ALICK AU SHUI YUEN v. SIR DAVID FORD, DEPUTY TO THE GOVERNOR AND OTHERS

HEADNOTE

Judicial Review - Section 12(2) Prisons Ordinance Cap. 234 - whether production of documents is necessary for fairly disposing of matter - Order 24 rules 8 & 13 - Public Interest Immunity.

HCMP No. 2827 of 1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_________________

______________

J U D G M E N T

______________

1. In view of the public interest in this matter, I propose to give this judgment in open court.

2. In this application for Judicial Review by Mr. Alick AU (AU). I have before me a summons dated 10th November 1990 which seeks an Order for specific discovery against all five Defendants.

3. I originally had before me a summons for specific discovery dated 24th October 1990 but this has been withdrawn and replaced by the one dated 10th November 1990. No point is taken about the lateness of this summons, but Mr. Huggins for the Independent Commission Against Corruption (ICAC) and the Attorney General made some points which stemmed from the absence of any affidavit in support of this summons. To these points I will have to return later.

4. As is well-known, Charles Warwick Reid (REID) was sentenced on 6th July 1990 to 8 years imprisonment by the Chief Justice for an offence under Section 10 of the Prevention of Bribery Ordinance Cap. 201.

5. On the 5th day of July 1990, the Deputy to the Governor, Sir David Ford, made an order under Section 12(2) of the Prisons Ordinance Cap. 234 which provided that if REID was sentenced to a term of imprisonment, he

"be immediately taken to and detained in the Independent Commission Against Corruption Detention Centre at 10th floor, Murray Road Carpark Building, Murray Road, Central, Hong Kong, in accordance with the undertakings given by the Commissioner of the Independent Commission Against Corruption to the Commissioner of Correctional Services as aforementioned."

6. AU is a solicitor who has been charged with offences in respect of which REID is a major Crown witness. AU has not been granted bail and is detained pending his trial for these offences.

7. On 7th September 1990, O'Connor J. granted AU leave to commence Judicial Review proceedings under the provisions of 0. 53 r. 3 of the Rules of the Supreme Court. The relief sought by AU in these proceeding is as follows:-

"1.     A declaration that the said Order of the Deputy to the Governor is ultra vires void and of no effect.

2.     Alternatively, Certiorari to bring up into the High Court for the purpose of quashing it, the said Order of the Deputy to the Governor.

3.     A declaration that the continued detention of Charles Warwick Reid in the office of the Independent Commission Against Corruption pursuant to Section 12(2) Prisons Ordinance Cap. 234 is unlawful.

4.     Alternatively, prohibition or an injunction directed to the Commissioner of the Independent Commission Against Corruption preventing the further detention of Charles Warwick Reid in the offices of the Independent Commission Against Corruption pursuant to Section 12(2) Prisons Ordinance Cap. 234.

5.     Mandamus directed to the Commissioner of Correctional Services directing him to take the said Charles Warwick Reid into his custody and to detain the said Charles Warwick Reid in a prison as defined in Section 4 Prisons Ordinance Cap. 234.

6.     A declaration that the time spent by Charles Warwick Reid in the offices of the Independent Commission Against Corruption pursuant to Section 12(2) Prisons Ordinance Cap. 234 was not time spent under and towards the sentence of 8 years imprisonment imposed upon the said Reid by the Chief Justice of Hong Kong, Sir Ti Liang Yang on 6th July 1990."

8. It will be seen from the relief claimed, and it was certainly made clear by Mr. McCoy in argument, that the crucial issue in this case is one of statutory construction. Although Wednesbury unreasonableness was also mentioned. I think it is common ground that this application for discovery is said to be necessary to mount the argument that the Order of 5th July 1990 was unlawful in that it did not come within the meaning of Section 12(2). Section 12 provides as follows:

"12.(1)     When the attendance of any prisoner at any place is required by a court tribunal or other body performing judicial functions or for the purposes of any enactment, the Commissioner shall arrange for his transfer in custody to and from such place and during any such transfer the prisoner shall be deemed to be in legal custody.

(2)     Without prejudice to sub-section (1) if the Governor, after consultation with the Commissioner, is satisfied that the attendance of a prisoner at any place is desirable in the interests of justice or for the purposes of any public inquiry the Governor may by order direct that prisoner to be taken to that place in pursuance of such interests or for such purposes and while absent from a prison in pursuance of such order, the prisoner shall be deemed to be in legal custody."

