Ch'Ng Poh v. The Commissioner of the Independent Commission Against Corruption

IN THE COURT OF APPEAL

1996, No. 152
(Civil)

Headnote

Section 10B Independent Commission Against Corruption Ordinance, Cap 204 - Jurisdiction of magistrates to issue search warrants on sworn information given by the ICAC - Jurisdiction of ICAC to investigate a common-law offence like perverting the course of justice arises only if such offence is disclosed in the course of an investigation by the ICAC of a suspected bribery offence - Magistrates' jurisdiction to issue search warrants likewise so limited - Accordingly, if on a plain reading of the sworn information, there is no reason to believe that in the premises named in the warrant there are documents containing evidence of the commission of a bribery offence, no warrant can be lawfully issued on an ICAC investigator's application.

Held (by a majority, Court of Appeal): The judge was right in judicial review proceedings to have quashed the warrant.

IN THE COURT OF APPEAL

1996, No. 152
(Civil)

BETWEEN

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Coram: Hon Yang CJ, Litton V-P and Liu JA in Court

Date of hearing: 16 August 1996

Date of delivery of judgment: 21 August 1996

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JUDGMENT

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Litton V-P:

Introduction

1. On 21 May 1996 Mr Gerald Roger Osborn, a Principal Investigator with the Independent Commission Against Corruption (ICAC), attended before Mr A.R. Wright, a magistrate, at the Eastern Magistracy and applied for the issue of a search warrant under Section 10B of the Independent Commission Against Corruption Ordinance, Cap 204. Section 10B reads:-

"10B. Search warrants

Without prejudice to section 16 or section 17(1) of the Prevention of Bribery Ordinance (Cap. 201), if a magistrate is satisfied by information on oath that there is reason to believe that there is in any premises or place anything which is or contains evidence of the commission of any of the offences referred to in section 10, he may by warrant directed to any officer authorize such officer, and any other officers assisting him, to enter and search such premises or place."

2. For the purposes of this case the only offence referred to in s10 which is relevant is s9(1)(a) of the Prevention of Bribery Ordinance, Cap 201 which reads:

"9. Corrupt transactions with agents

(1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his -

(a) doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business; or

(b) showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal's affairs or business,

shall be guilty of an offence."

3. Mr Osbom placed before the magistrate an information containing 24 numbered paragraphs which was then sworn to. A prime suspect identified in that information was one Ch'ng Poh. On the basis of that information a search warrant was issued, to search the offices of a firm of solicitors X and Co.

4. On 12 June 1996, on Ch'ng Poh's application, a High Court judge granted him leave to issue judicial review proceedings to quash the magistrate's decision to issue the search warrant on the ground, amongst others, that the magistrate had no jurisdiction under s10B of the Independent Commission Against Corruption Ordinance to issue the warrant. The application was eventually heard by Seagroatt J on 2 July 1996. By his judgment given on the same day the judge allowed the application and ordered that the warrant be quashed. The Commissioner of the ICAC, being dissatisfied with that judgment, now appeals to this court.

The exercise of power under Section 10B

5. Section 10B places upon a magistrate the duty of satisfying himself no more than this: that there is reason to believe that in the premises named in the warrant (in this case the offices of X & Co.) there are documents containing evidence of the commission of an offence by someone under the relevant provision of section 10: Here, it is s9(1)(a) of the Prevention of Bribery Ordinance.

6. The threshold under s10B is low, for obvious reasons. The documents, if they exist, might prove or disprove the commission of a relevant offence; the assent of belief is therefore given on more slender material than proof of a fact. But, ultimately, it is for the magistrate to exercise an independent judgment. To adopt the language of an Australian judge, Burchett J, quoted in the judgment of the High Court of Australia in George v. Rockett [1990] 93 ALR 483 at 487:

"The duty, which the [magistrate] must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the [magistrate] should stand between the [ICAC] and the citizen, to give real attention to the question whether the information proffered by the [ICAC] does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs."

