CHAN MEI YIU, PADDY AND OTHERS v. SECRETARY FOR JUSTICE

CACV 260/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 2007

(ON APPEAL FROM HCMP 1175 OF 2007)

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REASONS FOR JUDGMENT

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Hon Cheung JA :

Background

1. On 16 January 2007 Magistrate William Ng issued three search warrants under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) (‘MLAO’) to enable the Hong Kong police to search the respective addresses of a registered company, Harmony Gold Limited (‘Harmony Gold’) and two of its directors and shareholders, namely, Chan Mei Yiu, Paddy (‘Paddy Chan’) and Katherine Hsu.  The Italian Republic had requested the Secretary for Justice (‘SJ’) of the Hong Kong Special Administrative Region for assistance under the terms of the MLAO.  The application by the Hong Kong Police for search warrants was made pursuant to the request.  The search warrants were obtained in order to secure documents for use in a criminal trial presently underway in Italy. 

2. On 18 January 2007 the search warrants were executed.  Harmony Gold, Paddy Chan and others (‘the applicants’) obtained leave to apply for judicial review to challenge the following decision, namely,

1) the decision of the SJ to accept the request for assistance of the Italian government;

2) the decision of the Police to apply for the warrants;

3) the decision of the Magistrate to issue the search warrants; and

4) the execution of the search warrants.

3. It is the plaintiffs’ case that the search warrants only authorised a search of the addresses by the Hong Kong Police and not by the four Italian nationals (i.e. two prosecutors and two investigative accountants from Italy) who were present and took part in and conducted the searches.  The four Italians are involved in the criminal trial in Italy.

Letter of request

4. The Hong Kong police officers who were involved with the search had filed affidavit evidence in the judicial review proceedings.  The applicants claimed that the police officers had, however, not deposed or agreed to or conceded the matters that the applicants had described in the affirmations concerning the role played by the four Italians. 

5. The four Italians have filed no affirmations in the judicial review proceedings.  In order to cross-examine the Italians, the applicants have issued an originating summons (they are described as the plaintiffs in the title.  For ease of reference I will continue to describe them as applicants) against the SJ under Order 39, Rule 2 of the Rules of the High Court (‘RHC’) asking that a letter of request be issued to the judicial authority of the Republic of Italy for the examination of the four Italians in Italy. 

Challenge on jurisdiction

6. The application was heard before Saunders J and was opposed by the SJ.  The SJ had also issued a summons before Saunders J to dismiss the application for a letter of request.  The Judge held that he had the jurisdiction to grant the letter of request but adjourned the issue of whether he should grant the order to a hearing in April 2008.  The SJ appealed against the decision of the Judge on jurisdiction which this Court dismissed.  I now give my reasons. 

The case for the Secretary for Justice

7. The grounds of opposition to the letter of request before the Judge were that the judicial review proceedings are criminal causes or matters and any application for a letter of request for the purpose of the judicial review proceedings is a criminal cause or matter.  The application for a letter of request was issued pursuant to Order 39 which does not apply to a criminal cause or matter and accordingly the High Court has no jurisdiction to grant the letter of request.  At the hearing before the Judge the summons was orally amended to add ‘if the court has jurisdiction, it has no power to exercise it in these proceedings’. 

Judicial review applies to both civil and criminal matters

8. The starting point in the inquiry is that judicial review applies to both civil and criminal matters : see paragraph 53/14/2 of Hong Kong Civil Procedure 2008 (‘HKCP 2008’).  This is too well established to require detailed elaboration.  Section 21I of the High Court Ordinance (‘HCO’) (Cap. 4) which confers jurisdiction on the Court of First Instance to continue to make orders of mandamus, prohibition and certiorari makes no distinction between civil and criminal cases.  Neither is there any such distinction under section 21K of the HCO which establishes the procedure for judicial review.  The procedure is now governed by Order 53 of the Rules of the High Court (‘RHC’) (Cap. 4).

9. The fact that judicial review applies to both civil and criminal cases is expressly confirmed by section 14A of the HCO which provides that

‘An appeal shall lie to the Court of Appeal from a judgment or order of the Court of First Instance given or made on an application for judicial review referred to in section 21K(1) and relating to a criminal cause or matter.’