9. Mr. McCoy also relied upon Section 9 of the Prisons Ordinance which provides as follows:

"9.     Prisoners shall be under the control of the Commissioner who may

(a)     allocate them to suitable institutions under his control,

(b)     classify them according to the classifications laid down by the Governor-in-Council from time to time under Section 25."

10. His argument in a nutshell is that Section 12(2) cannot be wide enough to cover the incarceration of a person for the whole of, or a substantial part of his sentence in ICAC custody. He submits that the words "attendance of a prisoner at any place" is a reference to some transitory movement, such as to attend a funeral or to go to a locus in quo. He says that the Section contemplates a movement from custody under the Prisons Ordinance and Rules to somewhere else, but in this case he alleges that REID has never been held under the Prisons Ordinance and Rules and thus the Section is inapplicable. He further argues that in this case it is clear that the Deputy to the Governor took into account consultations with ICAC whereas the Section only contemplates consultations with the Commissioner for Correctional Services.

11. Mr. McCoy says that the discovery is needed in order to make good the factual basis upon which he intends to argue that the Order of 8th July 1990 is ultra vires.

12. It is necessary to consider precisely what specific discovery is sought by this summons.

13. As against Sir David Ford

1.     the original Order under Section 12(2) signed by Sir David. A copy has been supplied and this is no longer an issue.

2.     Correspondence with the other respondents leading up to the making of the Section 12(2) Order. This is notly contested.

3.     A copy of the Order signed by REID. This does not exist and is no longer pursued.

14. As against the Commissioner of Correctional Services

1.     Correspondence with the other respondents

2.     The undertakings given by ICAC referred to in the Order and all correspondence in connection therewith. These undertakings are recited in the Order itself

3.     Copy of the Order signed by REID. No longer pursued.

15. As against the ICAC

1.     Copy Order signed by REID. Not in existence

2.     Copies of all immunities given to REID. Disputed.

3.     Correspondence with other respondents leading up to the Order. Disputed.

4.     Correspondence with REID, or his solicitors regarding the immunities. Disputed.

5.     Correspondence with Attorney General regarding the immunities. Disputed.

6.     Undertakings given to Commissioner of Correctional Services referred to in the Order. The only undertakings are those recorded in the Order.

7.     Correspondence with Attorney General and REID regarding the surrender of his corrupt moneys pursuant to the Order of the Chief Justice. Disputed.

8.     A written record of REID's movements outside Murray Road Carpark since 30th March 1990 (date of his return from Manila). (This will be covered by a very helpful undertaking given by Mr. Huggins on behalf of ICAC to which I will refer later.)

9.     All statements made by REID other than those supplied to AU's solicitors. Disputed.

16. As against The Attorney General

1.     The copy Order signed by REID. No longer relevant.

2.     Copies of the immunities given to REID. Disputed.

3.     Correspondence relating to the Order. Disputed.

4.     Correspondence with REID and his advisers relating to the immunities. Disputed

5.     Correspondence with ICAC relating to immunities. Disputed.

6.     Correspondence relating to the undertakings given by ICAC

7.     Correspondence with ICAC and REID relating to the surrender of corrupt moneys. Disputed.

And lastly

17. As against REID

1.     Copy Order signed by REID, no longer relevant.

2.     Copies of all immunities.

3.     Correspondence relating to the Order.

4.     Correspondence relating to the immunities.

5.     Correspondence relating to the corrupt moneys.

6.     All statements made to ICAC other than those already supplied.

18. Mr. McCoy submitted that the discovery sought would:

"(a)     Assist in strengthening AU's locus standi. He has to have locus standi to bring these proceedings and I was told that this will be a live issue on the substantive hearing,

(b)     Assist in strengthening the case that REID was not being held by the Correctional Services Department. Picking up a phrase from Sir John Donaldson, Mr. McCoy asked rhetorically "why shouldn't the Government put all their cards on the table",

(c)     Show that only ICAC has been appointed under Section 12(2).

19. Mr. Andrew Li, QC who appeared for Sir David Ford and the Commissioner of Correctional Services submitted that I should consider the following stages.

