J.V. Prendergast (I.C.A.C.) v. Peter Chan

Case No.CACC 768/1975

Court

Court of Appeal

Date20 Sep 1975

Judge—

Case Document

100%

CACC000768/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 768 OF 1975

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BETWEEN
	J.V. PRENDERGAST (I.C.A.C.)	Appellant
	and
	PETER CHAN	Respondent

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Coram: Yang, J. in Court.

Date of Judgment: 20th September, 1975.

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JUDGMENT

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1. This is an appeal by way of case stated.

2. On the 6th August, 1975 the Appellant who is the Deputy Commissioner of the Independent Commission Against Corruption, (hereafter referred to as the I.C.A.C.) made an application ex parte in chambers under Section 17A(6) of the Prevention of Bribery Ordinance for a magistrate's authorisation to detain the travel documents of one Peter Chan, being the subject of an investigation under the Ordinance, for a further period of three months. The reason for the application was that the investigation of which the said Peter Chan was the subject could not reasonably have been completed before the date of the application.

3. The learned magistrate, being doubtful as to whether an application under Section 17A(6) should be heard ex parte and in chambers, refused the application.

4. The question of law which this Court is called upon to decide are:

	(1)	Whether an application under Section 17A(6) should be heard in chambers.
	(2)	Whether an application under Section 17A(6) should be considered in the absence of the person under investigation without his being given an opportunity of contesting the claim of the Commissioner of the I.C.A.C. that the investigation could not reasonably have been completed before the date of the application.

5. Before answering the first question, it is necessary to refer to Section 18 of the same Ordinance, which deals with bail from persons about to leave Hong Kong after the commencement of investigations. Section 18(8) provides that all proceedings before a magistrate under Section 18 shall be conducted in chambers. There is however no such provision governing proceedings brought under Section 17A, which is silent on where an application under this section should he heard. It would therefore appear that the intention of the legislature is to give the magistrate a discretion to conduct the proceedings either in open court or in chambers.

6. In order not to defeat the purpose of this Ordinance, the desirability of secrecy for proceedings under Section 17A is so obvious as to require no explanation. In most cases, the magistrate would probably exercise his discretion in favour of a hearing in chambers, so as to avoid the publicity and the disclosure of information which may render the efforts of the I.C.A.C. useless. Indeed it will be difficult to imagine circumstances in which a magistrate in the interest of justice ought to exercise his discretion to conduct such a hearing in open court.

7. On the interpretation of Section 17A, my answer to the first question is that a magistrate may conduct proceedings under Section 17A(6) either in chambers or in open court.

8. In now come to the second question. Whilst Section 14C specifically refers to an application ex parte for a restraining order, and Section 14D refers to an application ex parte for the revocation of a restraining order, Section 17A(1) reads:

"A magistrate may, on the application of the Commissioner, by written notice require a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance to surrender to the Director any travel document in his possession."

9. By Section 17A(2), a notice under subsection (1) shall be served personally on the person to whom it is addressed.

10. Though Section 17A does not make any specific reference to an application ex parte, it is clear on a careful reading of the section that in an application under that section, the presence of the person under investigation is not necessary. If it is intended that the person must be present when the application is made, there would be no necessity for a written notice to be served upon him personally. The requirements of a written note and of personal service in my opinion envisage the absence of the person under investigation. It would be strange indeed if his presence is not necessary for an application under subsection (1) but necessary under subsection (6).

11. The fact that the person who is the subject of an investigation is absent in proceedings under Section 17A(6) does not mean that his interests are entirely without protection. The magistrate does not act as a rubber stamp. He must be satisfied that the reasons and facts advanced by the I.C.A.C. warrant a further detention of the travel documents. The magistrate will no doubt scrutinise each application with circumspection. In most cases, evidence in the form of affidavits in support of the application should be sufficient, though in an appropriate case, the magistrate may well wish to hear oral evidence, for example, when he wants to clarify certain statements in the affidavit.

12. On the interpretation of Section 17A, my answer to the second question is yes.

	(T.L. Yang)
	Puisne Judge

Representation: