Lui Lok v. The Commissioner of the Independent Commission Against Corruption and Another
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CACV000013/1981 Interpretation - Prevention of Bribery Ordinance, s.14A - more than one "further order" restricting disposal of property may be made in respect of the same property. Dates of hearing: 26th May, 1981 and 8th June, 1981 M. Lee, Q.C. & P. Lee (Deacons) for Appellant. Graham & K.L. Lee (Legal Department) for Respondents.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard & Cons, JJ.A. Date of Judgment: 8th June 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. In this appeal much terms upon a very short point. Barker, J. dismissed an originating summons by which the appellant Plaintiff sought primarily to set aside a notice dated 19th June 1979 given by the Commissioner of the Independent Commission Against Corruption purportedly under section 14A(1) and (3) of the Prevention of Bribery Ordinance. It was headed "Further Notice" and it is common ground that that notice followed substantially similar notices dated 21st June 1976, 17th June 1977 and 16th June 1978 in respect of the same property. 2. The provisions calling for construction are in these terms:
The Commissioner contends that these provisions entitled him to make any number of further orders after the first, whilst the Appellant would have us say that they permit of only one further order after the first. It is common ground that nothing turns upon the use in subsection (3) of the word "order" where subsection (1) refers to "notice" and "direct". 3. The argument on behalf of the Commissioner is in two stages: first it is submitted that the ordinary canons of construction lead to the conclusion that no limit was intended upon the number of notices which might be served and, secondly, Counsel says that the provisions of the Interpretation and General Clauses Ordinance put the matter beyond any possibility of doubt. Mr. Martin Lee, for the Appellant, contests the first part of the argument and, as to the second, urges that the statute does not compel the adoption of any but the plain meaning of the words. 4. The learned Judge thought that the words of the section were sufficiently clear in the context of the Prevention of Bribery Ordinance alone. He accepted that it was right to have regard to the whole of the statute to ascertain the intention of the Legislature but found no indication that the power to issue notices under subsection (1) was restricted. Mr. Lee disputes this and emphasizes that the statute as a whole is penal in nature and that section 14A in particular constitutes an encroachment on the rights of the subject. Therefore, he says, the words must be interpreted strictly and, if there be ambiguity, must be given that construction which is in favour of the freedom of the individual: "a further order" means "one further order" in ordinary language. That view would not leave the Crown without a remedy, for it could apply for an injunction in civil proceedings to prevent the disposition of the property. 5. Mr. Graham supports the Judge's view on the basis that the only enabling provision in section 14A is subsection (1), which, he submits, in no way suggests that the power to issue notices is restricted. He contrasts that section with section 14C(1), which permits the making of "an order". For my part I do not see any material difference in this respect a provision which authorizes something to be directed "by written notice" and one which requires the making of "an order": having regard to the interference with the rights of the individual I would expect, in both cases, clear words to indicate that a succession of notices and orders was in contemplation and I agree with Mr. Lee when he says "the more Draconian the power, the more express the language ought to be". If such words are necessary where the intervention of the Court is required, as under section 14C, a fortiori they are necessary where the power is vested in a person exercising Executive functions, as under section 14A. 6. Under both sections the first notice or order is to have effect for a stated period. Section 14A makes no express provision for a second order but subsection (3) provides that "nothing in subsection (2) shall prevent the Commissioner from making a further order". It is difficult to see how anything in subsection (2) could have prevented the making of a further order if subsection (1) permitted it. However, the fact that the Legislature was concerned to ensure that subsection (2) was not interpreted as preventing a further order indicates an intention that at least one further order should be possible. If subsection (1) is, therefore, to be construed as permitting two successive notices, is there any reason why it should not be construed as permitting three or more successive notices? One must look for express limitation elsewhere. If subsection (3) were an enabling provision, I would be inclined to read it as enabling the issue of one further notice, but it is not an enabling provision at all, nor does it purport to restrict the exercise of the power under subsection (1). However, turning to section 14C one finds that subsection (4) has never permitted the making of a further order under section 14C(1) but has permitted the extension of the original order under subsection (1). Subsection (4), unlike section 14A(3), is an enabling provision and for that reason it was amended to make successive extensions possible: originally it allowed an extension "for a further period of three months", but by the amendment enables extensions to be made "for periods of three months at a time". 7. For these reasons I agree with the learned Judge that on the true construction of the provisions of the Prevention of Bribery Ordinance, standing alone, the notice dated 19th June 1979 was intra vires. The fact that the extent of the power could have been expressed in terms which left no possibility of argument does not, as was suggested, show that it was to be limited. 8. It is, therefore, unnecessary for the Commissioner to rely upon the Interpretation and General Clauses Ordinance. However, he submits that sections 7(2) and 39(1) put the matter beyond any possibility of doubt. They read:
He relies also upon the notorious section 19. A question posed by Mr. Martin Lee is whether the provisions I have read apply to the Prevention of Bribery Ordinance. The material part of section 2(1) of the Interpretation and General Clauses Ordinance reads:
Mr. Lee does not suggest that the Interpretation and General Clauses Ordinance must apply in its entirety to the Prevention of Bribery Ordinance if it applies at all, as might appear from the wording of section 2(1), and I did not understand him to argue that section 19 does not apply: he would say that it does not assist the Commissioner. He submits that section 7(2) also does not assist the Commissioner and that the argument based on section 39(1) begs the question What is the power conferred by section 14A(1) of the Prevention of Bribery Ordinance? Moreover, he contends that section 14A itself shows "a contrary intention". Had I come to a different conclusion as to the inherent meaning of section 14A, I think there might have been some force in these arguments. However, it is sufficient to say that in the event I think that section 39(1) reinforces the construction contended for by the Commissioner. 9. I would dismiss the appeal. Leonard, J.A.: 10. I would also dismiss this appeal and for the reasons given. Cons, J.A.: 11. I agree. 8th June 1981 Representation: |