7. This point must be emphasized at the outset: The ICAC is not the police: It does not have a general power of investigating crime in Hong Kong: The power of investigating common-law offences like perverting or obstructing the course of justice arises only if such offences are disclosed in the course of an investigation by the ICAC of a suspected offence under the Prevention of Bribery Ordinance or the Corrupt and Illegal Practices Ordinance : see s10(2) ICAC Ordinance.

8. Accordingly, the jurisdiction of a magistrate issuing a search warrant on the ICAC's application is similarly limited.

9. Mr McWalters, counsel for the ICAC, suggested in the course of argument that it was only because the search warrant in this case related to the premises of a firm of solicitors that the judge scrutinized the issue of the warrant so closely. This, with respect, misses the point. The place of the search is not the issue; the question is whether the ICAC had exceeded its statutory powers of investigation in this case and whether, in consequence, the warrant was unlawfully issued.

The information

10. The information, as sworn, contained much background material of little relevance. It might even have obscured the real point the magistrate had to consider.

11. In essence, the material boiled down to this:

(1) Ch'ng Poh had been convicted in July 1994 of offences of conspiracy to defraud and publishing a false statement in the annual reports of a limited company. He was sentenced to a total of 5 years' imprisonment and ordered to pay costs not exceeding $15 million.

(2) A key prosecution witness at his trial was one C.H. Low, an accomplice.

(3) After his conviction, Ch'ng Poh lodged an appeal against conviction to the Court of Appeal.

(4) Mr A, a partner in the firm of solicitors X and Co., was Ch' ng Poh's solicitor on his appeal. The firm did not act for Ch'ng Poh at his trial.

(5) Warwick Reid, the former head of the Commercial Crimes Unit in the Legal Department, imprisoned for corruption in July 1990, was approached by Mr A in prison; Mr A proposed to Reid that if Reid could assist Ch'ng Poh's appeal by swearing an affidavit that would discredit C.H. Low as a witness, Reid would be paid a very substantial sum: the implication being that some of the statements in that affidavit would be false.

(6) Mr A later visited Reid in prison again and asked him to sign a prepared affidavit which Mr A had brought along with him. Reid refused because he wanted payment first. Mr A handed a name card to Reid and told Reid that the person named on the card, a T.K. Li, would contact him in New Zealand after his release from prison.

(7) T.K. Li did contact Reid in New Zealand later, after Reid's release, and paid him NZ$1 million and US$25,000 for making the affidavit. The affidavit was sworn on 2 December 1994, three days after Reid's return to New Zealand horn prison in Hong Kong.

(8) In mid-December 1994 Reid went to Singapore and met C.H. Low and T.K. Li. A discussion took place on how much C.H. Low would be paid for not contradicting what Reid had said in his affidavit and generally for not co-operating with the ICAC. There were further discussions later concerning payment for C.R. Low's silence. T.K. Li acted as the go-between for Ch'ng Poh.

(9) In one intercepted telephone conversation between Reid and C.R. Low, Reid said he would telephone Mr A to enquire about the progress regarding the proposal to pay C.R. Low for not cooperating with the ICAC.

(10) The information concluded thus:-

"23. The evidence gathered to date supports the allegations that REID was paid NZ$l million for signing the false affidavit and that he also tried to persuade C.R. Low not to co-operate with the ICAC or give evidence contradicting REID's affidavit in return for payment.

24. Advice has been sought from the Attorney General's Chambers and I now make application for search warrants under Section 10B of the Independent Commission Against Corruption Ordinance Chapter 204, to enter and search the offices of [X & Co.] Solicitors and Notaries and the residence of [Mr A]."

12. The magistrate, as mentioned earlier, was not entertaining proof of guilt of any kind. On the material before him, there was reason to believe that the solicitors' offices and perhaps Mr A's residence might contain evidence of a conspiracy to pervert the course of justice, possibly involving Mr A, if what Reid had allegedly said, as reported to the ICAC by C.R. Low, were true.

