issue.

11. In coming to my decision, I relied only on the principles governing the so-called public interest "privilege". I did not rely on any of the provisions of the Judicial Service Commission Ordinance, in particular, section 11, which makes it an offence for any member or other person to disclose information which has come to his knowledge in the course of his duties under or in connexion with that Ordinance. I am satisfied not only that the material in question did not come to the knowledge of the Chief Justice in the course of his duties as ex-officio chairman of the commission, but also that disclosure to the court, if otherwise permissible, would not be to any unauthorised person. The only significance of this Ordinance, in my view, is that its provisions regarding non-disclosure of information tend to fortify the well established view that it is generally not in the public interest that confidential communications between public officers, on matters concerning the proper administration of the public service, should be disclosed.