10. The parties in this appeal and below accepted that the present judicial review is related to a criminal cause or matter.

Order 1 Rule 2(1) and (3)

11. The applicants’ application for a letter of request is made under the ambit of the judicial review.  In order to determine whether they can make such an application, one has to turn to the RHC to see if there is any restriction imposed for invoking Order 39 which is one of the rules of the RHC.  Order 1, Rule 2(1) expressly provides that

‘ Subject to the following provisions of this rule, these rules shall have effect in relation to all proceedings in the High Court.’

12. Rule 2(3), however, further provides that :

‘ These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 53, Order 59, Order 62, Order 70, Order 115, Order 116, Order 117, Order 118 or Order 119 applies.’

13. Although Rule 2(3) expressly excludes the application of the rules in relation to any criminal proceedings, an exception is provided, namely, ‘criminal proceedings to which Order 53 applies’.

14. If the term ‘criminal proceedings to which Order 53 applies’ in Rule 2(3) means ‘judicial review of a criminal cause or matter’, then one would have thought that, on the face of it, since the application for the letter of request is made under the ambit of a judicial review instituted under Order 53 in respect of a criminal cause or matter, the situation is covered by the terms of Rule 2(3) and that the applicants are able to invoke Order 39 for the letter of request application.  In other words the proceedings come within the excepted part of Rule 2(3).

15. Mr. McCoy S.C. who appeared with Mr. Steven Kwan as counsel for the applicants had originally argued that the judicial review although relating to a criminal cause or matter is not a criminal proceeding but this point was later abandoned.

16. Li CJ in P v. The Commissioner of the Independent Commission against Corruption (FACC 11/2006, Decision dated 31 May 2007), after referring to Rules 2(1) and (3) stated that

‘ The intent is that a particular rule should apply to such an application if and in so far as the rule in question is appropriate for use in the application.’

Is Order 39 an appropriate rule?

17. It is then necessary to consider whether Order 39 is appropriate for use in the judicial review proceedings.  The applicants said that it is appropriate because the letter of request whose procedural requirement is set out in Order 39 is the only means by which they can obtain the evidence of the Italians and such evidence is needed to advance their case on the judicial review.  There is no other means for them to obtain a letter of request.

The legislation

18. There are two Hong Kong ordinances which deal with letter of requests, namely the MLAO and the Evidence Ordinance (‘EO’) (Cap. 8), but they are not available to be used by the applicants.

19. The MLAO only allows the SJ to make a letter of request to an authority outside Hong Kong for search and seizure in a criminal matter involving a Hong Kong serious offence.

20. Section 77E of the EO deals with the issue of letter of request to obtain evidence in other jurisdictions for the use in criminal proceedings in Hong Kong.  Section 77E(2) enables the SJ or a person charged with a criminal offence to apply for a letter of request to be issued to an outside authority to assist in obtaining evidence for the purpose of the criminal proceeding.  The applicants are not persons charged with a criminal offence and therefore they cannot invoke section 77E.

My view

21. Mr. Grossman S.C. who appeared with Ms Sit, as counsel for the SJ, argued that it was precisely because of the provisions of these two Ordinances that the applicants could not invoke the jurisdiction to apply for a letter of request in a judicial review dealing with a criminal cause or matter.

22. I do not agree with this submission.  In my view the applicants are not invoking the jurisdiction to issue a letter of request strictly within the confines of a criminal proceeding.  If they were, then any such right can only be exercised under the MLAO and EO.  Their right is clearly not covered by the provisions of the MLAO and EO.  My view is that although the judicial review is in respect of a criminal cause or matter, it is not a ‘criminal proceeding’ in the technical sense.  If it were, that would restrict the right of a person who is not charged with a criminal offence to apply for a letter of request.  The challenge by the judicial review is directed towards to a criminal cause or matter but this will not turn it into a criminal proceeding.  Certainly no authority has been cited to support the contrary view.