13. By the time of the events related in the information, Reid had long ceased to be a Crown servant. Inducements made to him by Mr A had nothing to do with his former capacity as a Crown servant. As far as Reid was concerned s9(1)(a) of the Prevention of Bribery Ordinance was plainly not relevant.

Section 9(1)(a) offence

14. Mr McWaIters accepts, quite rightly, that s9(1)(a) is the sole legal foundation for the issue of the warrant to the ICAC officers, as far as this case is concerned. Section 9(1)(a) deals with corrupt agents soliciting or accepting bribes as an inducement to or reward for or otherwise on account of doing something in relation to his principal's affairs. As Lord Templeman said in Attorney-General for Hong Kong v. Reid [1994] 1 AC 324 at 330-G:

"A bribe is a gift accepted by a fiduciary as an inducement to him to betray his trust."

15. As such, the agent is accountable in Jaw to his principal for the bribe: as Reid himself was so held, in relation to the HK$12.4m received by him as an inducement to him to abuse his position as head of the Commercial Crimes Unit.

16. Or, to take another example, the case of Morgan v. D.P.P. [1970] 3 AER 1053, referred to in argument before us. There the appellant was a car inspector i.e. agent of the Rover Co. Ltd. and he Corruptly obtained a sum of £25 as an inducement for doing an act in relation to his principal Rover's affairs: that is, as a union official, suggesting at a management/union meeting that a Rover sub-contractor who had previously been "blacked" should be reinstated. Plainly, the appellant would have been accountable to Rover for the £25 bribe received.

17. Who, on the face of the information in the present case, was the "agent" and who was the "principal" for the purposes of s9(1)(a)? Or, to put it another way: who had, on the material disclosed, come under a liability in equity to account to his principal for the breach of his fiduciary duties by accepting a bribe?

18. On a plain reading of the information s9(1)(a) was simply not engaged. Mr A was suspected by the ICAC to have been acting as Ch'ng Poh's agent, offering a substantial sum to Reid to swear the false affidavit, with a view to improving Ch'ng Poh's chances of success on his appeal. Ch'ng Poh was Mr A's principal. Again, in preparing the false affidavit and asking Reid to sign it, Mr A was suspected of having acted in the same capacity. Mr A was also suspected of playing a role in persuading C.H. Low not to co-operate with the ICAC, acting as Ch'ng Poh's agent in some undefined "middle-man" role in relation to payment to be made to C.H. Low.

19. Here, on the face of the information, it was simply the case of an allegedly dishonest solicitor prepared to do his client's dirty work - presumably for a substantial reward.

20. Section 9(1)(a) criminalizes corrupt transactions with agents: not dishonest acts by agents. On the face of the information, no offence under s9(1)(a) was disclosed.

The argument in the court below

21. As summarized at p6 of Seagroatt J's judgment, the argument in the court below was this:-

"Mr Reading on behalf of the I.C.A.C. argues that the allegation against 'Mr A' constitutes an offence under S.9 of the Prevention of Bribery Ordinance and concedes that if that is wrong then there is no basis for an application for the warrant under Section 10B of the I.C.A.C. Ordinance. He advanced an interesting and novel argument that 'Mr A' as a solicitor acting as agent for his firm or its senior partners, and with an agreement by the client to pay his fees, who seeks to pervert the course of justice by bribing a potential witness to swear to a dishonest affidavit is well within the ambit of Section 9(1 )(a);"

22. This argument was rejected by the judge.

On appeal

23. Before us Mr McWalters advanced essentially the same argument: The firm, X & Co., was Mr A's principal; the firm was acting for Ch'ng Poh as solicitors on the appeal; Mr A, in supplying legal services for Ch'ng Poh, was acting as an agent for his firm; Mr A was doubtless going to receive a substantial reward for doing Ch'ng Poh's bidding; it was therefore a case of an agent soliciting or accepting an advantage on account of his doing an act "in relation to his principal's affairs".

