Chan Ching-cheung v. The Queen
Read the full judgment text of CACC 600/1976 on BabelCite. This Court of Appeal judgment.
1. that in deciding whether or not to give his consent the Attorney General was required to act according to principles of natural justice;
Cited by 2 cases
|
CACC000600/1976
----------------- Coram: Huggins, J.A., Leonard and Cons, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Huggins, J.A.: The Appellant was charged in the District Court under s.10(1)(b) of the Prevention of Bribery Ordinance and was convicted and sentenced. He appeals against conviction. Of the four grounds of appeal sought to be argued three concern alleged misdirections by the judge. The fourth, to which the present judgment is confined, attacks the jurisdiction of the District Court to hear the case at all. Section 10 falls within Part II of the Ordinance and it is provided by s.31 that no prosecution for an offence under Part II may be instituted without the consent of the Attorney General. The contention is that the prosecution against the Appellant was brought without such consent. As a document purporting to be the required consent and admitted to have been signed by the Attorney General was before the trial judge the argument necessarily involves an attack upon the validity of that document. Put shortly what Mr. Scrivener urges upon us is this - 1.that in deciding whether or not to give his consent the Attorney General was required to act according to principles of natural justice; 2.that one of those principles of natural justice was that the Attorney General when making his decision should have before him all the relevant facts; 3.that one of the relevant facts was any explanation offered by the Appellant for the pecuniary resources and property in his control; 4.that on the findings of the trial judge - and, indeed, on facts which are not disputed - the Appellant's explanation was not given until after the consent of the Attorney General had been given; 5.that the consent was therefore invalid and the proceedings based upon the consent were a nullity. We will deal with each stage in the argument in turn. First it is submitted that whatever may have been the position in the past the courts are now willing to supervise any official, whether acting in a "quasi-judicial" capacity or not, in whom is reposed a statutory duty to make decisions. The Attorney General, it is contended, is not outside this supervision of the courts when he is performing a statutory duty such as that imposed on him by s.31 of the Prevention of Bribery Ordinance, even if he may make decisions in the exercise of his prerogative powers which are not subject to the control of the courts. Thus it is conceded that if the Attorney General decides to give his fiat for the institution of relator proceedings the courts will not, at least as a general rule, question that exercise of his discretion: London County Council v The Attorney General 1902 A.C. 165. However, Mr. Scrivener submits that that is a very different type of case. The discretion there, not being created by statute, is not by statute circumscribed as to the matters which must be considered or which must be excluded from consideration: it is for the Attorney General himself to decide what are the relevant considerations and his discretion is absolute. We say "at least as a general rule" because Cairns, L.J., in Attorney General ex rel. McWhirter v Independent Broadcasting Authority 1973 Q.B. 629, 654E said:
Be that as it may, we are satisfied that the requirement of the Attorney General's consent to a prosecution under Part II of the Ordinance is intended to protect citizens from prosecution and from all the consequences which may flow from a prosecution where, for whatever reason, the prosecuting authority is unable to satisfy the Attorney General that the prosecution is in the public interest. No doubt one of the intentions was to avoid the public disquiet which would inevitably result from a flood of prosecutions which were either completely without foundation or otherwise such as might be regarded as harassment of the persons charged. To this extent the interests of the individual are the interests of the public, but no one except the individual can have a remedy: Durayappah v Fernando 1967 2 A.C. 337. If the individual also has no remedy the Attorney General could deliberately ignore his statutory duty with impunity. We do not for one moment suggest that the Attorney General has been guilty here of a deliberate default, nor is it the contention of the Appellant that the Attorney General has in any way shown a want of good faith. What is said is that, if the Attorney General has, even unconsciously, failed to extend to the Appellant the protection which the Legislature intended that he should have, then this court has power to intervene. We think that is right. The greater the powers conferred by a statute the more important is it that they should be exercised in the manner intended by the Legislature and the more vigilant should the courts be to ensure that they are so exercised. In the past the principles of natural justice have been formulated as a set of rules and in a case where any of them applied they all applied. That is no longer the law. The position since In re H.K. (an Infant) 1967 2 Q.B. 617 (if not before) has been that an official in whom a statutory duty resides must act fairly. What is fair depends upon the nature of the decision to be made. It is submitted that all that was required of the Attorney General was that he should have
