Y KHAN v. P.G. O'DEA AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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RULING

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1. The plaintiff, in this case, Mr. Khan has issued two subpoenas. The first is directed to Mr. Harknett, the Director of Operations at the Independent Commission Against Corruption. It asks him to give evidence at the trial, and that part of the subpoena is not being challenged. It also asks him to produce a large number of documents. The request can be summarised, I think, like this: he is being asked to produce all the documents in the possession of ICAO which came into existence as a consequence of the plaintiff's two complaints made on the 7th and 17th July 1980. The request covers all their files, correspondence, documents, tapes, and statements from a number of named witnesses. That is the first subpoena.

2. The second is directed to Sir S.Y. Chung as Chairman of what is called the UMELCO ICAC Complaints Committee. This again asks for a large number of documents. First of all it asks for documents which came into existence consequent, as I understand it, upon the plaintiff's complaint to that Committee in November 1980. But it goes in fact very much wider than that because one of the requests is for "all investigations, files, minutes, tapes carried out by your committee from the 25th November 1980 to 25th November 1984". I emphasise the request relates to "all investigations".

3. Those subpoenas are challenged by the recipients. I am invited to set them both aside on two grounds. The first ground can be described as relevance/oppression and the second, public interest immunity.

4. I take relevance first. The claims made in this action consist of claims in defamation. There are three charges of libel and two of slander. They relate to the period September-November 1980. The issues on publication on the pleadings are very narrow. It rather looks as there is going to be no issue at all as to what was said on the occasions of the alleged slanders, and the publications of the alleged libels are not challenged.

5. The principal matters raised upon the pleadings are first, whether the words were defamatory; secondly whether they were all spoken on occasions of qualified privilege and thirdly whether they were in fact true.

6. Now the documents requested by these subpoenas are on any view of fringe relevance to those issues. Many of them are subsequent to the relevant period. The issue in the action is not whether the plaintiff's complaints to ICAC were true; nor is it whether these complaints were sensibly, properly or unintelligently investigated by ICAC. The only real issue of fact which seems to arise connected with ICAC is going to be whether the defendants can truthfully say that they were told by ICAC; one, that the complaints had been investigated and two, that they had been found to be unsubstantiated. And of course it is quite obvious that the other investigations conducted by the UMELCO Committee can have no relevance at all. But at the same time, it is difficult, I think, to say on the material before me, that there is no possible relevance in any of these documents. There may be something relevant in the files before November 1980. There may be something material in the statements taken by ICAC from two of the contestants, namely the plaintiff himself and the 2nd defendant.

7. I am therefore for the purposes of this application going to assume that the possibility of relevance is sufficient in this case to justify a request for some of the documents, and upon that basis go on to consider the second ground of objection which is the public interest immunity.

8. Now there are apparently four files in all, and it is these four files which contain anything which might be material to this suit.

9. The first is the file of the UMELCO Complaints Committee. The second is the investigation file opened when Mr. Khan made his initial, complaint. The third is the file kept in Mr. Khan's name personally. The fourth is a file of the ICAC Complaints Committee. I have before me a certificate of the Chief Secretary dated 5th February of this year claiming public interest immunity for all documents in those four files.

10. There has been in recent years a considerable development of the law in this field in the U.K. There are a number of recent authorities starting (I think, it is fair to say) with Conway v. Rimmer (1968) A.C. 910. The most recent was reported in the Times Newspaper only last week. It is Conerney v. Jacklin, The Times Newspaper, 2nd February 1985, in the Court of Appeal.

11. In order to understand the issues which have been joined between the parties here, I think it is necessary to refer to three of those decisions. The first is Reg. v. Lewes Justices (1973) A.C. 388. In the speech of Lord Reid, I think the points to be noted particularly are these. First he emphasises that if production is to be withheld in these sort of circumstances "it must be on grounds which have nothing to do with the merits or demerits of the appellant!" p.400. I take that to mean that this is totally separate from any issue of relevance on the document.

12. Secondly, he referred in that case to the Board's statutory duties. I should explain that objection was there being taken to the production of a letter which had been sent by the Chief Constable of Sussex to the Gaming Board and which was obviously critical of the character of the appellant. In consequence he had instituted proceedings for criminal libel founded upon that letter. Lord Reid says the objection "is based on the fact that the Board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them". Later on, he says: "So it appears to me that, if there is not to be a very serious danger of the Board being deprived of information essential for the proper performance of that difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant'. The significance of those two citations to my mind is first that Lord Reid is pointing to the statutory obligations which the recipient of the documents is required to carry out and secondly to the need for protection of the documents as a class if they are found to require immunity. He goes on: "We must then balance that fact against the public interest that the course of justice should not be impeded by the withholding of evidence" p.401. That is the balancing judgment which the court is required to perform on all these occasions.