24. With respect to Mr McWalters, the argument has all the hallmarks of what Donaldson J (as he then was) once categorized as a "Temple afterthought" (see M. Golodetz & Co. v. Czarnikow [1980] 1 WLR 495 at 512-H): The contrived and ingenious argument of counsel learned in the law: intellectually teasing, but remote from reality.

25. No-one reading the information would have construed it in the sense for which counsel contends. It is impossible to imagine the magistrate reading it in that way.

26. In this regard, it is useful to recall an observation of Bokhary JA in Neil Pryde Ltd. v. Bryan Chau [1995] 2 HKLR 125 at 130:

"The law on search warrants must ... be as free from subtlety as possible. It should of course lean in favour of the individual, but not to the point of becoming unrealistic."

27. Here, the argument is the other way. The court is asked to undergo semantic contortions in order to save the warrant from being quashed.

28. Mr A was not, in terms of s9(1)(a), doing an act in relation to the firm's affairs: the act (preparing the false affidavit, inducing Reid to sign etc.) was in relation to Ch'ng Poh's affairs. Mr A was acting for Ch'ng Poh.

29. The matter can be tested in this way: Would the other partners of the firm be able to hold Mr A accountable in equity for any payment received by Mr A, on the basis that such payment was a bribe: i.e. an inducement to act against the firm's interests? As explained in Attorney-General for Hong Kong v. Reid at 331-B, the foundation of such suit lies in equity: that it is unconscionable for the fiduciary to obtain and retain a benefit in breach of duty. The agent is not entitled to obtain a benefit for himself by the mis-use of his fiduciary position. If he does, he is accountable to his principal. On the face of the information, an action by the partners of X & Co. against Mr A to account for the reward received would have been absurd.

Was the judge right to interfere?

30. Counsel quite rightly emphasized the point that the exercise of judgment in issuing the search warrant under s10B was for the magistrate, and' not for the judge; it is not good enough for the judge to say: "on the material disclosed in the information I would not have issued the search warrant". To quash the warrant the judge must go so far as to conclude that the information as sworn by the ICAC officer was incapable of leading to the conclusion that the premises to be searched might contain evidence of the commission of a s9(1)(a) offence.

31. It is plain from his judgment that the judge so concluded. In my view he was right to do so.

32. Mr McWalters submits that the judge had misunderstood Mr Reading's argument on behalf of the ICAC: the judge thought that the ICAC's case was that Mr A was the offeror of the bribe (offering a bribe to Reid to make the false affidavit) whereas in truth the ICAC's case was that Mr A was the offeree: receiving some hidden benefit from Ch'ng Poh by rendering the dishonest services, in relation to his "principal's affairs", that is, his own firm's affairs. It is not surprising that the judge had "misunderstood" the argument. Only by the application of the most convoluted logic, in reading the information, could one begin to glimpse such a conclusion. A magistrate, in reading the information, is required to give it an ordinary straight-forward interpretation. He is not required to undergo mental gymnastics in order to justify the issue of the warrant. If, on a plain reading of the information, the magistrate finds no reason to believe that the premises might contain evidence of the commission of the relevant offence, he must decline to issue the warrant.

33. In the court below there was some discussion of the form of the warrant issued by the magistrate. Although, ultimately, nothing turns on this, it is worth making two observations:

(1) The warrant refers to documents "relating to the preparation and presentation of affidavits made by Charles W. Reid, Chan Yau-ming and Lai Kwok-seung". The information itself only refers to the affidavit made by Reid and makes no mention of Chan and Lai. When this was put to counsel at the hearing, he was quite unable to explain why the warrant authorized the search for documents relating to the preparation of affidavits by Chan Yau-ming and Lai Kwok-seung. This, regrettably, is an indication of the sort of care exercised in issuing the warrant: which requires sworn information to be put before the magistrate. Assuming that the investigator Mr Osborn had, in attending before the magistrate, made some oral statement which led to the addition of those two names, it was clearly not information which was sworn. The warrant was, on any view of this matter, too wide.