As we understand it this part of the argument on behalf of the Appellant is not contested. Nor is it contested that one of the relevant facts to be considered by the Attorney General was any explanation given by the Appellant for the pecuniary resources or property alleged to be in his control. As to this both sides find indirect authority in the opening paragraph of the judgment of the Full Court in Sturgeon v Reg. 1975 H.K.L.R. 677. Issue is joined between the parties as to what was in fact considered by the Attorney General. What happened was this. Having seized the Appellant's papers and made an investigation, the officers of the Independent Commission Against Corruption decided that there were assets in the control of the Appellant which called for an explanation. They drew up a chart setting out their assessment of the values, which, if correct, no doubt did raise suspicions against the appellant. At a meeting on 17th January 1976, attended by the Appellant and his solicitor, this chart was presented to the Appellant and he was asked for his comments on it. According to the findings of the judge the Appellant was taken aback by the chart and its suggested implications. So puzzled was he, indeed, that when he was expressly asked to explain the large cash deposits reflected in his own and his wife's bank statements he did not hear the question and could make no reply. It has not been directly contended before us that these findings of the judge were unjustified, although counsel for the Crown did suggest that the absence of any reply to that question was a factor which the Attorney General might have considered when asked for his fiat. The meeting ended with the Appellant's asking for time to consider the charge and its being agreed that he should at a later meeting give such explanation "of the implications of the charge" as he "hoped" to be able to give. On 26th January the Attorney General gave his fiat. On 27th January the later meeting was held. At that meeting the investigating officer had the fiat in his pocket but he did not at once produce it: he listened to the Appellant's explanation and then produced the fiat and told the Appellant he was being charged. Mr. Scrivener not unnaturally argues that an explanation which had been promised before, but which had not yet been given on, the date of the fiat could not have been considered by the Attorney General. Mr. Duncan shrank from submitting that in the circumstances of the present case it would have been reasonable for the Attorney General to conclude that no explanation which the Appellant could possibly give would alter his conclusion, based solely on the evidence of assets, that a prosecution was justified. It may be that there could be a case where the assets were of such value and their acquisition surrounded by such circumstances that the possibility of an innocent explanation could be fairly ignored. It is sufficient that the present case is not that case. Mr. Duncan had to fall back on the presumption of regularity (see Reg. v Cain 1975 3 W.L.R. 131, 135G), on the argument that the Appellant had failed to give an explanation when asked for one and on the submission that the Attorney General was entitled to take a view different from that subsequently reached by the trial judge as to the proper inference to be drawn from that failure to explain. This is an attractive argument, for we are reluctant to conclude that there has been a failure of natural justice, but we cannot shut our eyes to the facts as found. We find it difficult to believe that if the Attorney General had been told that the Appellant had been given time to produce his explanation the fiat would have been granted in the mean time. Nor do we think the Attorney General would have been any more willing to give his fiat if, knowing that this further opportunity had been given, he believed that the Appellant had positively declined to offer an immediate explanation. Rather are we driven to conclude that the Attorney General was never given a fair account of the first meeting and in particular that he was not told of the enlargement of time in which an explanation was to be given. As Mr. Scrivener points out, the officer himself said in evidence that he would not have acted upon the fiat if a satisfactory explanation had been produced on 27th January. We appreciate that a line has to be drawn somewhere after which a fiat might properly be granted, even though a late explanation might result in the fiat's being withdrawn, but here the agreed deadline for explanation had not been reached when the fiat was issued. The effect was to deprive the Appellant of his right to have his explanation, however unsatisfactory it might be, considered by the Attorney General. For this reason we held that it was not a valid consent. What is the effect of holding that the fiat was invalid? It has been said that a wrong decision by the Attorney General to approve the institution of relator proceedings does not go to the jurisdiction of the court to hear those proceedings but merely to the conduct of his office: London County Council v Attorney General supra. This follows from the fact that the Attorney General is a party to the relator proceedings: if he agrees to become a party and a writ is issued no one can properly say that he lacked the power to sue, any more than it can be said that some other plaintiff, who has, for example, brought an unfounded action purely out of spite, lacked power to bring his action or that the court lacks jurisdiction to try it. However, where a statute makes the Attorney General's consent a condition precedent to the existence of jurisdiction to determine a case, the absence of consent goes to the root of the proceedings: it is not enough to say that the Appellant was found Guilty: R. v Bates 1911 1 K.B. 964. Accordingly we have no alternative to declaring the conviction to be a nullity and setting aside the sentence of imprisonment. We do so with the utmost reluctance for we feel sure that if the Attorney had in fact seen the explanation that was put forward at the subsequent meeting he would still have given his consent. Representation: |
Other judgments that cite this case