13. At the opening of the speech of Lord Simon one finds this reference to what was once described as "Crown privilege". "It refers to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public interest. It is true that the public interest which demands that evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible assess to all relevant material. (Marks v. Beyfus (1890) 25 Q.B.D. 494, Conway v. Rimmer (1968) A.C. 910). But once the former public interest is held to out weigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege that may be waived by the Crown or by anyone else" p. 407.

14. Lord Salmon at page 412 summarises the principle in two sentences in this way: "The principle is that whenever it is clearly contrary to the public interest for the documents or information to be disclosed then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity".

15. The next case I wish to refer to is Neilson v. Laugharne (1981) Q.B. 736. The leading judgment of Lord Denning M.R. in that case conveniently summarises the developments of the law both before and after 1973. The judgment which I find most helpful for present purposes is that of Oliver L.J. First he says this: "What, as it seems to me, one has to look at is the likely consequences of a general right to disclosure in civil litigation in the context of the statutory purpose sought to be achieved by the section", (of the relevant Act of Parliament) "and to ask, first, whether these likely consequences support the contention that such disclosure would be contrary to the public interest; and secondly if so whether that interest is a consideration of such importance as to outweigh the public interest in disclosure" p.751. He is echoing what Lord Reid had said pointing to the statutory purpose. He puts the test again in a sentence at page 752H: "The question therefore must be this: Will liability to disclosure in civil proceedings of statements taken in the course of such an enquiry adversely affect the attainment of the legislatures purpose". He goes on at page 753G: "If public policy prevents disclosure, it prevents it, in my judgment, in all circumstances except to establish innocence in criminal proceedings (my emphasis). It is not like legal professional privilege which is the personal right of the party entitled to it and can be waived". He cites in support of that proposition the two passages that I have just read from the speeches of Lord Simon and Lord Salmon in Reg. v. Lewes JJS. He concludes in the context of that case: "I think that there is a very real danger that the prospect of disclosure on discovery of material gathered in the course of such an inquiry will inhibit the proper conduct of the inquiry and thus frustrate the purpose of the legislature" p.754G.

16. The next case to which I am going to make reference is Hehir v. Commissioner of Metropolitan Police (1982) 2 All E.R. 335. The question which arose in that case was whether the Commissioner could waive the privilege. What happened was that certain statements had been given in the course of a police inquiry, which on the authority of Neilson were immune from production. Civil proceedings then took place in the course of which the same complainant gave a rather different account to that which he had given in the earlier statement. This was too much for counsel who wanted to cross-examine him on the statement. He submitted that the Metropolitan Police Commissioner could waive the privilege and the judge ruled in his favour. The Court of Appeal said "NO", that this was not an immunity which the Commissioner could waive. They pointed out that this could have a number of consequences which were perhaps not entirely desirable but Lawton L.J. says this at page 340e: "If the immunity exists in law for the protection of the public interest what right has the defendant to say whether it should be waived in his own interest". Lawton L.J. could see only one answer to that, and so do I. So that case is plain authority for the proposition that the recipient of the document cannot waive this immunity. It left open the question whether the maker of the document might in certain circumstances be able to do so. That means here that the Commissioner could not waive any immunity.

17. Finally I note that in Conerney v. Jacklin a distinction was drawn in the Court of Appeal between statements given in the course of a police inquiry, which had been the subject matter of the last two cases I referred to, and the initial complaint itself. The initial complaint itself was held not to be immune.

18. It is against that background that I turn to the legislative purpose very much with Oliver L.J.'s test in mind. I turn first to the Independent Commission Against Corruption Ordinance, Cap. 204. The first thing I think to note there is section 5. I will not read it, but the effect of it is that the Commissioner is appointed by the Governor, is independent of any body but the Governor, and answerable only to the Governor. Now this to my mind fully supports what was submitted to me by Mr. Osborne about the function of the UMELCO Committee. It is there to stand between the Commissioner and the Governor in a filtering and advisory capacity. Whether the ombudsman analogy is the closest as Mr. Osborne suggests, or whether the documents can be allied to cabinet minutes is immaterial. I think there is substance in both suggestions and both strongly point to the essential need for secrecy in their deliberations.