(2) The warrant refers to the "commission of an offence referred to in section 10 of the Independent Commission Against Corruption Ordinance". Section 10(5) refers to a great many offences, including the offence of perverting or obstructing the course of justice: but the ICAC has no jurisdiction over those offences unless the commission of such offence was revealed during an investigation by the Commission of a suspected offence under the Prevention of Bribery Ordinance or the Corrupt and Illegal Practices Ordinance. Here, the focus - the only legitimate focus - of the investigation was said to be the commission of a s9(1)(a) offence by Mr A under the Prevention of Bribery Ordinance: This fact was totally obscured by the form of the warrant.

Conclusion

34. There was no reason to believe from the sworn information that the solicitors' offices might contain evidence of the commission of a s9(1)(a) offence. The magistrate accordingly had no jurisdiction to issue the warrant. The judge reached the right conclusion in that regard.

35. I would dismiss this appeal.

Liu JA

36. In 1994, a partner ("Mr A") of a law finn ("X & Co.") allegedly offered to arrange payment to Charles Warwick Reid ("Reid"), a former counsel in the Legal Department then serving a term in Siu Lam after his conviction, if he would swear a false affidavit discrediting a principal witness ("C H Low") at the fraud trial of the respondent ("Ch'ng Poh") for use in the respondent's appeal. Ch'ng Poh had been convicted and sentenced to five years' imprisonment and had lodged an appeal against his conviction and sentence. Ch'ng Poh was a client of X & Co, on whom Mr A attended. Mr A saw Reid in Siu Lam in his capacity of a solicitor of X & Co. Later, Mr A brought Reid a prepared affidavit to sign. It is evident that the affidavit of Reid for Ch'ng Poh's appeal was being procured in the course of providing professional services by X & Co. When Reid refused to sign the prepared affidavit before he was paid, Mr A arranged for Reid to contact and meet a Mr T K Li ("Li"), a relative of Ch'ng Poh's wife, in New Zealand after his release. A name card of Li was passed over to Reid by Mr A in Siu Lam. Three days after his release, Reid signed his affidavit in New Zealand and was paid NZ$1 million and US$25,000 in traveller's cheques for making the affidavit. His affidavit was sought to be used in the appeal of Ch'ng Poh, the respondent. The strong inference is that Mr A knew that Reid's affidavit was false and that Reid was to receive an enormous sum for making it.

37. The Independent Commission Against Corruption ("ICAC") further described a conspiracy of Reid, Ch'ng Poh, his wife, her relative Li and others to pervert the course of public justice by persuading C H Low with an offer of financial inducements not to come to Hong Kong to refute the contents of Reid' s false affidavit. Reid went to Singapore to meet C H Low. Prior to his departure from Singapore, C H Low saw Li hand Reid documents which apparently related to the appeal with a request that they be dealt with as a matter of urgency. The inference is that there was to be further liaison between Reid and Mr A.

38. On 27 May 1996, a search warrant was executed on the premises of X & Co. It had been issued by Mr A R Wright, a permanent magistrate, under s.10B of the Independent Commission Against Corruption Ordinance, Cap. 204 ("ICACO"). On Ch'ng Poh's application for judicial review, Seagroatt, J held that the magistrate had no jurisdiction to issue the search warrant which was accordingly quashed. Ch'ng Poh also claimed professional privilege to the documents seized. His claim of professional privilege has now been waived. This is the appeal of the Commissioner of ICAC. On the same allegations, two more search warrants were issued for and executed on other premises, but no seizure was made. Nothing therefore turned on them before the Judge.

39. Entry and search under a s.10B warrant may be authorised in respect of offences "referred to in section 10". It appeared to the magistrate "that there (was) reason to believe that there (was) in (the premises of X & Co.) ... evidence of the commission of …… offence referred to in section 10 ICACO" and he issued the search warrant under consideration.

