Mohamed Yaqub Khan v. Attorney General
Read the full judgment text of CACV 155/1982 on BabelCite. This Court of Appeal judgment.
1. This appeal arises out of a decision by Judge Wong on a preliminary point of law which went against the plaintiff in an action for breach of statutory duty. The background of the case is as follows. The appellant, Mr. Mohammed Yaqub Khan, was a member of the Kowloon Cricket Club. On two dates in July 1980 he made anonymous allegations to the Independent Commission Against Corruption of corruption by the Manager and Officers and Members of the Committee of the Club. The telephone calls were re
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CACV000155/1982 Headnote Tort - cause of action - breach of statutory duty - since an informer whose identity is disclosed in contravention of s.30 of the Prevention of Bribery Ordinance (Cap. 201) is not one of a category of persons sought to be protected by the duty of confidentiality imposed, he cannot found an action on a breach of that duty - Cutler v. Wandsworth Stadium Ltd. [1949] A C. 398 and Lonrho v. Shell Petroleum Co. Ltd. (No. 2) [1982] A C. 173 applied.
BETWEEN
Coram: Hon. Leonard,V.-P., Cons and Fuad, JJ.A. Date:18th January 1983 ___________ JUDGMENT ___________ Fuad,J.A. 1. This appeal arises out of a decision by Judge Wong on a preliminary point of law which went against the plaintiff in an action for breach of statutory duty. The background of the case is as follows. The appellant, Mr. Mohammed Yaqub Khan, was a member of the Kowloon Cricket Club. On two dates in July 1980 he made anonymous allegations to the Independent Commission Against Corruption of corruption by the Manager and Officers and Members of the Committee of the Club. The telephone calls were recorded on tape and investigations began. A short time later officers of the ICAC played over the tape to a number of persons including those about whom allegations had been made and the informer's identity, that is the appellant's identity, thus became known and he was subsequently expelled from the Club in October 1980. He issued his writ in the District Court against the Attorney General, endorsed with Particulars of Claim, on the 19th February 1982. These set out the facts and aver that in the circumstances the disclosure Of Mr. Khan's identity was a breach of s.30 of the Prevention of Bribery Ordinance - Cap. 201 ("the Ordinance"). Paragraph e of the Particulars of Claim was in the following terms -
Damages are claimed against the Attorney General and he is sued by virtue of the Croon Proceedings ordinance (Cap. 300). 2. It seems that Mr. Khan later sought an Order for discovery and inspection of the files of the ICAC relating to the investigation and that the application was dismissed by another District Judge. Mr. Khan appealed to this Court and, we understand, the hearing of the appeal was adjourned pending the determination of a preliminary point of law which by agreement was later formulated as follows -
3. Judge Wong answered this question in the negative; hence this appeal. It should perhaps here be mentioned that the matter proceeded before the Judge on the assumption (which Mr. Peter Graham for the Attorney General did not concede) that the disclosure, in the terms of s.30 of the Ordinance, had been made "without lawful authority or reasonable excuse", and for the purposes of the preliminary issue, Mr. Graham conceded that Mr. Khan's identity was a "detail" of the "investigation" within the meaning of s.30 of the Ordinance. 4. This is what section 30 of the Ordinance says -
5. After reviewing the facts and arguments put to him, the Judge, in a carefully considered judgment, expressed the. view that the main aim of s.30 of the Ordinance was to safeguard the confidentiality of the ICAC investigation. On the assumption that a detail of the investigation had been disclosed without lawful authority or reasonable excuse, there had clearly been a breach of the provisions of the section. He came to the conclusion on the authorities which were referred to him and which he dealt with at considerable length in his judgment that while s.30 was intended to, prevent any harm that disclosure might bring about, Mr. Khan did not belong to. the class of persons which its provisions sought to protect, thereby giving him a cause of action in the event of a breach. 