19. The second material provision in this Ordinance is section 12 which says: "It shall be the duty of the Commissioner, on behalf of the Governor, to

20. Two points on that. First the Commissioner is under a statutory duty to investigate where "practicable". This means that he may well be sent on a number of false trails by people with strange complaints. He may well find himself spending time pursuing false leads. It would grossly unfair to a person whose affairs had been investigated on suspicion like that, to have the whole story of that investigation revealed in subsequent civil proceeding. Indeed it may be said that the more Draconian the powers given to investigate in circumstances like these, the greater the need for confidentiality.

21. Secondly this section points to one of the primary purposes of this Commission, which is the enforcement of the Prevention of Bribery Ordinance. If one turns to that, which is Cap. 201, there are three sections which are particularly relevant. The first is section 14 which underlines the extensive nature of the Commissioners power. Then section 30 which makes it a criminal offence to reveal without "lawful authority or reasonably excuse" that any investigation is taking place. Lastly, section 30A which provides that "no witness in any civil or criminal proceedings shall be obliged (inter alia) to disclose the name or address of any informer who has given information to the Commissioner or of any person who has assisted the Commissioner in any way with respect to an offence". It goes on to deal with discovery in contents context rather than class context.

22. Taking those provisions together they are I think a strong pointer to an express statutory intent that the ICAC should be conducting its affairs in circumstances of confidentiality.

23. This is borne out by the facts put before me in the certificate of the Chief Secretary, who relies upon the reasons set out in the affaidavits of Mr. Sargant and Mr. Harknett. Mr. Sargant, who is the secretary of the UMELCO Committee, really says that a Committee like this simply has to operate in circumstances of confidentiality.

24. Mr. Harknett sets out a large number of reasons why confidentiality is in his view essential to the proper conduct of the affairs of the ICAC. It is sufficient to mention just a few. First that without it, he does not think he will get full and frank information from anybody, not least because he cannot give the assurance of confidentiality which it is their present practice to give. Secondly only this prevents leakages of information which were bound to frustrate inquiries. This simply echoes section 30. Thirdly it prevents destruction of evidence in advance before ICAO can reach it. Fourthly it prevents any impediment being placed in the way of future inquiries. Fifthly it prevents revelation of their investigatory methods. Finally, but by no means least it prevents witnesses being got at, or subjected to reprisals, for what they have said to the Commissioner.

25. I do not need to labour all these points because they are expressly accepted by the plaintiff himself. He totally agreed with the need for confidentiality in these sort of circumstances. His point was something quite different. His complaint is that ICAC was not confidential. His complaint is that in the material months of the summer of 1980 it was leaking like a sieve, and that all sorts of information was improperly being transmitted by the ICAC to members of the Kowloon Cricket Club. He has read to me the transcripts of two taped telephone conversations which will no doubt be the subject-matter of considerable investigation in the course of the trial.

26. Now it is quite impossible, and indeed unnecessary, for me to consider whether Mr. Khan's complaints are correct in fact, or whether the ICAC can advance a case of reasonable excuse for what they have done. For present purposes I am quite prepared to assume that Mr. Khan is totally correct. Because his difficulty to my mind is that even if he is correct in fact, the point is ineffective in law. That is why I have read particularly certain passages from the authorities. They seem to me to show that this is a public right; what the whole object of the exercise is to protect the public interest; that this is not a right which is vested in any one person; and for that reason it cannot be waived by the recipient of the document i.e. the Commissioner. Now it seems to me necessary to follow, that if the Commissioner cannot waive this right, it cannot possibly be lost by incompetence, indiscretion, or illegality, in his office. It is there to protect the public. If there has been any misconduct in the office that is the matter between the law and the individual. It cannot adversely affect the public interest.

27. The facts here seem to me infinitely stronger than those arising on police inquiries in the U.K. which was the subject matter of Neilson v. Laugharne. It seems to me perfectly plain that the ICAC and the UMELCO Committee can only start to perform their proper functions and give effect to the statutory purposes set out in and clearly discernible from the two Ordinances that I have mentioned, if they can act in complete confidence. The suggestion that their files are on risk of discovery in civil proceeding must in my judgment be put aside completely. It is necessarily follows that I must set aside in totality the subpoena directed to Sir S.Y. Chung; and likewise set aside the duces tecum aspects of the subpoena directed to Mr. Harknett. That leaves him free to give oral evidence but under no obligation to produce any of the documents.