40. S.10(1) ICACO refers to the Prevention of Bribery Ordinance Cap 201 ("POBO"), including its s.9(1)(a). Therefore, for the purposes of this appeal, an offence referred to in s.10 ICACO includes one which is suspected to have been committed by an agent accepting an advantage for doing an act in relation to his principal's affairs or business under s.9(1)(a) POBO. An "agent" is defined in s.2(1) of ICACO as including any person employed by or acting for another. S.7 of the Partnership Ordinance provides that every partner is an agent of the firm and his other partners for the purpose of the business of the partnership.

41. The pertinent questions faced by the magistrate in forming his reasonable belief under s.10B ICACO were whether Mr A was an agent and whether he accepted an advantage in his corrupt transaction with Reid for doing an act in relation to his principal's affairs or business. In the sworn information before the magistrate, focus was particularly put on Mr A as ICAC was seeking on the same allegations a search warrant for Mr A's residence. Once the magistrate formed a positive view on these, he could not have failed to hold a reasonable belief that evidence of Mr A's commission of the suspected "referred to" offence would be found in the premises of his firm. The Judge held that in procuring Reid's false affidavit, Mr A did not do any act in relation to the affairs or business of X & Co. In his judgment, the Judge had no difficulty drawing the primary facts from the sworn information, although it would seem that he failed to appreciate the true basis of the Commission's application under s.9(1)(a) POBO. What should not be lost sight of is the nature of a s.10B ICACO application, which need not be supported by "detailed factual substratum". The magistrate also experienced no difficulty in the primary facts given in the sworn information before him. I, too, readily take in these primary facts. Could it be gainsaid that there was in the sworn information sufficient material to, so to speak, engender the required satisfaction in the mind of the magistrate for the purposes of s.9(1)(a) POBO?

42. In Morgan v. Director of Public Prosecutions [1970] 3 All ER 1053, the defendant was an inspector in the employ of a car company. He was also a union convenor of shop stewards. He solicited and obtained cash payment for speaking out favourably for a sub-contractor at a management/union meeting. It was held that the defendant was an agent (not, be it noted, as an agent) and that what he did was in relation to as well the union affairs as his company's affairs. He was convicted of having corruptly accepted cash as a reward for doing an act in relation to his principal's affairs under s.1(1) of the Prevention of Corruption Act 1906. S.1 (1) of the 1906 Act read:

"If any agent corruptly accepts or obtains ..... from any person, for himself ..... any gift or consideration as an inducement or reward for doing ..... any act in relation to his principal's affairs or business ..... he shall be guilty of [an offence] ..... ".

43. Our s.9(1)(a) POBO which is closely modelled on s.1(1) of the 1906 Act reads:

"Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his –

(a) doing ..... or having done ..... , any act in relation to his principal's affairs or business,

shall be guilty of an offence".

44. On appeal to the Divisional Court, Lord Parker CJ in Morgan gave the words "in relation to his principal's affairs" a wide construction. At p. 1057 h/j, the Lord Chief Justice said:

"The opening words of s.1 (1) of the 1906 Act are: 'If any agent corruptly ..... obtains', not, be it observed, 'as an agent corruptly obtains'''. (Emphasis added).

The defendant in Morgan was an agent, but he was not acting "in relation to matters concerning his principal where he (owed) a duty as all agellt".

Lord Parker concluded:

"I am quite satisfied that those words 'in relation to his principal's affairs' fall to be widely construed". "..... the appellant was an agent and what was done here, albeit it was in relation to the union affairs, was also in relation to his principal's affairs"

45. I should mention in passing that in AG v. Li Fook-shiu [1990] 1 HKC 1, this court, differently constituted, accepted a joint statement of law that in order to secure a conviction under s.9(1)(a) POBO, the agent must be shown to have committed an accepting offence in his capacity as an agent to his principal. It would seem that the view embraced by the court at counsel's invitation was per incurriam. But what stands out from the ratio in Morgan relative to this appeal is that the words "in relation to his principal's affairs or business" in s.9(1)(a) POBO are to be given a wide construction.