(1)     Are these documents relevant to the issues in this application for Judicial Review

(2)     If so, has the Applicant made out a sufficient case under Order 24 rule 13 that an order for production is necessary for the fair disposal of the matter - the onus being on the Applicant.

(3)     If the Applicant has discharged that onus, has the Financial Secretary's certificate dated 10th November 1990 made out a cogent class claim for Public Interest Immunity (P.I.I.).

(4)     If so, the court should balance the public interest in the administration of justice (that all relevant and necessary documents be produced) against the public interest referred to in the Financial Secretary's certificate (that it would be injurious to the public interest for the documents to be produced). He submitted that this balancing exercise should be done without inspection by me (or as Lord Edmund Davies put it without "a judicial peep").

(5)     In order to justify the court in having a peep, the Applicant has to show that it is likely that the documents do contain material that gives substantial support to his case.

(6)     If I do decide to take a peep, then I have to carry out the above balancing exercise in the light of that peep.

Relevance and Necessity

20. Mr. Li pointed out that Mr. McCoy had submitted that the Applicant's case was concerned with the construction of Section 12(2). He said that three points of construction had been made in the course of Mr. McCoy's submissions.

(1)     Section 12(2) does not authorize long term detention, nor the regime under which REID is held. (This regime is referred to in an affidavit from Mr. Sissons a partner in the firm of solicitors acting for, inter alia. ICAC).

(2)     Section 12(2) does not authorize the Governor to entertain communications from ICAC before making the Order.

(3)     Section 12(2) only operates on "prisoners" and REID has never been in the custody of the Correctional Services Department.

21. In short, Mr. Li submitted that production of the documents sought in this summons was not necessary to mount these submissions of statutory construction. He conceded for the purposes of this argument that the documents were relevant in the Peruvian Guano sense. But he submitted that the Applicant had failed to show that these documents are necessary for the fair disposal of this matter under the provision of Order 24 rule 13.

22. Order 24 rule 13 which deals with production has to be contrasted with Order 24 rule 8 which deals with listing of documents. Under Order 24 rule 8 it is for the party objecting to discovery under rule 3, 7 or 7A of Order 24 to satisfy the court that discovery is not necessary or not necessary at that stage. This is made clear from a judgment of the English Court of Appeal in Dolling Baker v. Merrett (1990) 1 WLR 1205.

23. Order 24 rule 13(1) provides as follows:

"(1)     No order for the production of any documents for inspection or to the court, shall be made under any of the foregoing rules unless the court is of an opinion that the order is necessary either for disposing fairly of the cause of matter, or for saving costs."

24. In Dolling Baker at p. 1209, Parker, L.J said this:

"It is to be noted that in contrast with rule 8, which provides that the order is not to be made if and so far as the court is of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs under rule 13(1) the provision is that no order is to be made unless the court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

It is submitted on behalf of the first defendant that the effect of rule 13(1) is that the burden of satisfying the court that production and inspection is necessary is squarely upon the party applying, whereas under rule 8 it is for the party who is objecting to any such order to satisfy the court that discovery by list or affidavit is not necessary. It appears to me that that approach and submission are correct, and there is a perfectly sensible reason for it. If one is merely at the stage of discovery it does no harm in most cases for the party aginst whom discovery is sought merely to list his documents. That discloses that he has them or has power over them. But he can object to produce them on the ground of privilege or, indeed, on any other ground. At that stage not very much has occurred except that the applying party will be enabled to know what documents the objecting party has, and it is right that the burden should be upon the objector in such a case. When, however one gets to the stage of production and the document is to be produced to the court or the other side, the position is different, and it should be, and the rules appear to me to state with complete clarity that it is for the party seeking production to satisfy the court that such production is necessary for the purposes specified in rule 13(1). namely, for disposing fairly of the cause or matter or for saving costs.

25. Mr. Li also cited Lord Edmund Davies in Air Canada v. The Secretary of State for Trade (1983) 2 A C. 394 at p. 441, for further support for the proposition that necessity and not relevance is the test.