6. In my judgment Judge Wong was clearly right in concluding that the primary purpose of s.30 is to protect the confidentiality and efficacy of the investigation and thus it prohibits unauthorised disclosure to the person under investigation that he is under investigation and any details of such investigation. Obviously such knowledge would enable the person concerned, if he were so minded, to abscond, tamper with the evidence or otherwise attempt to frustrate the investigation. The second part of subsection (1) seems to me to have two aims. Information passed on to another concerning the identity of the person under investigation or any details of the investigation (including, I am prepared to accept for the purposes of argument, the means of identifying the informer) might come to the ears of the "suspect" and prejudice the investigation; and so the primary purpose of S.30 is thereby still advanced. However, particularly when regard is had. to subsection (2) of s.30, it seems clear to me that the section is also designed to protect the reputation of the person under investigation unless and until one or other of the events specified in subsection (2) has occurred. I remark here, without deciding the point of course, that a person who is informed against might well have a right of action for a breach of statutory duty if his identity is revealed in circumstances not justified by subsection (2). 7. I have no doubt that Mr. Khan did not come within measurable distance of establishing that on the true construction of s.30, in the context of the Ordinance as a whole, the duty of confidentiality was imposed for a specific category of persons of which he was a member - see Leung Chow Public Car Company v. The Attorney General, Privy Council Appeal No. 30 of 1981 and Lonrho 1td v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173, two cases referred to by the Judge in his judgment. Mr. Khan certainly falls in the category of persons afforded a certain measure of protection under s.30 of the Ordinance. On the authorities, therefore, I do not think he had any cause of action and I would dismiss the appeal.
Leonard, V. P, 8. I too would dismiss the appeal. What falls for decision here is a question of law which may be paraphrased in the following words: "Does disclosure of information contrary to s.30 of the Prevention of Bribery Ordinance afford a cause of action to a .member of the public who supplies. information to the ICAC and who is adversely affected by the disclosure. I such a person one with a aright to enforce the duty created by that section? From Cutler v. Wands orth Standium Ltd. [1949] A.C 398, a case which was cited by the trial Judge, it appears that the proper approach is to see whether or not on the true construction of the statute as a whole, a right of action by an individual aggrieved by the breach of one of the statutory duties imposed, ought to be implied. The matter resolves itself into the question. For whose benefit was the duty imposed? This question was most carefully considered by the trial Judge, all the relevant authorities were examined by him and I am quite satisfied that he was correct when he concluded that s.30 was enacted in the general interests of the public to safeguard the confidentiality of ICAC investigations, and that it was not, in my view, intended by the legislature to give rise to any private liability. I am quite satisfied that it was certainly not intended to impose liability towards a person giving information to the ICAC. I would therefore dismiss this appeal.
Cons, J.A.: 9. I agree with my lord that the appeal should be dismissed and I only add a few words of my own because the point is of some interest. 10. Mr. Bokhary approached the matter in this court in the same way that he did below, by posing three particular questions. With every respect to him I do not myself find assistance in that approach. I prefer to start with the general test laid down by Lord Simonds in Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398 at p.407 and quoted by the learned District Judge below:
11. The exceptions were elaborated by Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173 at p.185 and again quoted by the judge below:
12. Where the right is alleged to be created by statute, the Lord Justice had this further to add (at p.186) "... it has first to be shown that the statute, having regard to its scope and language, does fall within that class of statute which creates a legal right to be enjoyed by all Her Majesty's subjects who wish to avail themselves of it." 13. Now it is to my mind abundantly clear that s.30 does not create any legal rights at all, whether for the benefit or protection of a particular class of individuals or for the public in general. Its purpose is to regulate the investigation of bribery and corruption in much the same way as in Cutler v. Wandsworth Stadium, the Betting Act of 1934 was to regulate betting at race tracks. I do not find it possible to read into s.30 a particular intention to benefit or protect persons who might choose to telephone anonymous suspicions to the office of the ICAC. The protection of their identity, if it is to be protected at all, is to be found in s.30A. Section 30 is intended to preserve the confidentiality of the investigation itself, to see that it is not hampered by the premature disclosure of with whom, or what, it is concerned. That is in substance the view taken by the learned Judge below. In my judgment his decision was clearly right.
Representation: Mr. Kemal Bkhary (J.S.M.) for the Appellant Mr. Peter Graham and Mr. Harry Macleod (Legal Department) for the Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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