46. Reid was paid for making his false affidavit. The principal witness, C H Low, was also offered to be handsomely rewarded. CH Low's opening bid was as much as HK$30 million. Mr A would face dreadful consequences if this alleged intrigue ever came to light. The irresistible inference is that Mr A would not have so involved himself without benefit. In any case, there is much substance in counsel's submission that even if the only benefit to Mr A for his gross misconduct was the payment to his firm of professional fees, that alone could and would constitute an advantage within the meaning of s.9(1)(a) POBO. That is sufficient evidence of a corrupt advantage for founding the requisite reasonable belief in s.10B ICACO.

47. Mr A was clearly an agent of X & Co. What was allegedly done by Mr A was done "in relation to his principal's affairs" given the very liberal meaning of those words. Mr A was seeking to procure a false affidavit for a client of X & Co., his firm. On any view of the meaning of those words, he must have been acting in relation to his firm's affairs.

48. It is well settled that the threshold of a magistrate being persuaded to believe with reason under s.1 OB ICACO so as to issue a search warrant is low. The magistrate is not hamstrung by the strict rules of evidence. It has been said that no “detailed factual substratum” would be required (Coghill v. McDermott, [1983] VR 751 at p. 756 line 40) and that “the assent of belief is given on more slender evidence than proof” (George v. Rockett, 93 ALR 483 at p. 491, lines 9 - 17). That should be all the more so at an early stage of an ICAC inquiry. We do not live in a perfect world. There is room for improvement in the sworn information, but that is not to say that material on which the magistrate could form his reasonable belief for the purpose of issuing the search warrant, was insufficient or lacking.

49. In Nguyen Ho & Others v. Director of Immigration, [1991] HKLR 576 at p. 583 D/E, of the parameters within which factual evaluation of a lower court may be disturbed, Sir Derek Cons spoke in these terms:

"Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal".

That warning must be more meticulously heeded in the case of an inferior tribunal forming a reasonable belief.

50. The magistrate was satisfied that there was reason to believe that the statutory prerequisites for a search warrant under s.10B ICACO existed. In the search warrant, reference was made to the affidavits of Chan Yau-ming and Lai Kwok-seung. Mr McWalters for the Commissioner of ICAC is unable to explain why these affidavits were so included. They were not mentioned in the sworn information placed before the magistrate. But that is not, by itself, proof of inattention or indifference. Moreover, any failure on the part of the magistrate to eliminate inaccuracies in the search warrant is not necessarily indicative of neglect in his earlier evaluation of reasonable belief under s.10B ICACO. It would not be right to accuse the magistrate of merely acting "as a rubber stamp to the state of mind of the informant".

51. The Judge was wrong to regard the actions of Mr A as falling outside s.9(1)(a) POBO. He considered the application on an assumed but erroneous basis of an offeror and offeree relationship. The case of the Commissioner was simply that Mr A had offered to arrange for Reid to be paid. It was never suggested that Mr A was himself the offeror of a sum in the millions. The Judge concluded that as an offeror himself of an advantage to Reid, Mr A could not have so acted in relation to his firm's affairs or business. I need not consider whether even on that erroneously assumed premise of the Judge, the liberal approach in Morgan would link X & Co. to Mr A who had gained entry to Siu Lam in his professional capacity, having the conduct of his firm's business and purporting to render legitimate service to one of its clients. The search warrant was well grounded.

52. For these reasons, I would allow the appeal, set aside the Judge's order, affirm the decision taken by the magistrate to issue the search warrant and reinstate it.

Hon Yang, CJ:

53. I have had the advantage of reading the judgments of Litton VP and Liu JA. I agree with Litton VP for the reasons he gives.

54. I too would dismiss the appeal.

55. The result is that, by a majority, the appeal is dismissed.

Mr I. McWalters, SACP and Ms L. Shine of the Attorney General's Chambers for Respondent/Appellant

Applicant/Respondent (CH'NG Poh) in person