26. So the burden is on the Applicant to satisfy me the production of these documents "is necessary either for disposing fairly of the cause or matter or for saving costs". It is not sufficient to show that these documents are relevant. It is not enough to show that production is "desirable" to use the word mentioned by Mr. McCoy

27. Mr. Li submitted that the documents sought in this application do not satisfy the necessity test. He said that as this was a case which concerned the statutory interpretation of Section 12(2), the documents sought would not assist in that regard. Further, he submitted that if the documents sought could assist, the Applicant had not demonstrated that they would advance his case or damage the Respondents case. They may or may not but the onus had not been discharged. He further submitted that this application failed in limine and thus it was not strictly necessary to go and consider the claim to P.I.I. because the application had failed at the threshold stage.

28. Mr. Li did concede that the third point of statutory construction namely that Section 12(2) only operated on prisoners would require an evidential basis. However he submitted that the matter was clear because on 13th July 1990 the Secretary for Security had faxed the Applicant's solicitor in the following terms:

"With reference to your letter dated 10th July 1990 I confirm that the ICAC premises at Murray Road are not set apart for the purposes of a prison under Section 4 of the Prisons Ordinance (This fax is exh PJT-7 to Mr. Taylor's affirmation dated 7th September 1990)."

29. During the course of his submissions Mr. Huggins for ICAC and the Attorney General offered to identify all places in which REID had been detained and, whether or not he had been accompanied by officers of Correctional Services Department outside Murray Road Carpark Building from the time of the making of the Order on the 5th July 1990 to the first time REID had been brought to the ICAC detention centre after sentence on the 6th July 1990. After a very little prompting from me Mr Huggins agreed on behalf of ICAC to give this information as from the 30th March 1990 the date of REID's return from manila. By letter dated 15th November 1990 Herbert Smith & Co. who instructed Mr. Huggins wrote to the Applicant's solicitors Alsop Wilkinson (copied to my clerk) stating that REID had at all times been detained in the physical custody of ICAC save for the occasions specified in the letter. The letter goes on to confirm that:

"No CSD officers are or have been in attendance at ICAC Headquarters at Hurray Road or present during Charles Warwick Reid's court attendance (save where CharIes warwick Reid attended court for sentencing on 6th July 1990) or elsewhere in connection with the detention of Charles Warwick Reld."

30. The letter most helpfully concluded by stating that if it was thought that information provided was deficient in any manner (or was not in line with what I had intended to be provided) then Herbert Smith & Co. wished to know. On 17th November 1990 the 2nd Respondent filed a Notice admitting facts which mirror the matters contained in Herbert Smith's letter of 15 November 1990. Further the solicitors for the 2nd Respondent served on the Applicant's solicitors copies of certain C S D records.

31. On the question whether there was any communications between ICAC and the Governor Mr Li helpfully conceded that there were such communications and thus Mr McCoy can at the substantive hearing rely upon that admission in support of his arguments on the statutory construction Section 12(2).

32. Mr. Huggins very helpfully reduced his client's objections to specific discovery into tabular form.

33. As to the immunities granted to REID he makes the point that there is no affidavit filed on behalf of the Applicant that indicates why these documents are relevant to the construction of Section 12(2). He says that these are clearly irrelevant to these proceedings although he conceded that at the trial or trials when REID is a witness they may take on a new significance. He relies on Mr. Sissons affidavit dated 10th November 1990 wherein it is stated that "neither the place nor the condition of REID's detention form any part of any immunity from prosecution given to REID by the Attorney General". Further in a letter dated 8th November 1990 from Herbert Smith to Alsop Wilkinson, it is stated:

"....We are instructed to confirm that CWR's immunity from prosecution does not contain any reference to his conditions of detention, there was no "deal" done with Charles Warwick Reid of this kind as Mr. Taylor's affidavit seeks to imply."

34. I fail to see now it can be said that the immunities are necessary documents for the purposes of this application for Judicial Review.

35. As to the correspondence "leading up to the Order" or "relating to the Order", I fail to see what this can add to the argument that the Order does not come within the meaning and intendment of Section 12(2). Further documents after the date of the Order would be wholly irrelevant and unnecessary.

36. If I was against him on this class of documents, which I am not Mr. Huggins would himself wish to argue that this class was covered by P.I.I.

37. As to the correspondence relating to the immunities Mr. Huggins submits that this is irrelevant to the issues in this application. Further, Mr. Sissons has dealt with the point. I agree that this class of documents cannot be considered necessary for the application.

38. As to correspondence relating to the undertakings this is covered by Herbert Smith's letter dated 8th November 1990 in which they stated on instructions:

"The undertakings given by the ICAC to the Commissioner of Correctional Services referred to in the Section 12(2) Order were the only undertakings given by the ICAC in relation to the Order and were in precisely the same terd set out on the face of the Order."

39. This answer disposes of this class but in any event. I would not consider such documents necessary even if they did exist.

40. As to the documents relating to the surrender moneys Mr Huggins submits that they are irrelevant and in any event there is no affidavit showing why or now they are said to be relevant. Further they are potentially post 5th July 1990 and thus not even relevant let alone necessary. I agree.

41. As to the written record of REID's movements this has been covered now by Mr. Huggins undertaking and Herbert Smith's letter dated 15th November, as well as by the Admissions made by 2nd Respondent.

42. Finally as to REID's statements save those already supplied Mr. Huggins submits they are irrelevant and potentially post 5th July 1990. I agree that they are irrelevant and not necessary for this application. Mr. Huggins accepts that in due course all unused materials will have to be considered in the light of the guidelines laid down in respect to them. But the first trial is some way off and it is too soon to consider that issue. Further this is an ongoing investigation and I have noted that there are some blank pages and blanking out of part of REID's statements that have been supplied. Mr. Sissons states in paragraph 9 of his affidavit that investigations are continuing in relation to allegations made by REID in relation to other persons. Mr. Huggins added that the Applicant already has all REID's statements about him in relation to the charges and any request to go further would also be met by claim for P.I.I. if his statements were considered relevant and necessary. In my judgment they are neither relevant nor necessary in relation to the issues in this application for Judicial Review.

43. For all the reasons set out above I have no hesitation in concluding that none of the documents sought against any of the Respondents (save the Order which has already been supplied) are necessary for disposing fairly of this matter or for saving costs. In coming to that conclusion, I take into account that pursuant to Mr Huggins undertaking, Herbert Smith has supplied the necessary information relating to the detention of REID and his movements. Further, Mr. Li has conceded that ICAC did have communications with the Governor prior to the making of the Order.

44. Had I thought that the production of these documents or some of them were necessary for fairly disposing of this matter I would have had to go on and consider the claims to P.I.I. However, I am wholly satisfied that the arguments based on Section 12(2) which Mr. McCoy was good enough to rehearse with me can be made on the basis of the material now before the court without the need for further discovery. The point is not complicated and it is either a good point or a bad point. None of the documents sought in this application for specific discovery are going to advance that point one iota. Section 12(2) either covers a detention such as this or it does not. I am further not persuaded that any of these documents will add at anything to the Applicant's arguments on locus standi.

P.I.I.

45. In the light of my judgment it is not strictly necessary for me to go into the question of P.I.I. because I have held that the Applicant fails on the threshold of necessity. However it may help if I say this on P.I.I. I am not persuaded that the Financial Secretary's certificate claiming P.I.I. is wide of the mark or overstated. I accept that the court is not bound by the certificate, but I accept Mr. Li's submission that the certificate is cogent.

46. Corruption is a serious matter and it is very much in the public interest that investigations into corruption be not hampered and that the guilty be brought to justice. Some of the documents sought are at the highest level in Government and are to be protected as a class. It is essential that materials relating to ongoing criminal investigations should not be disclosed.

47. The certificate being in my judgment cogent I should have proceeded to carry out the balancing exercise without the benefit of looking at these documents Carrying out the exercise, I have not the slightest doubt that the balance comes down heavily in favour of the public interest in not ordering production and I would have so ruled.

48. I was referred to many of the leading cases on the subject to P.I.I. and I intend no disrespect to counsel by not referring to the passages which they helprully cited to me. Had I been satisfied that the documents were necessary I would have gone into the issue of P.I.I. in more detail, but I do not wish to overburden this already lengthy interlocutory judgment.

Conclusions

49. I. therefore, propose to dismiss this summons for specific discovery. It is conceded that if this summons fails then the same fate should be accorded to the summons for interrogatories which I also dismiss. I will hear counsel on the question of costs and I will also hear them as to what further directions (if any) are required in order to ensure that this application for Judicial Review comes on at the earliest possible opportunity.