23. Furthermore what is more fundamental is that a letter of request is invoked under the inherent jurisdiction of the Court and Order 39 merely prescribes the procedure for invoking the jurisdiction.  Sir Donald Nicholls V.C. (as he then was) stated in Panayiotou and others v. Sony Music Entertainment (U.K.) Ltd [1994] 1 Ch. 142 that,

‘The jurisdiction of the High Court to make a request to the court of another country for assistance in obtaining evidence does not derive from statute, or even from the Rules of the Supreme Court.  These rules regulate and prescribe “the practice and procedure” to be followed in the Supreme Court: section 84 of the Supreme Court Act 1981.  They regulate the exercise by the court of its jurisdiction; they cannot extend the court’s jurisdiction or confer a jurisdiction which, in the absence of rules, the court would otherwise lack.  In my view the court’s power to issue a letter of request stems from the jurisdiction inherent in the court.  Inherent in the court is power to do those acts which the court needs must have to maintain its character as a court of justice: see Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd. [1981] A.C. 909, 977.  It is important to keep in mind that when a letter of request is issued, the English court is doing no more than make a request to a foreign court for assistance.  It is not making an order.  It is not making an order addressed to a foreign court or to witnesses.  Further, the subject matter on which assistance is sought, the obtaining of evidence, is one over which the court has long exercised close control.  This is a subject peculiarly within the court’s own control.  Thus, the process by which the court compels the attendance of witnesses, or compels the production of documents as evidence, is a process whose source is the court’s own inherent powers R.S.C., Ord. 38, rr. 14 to 19 regulate the form of subpoenas, and the way they should be issued and served and so forth; those rules do not create the jurisdiction.’

24. That the Courts of Hong Kong clearly possess this inherent jurisdiction is expressly recognised in HKSAR v. Lam Kwong Wai and Another (2006) 9 HKCFAR 574 where Sir Anthony Mason NPJ stated at 608 that :

‘69.   In common law systems, courts enjoy wide-ranging inherent and implied powers and there is no reason to think that the courts of the HKSAR stand as an exception to the generality of this statement.  The Basic Law recognizes that the courts of the Region (including this Court) are equipped with powers to grant appropriate remedies.  In this respect, there is a distinction between inherent jurisdiction and jurisdiction by implication.  When a statute sets up a court with a jurisdiction, it acquires by implication from the statute all powers necessary for its exercise (Grassby v The Queen (1989)168 CLR 1 at pp.16─17, per Dawson J).  As the courts are established by the Basic Law, the powers which they possess and the remedies which they may grant should be characterized primarily as implied, though some powers to be implied under the Basic Law may be ultimately traced back to the common law.

70.  The grant of judicial power and, for that matter, the investing of jurisdiction in a court, carry with them all those powers that are necessary to make effective the exercise of judicial power and jurisdiction so granted. “Necessary”, in this context, means “reasonably required” (PCCW-HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at p.357G─H, per Bokhary PJ).  These powers will include power to grant and employ such remedies as may be appropriate.  In Connelly v DPP [1964] AC 1254, Lord Morris of Borth-y-Gest said (at p.1301):

… a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.

His Lordship referred to these powers as “inherent”.  The generality of that statement may require qualification, though the power in question in that case, may well have been inherent.

25. I do not consider that the terms of the MLAO and EO intend to exclude the operation of the inherent jurisdiction.  Both of them are related to criminal matters but as pointed out earlier, it is not right to define a judicial review as a criminal matter.  Hunsworth

26. The SJ relied on a statement by Jerome Chan J in Hunsworth v. Registrar of the Supreme Court and Another [1996] 2 HKLR 446 at 451 that :

‘Applications for an order to issue a letter of request for criminal proceedings pursuant to s.77E are to be distinguished from similar applications in civil proceedings under O.39 rr.1-3.  Order 39 deals specifically with similar applications for an order to issue a letter of request for civil proceedings......’

27. In Hunsworth the Attorney General of Hong Kong sought an order that a letter of request was to be issued to the Macau Judiciary for assistance in taking evidence to assist in the investigation of criminal activities which might lead to criminal proceedings in Hong Kong. 

28. This application was made by an ex parte originating summons.  The summons referred to a draft order said to be annexed to the summons.  The applicant applied for a copy of the summons pursuant to Order 63, rule 4(1)(a) of the Rules of Supreme Court.  The Registrar provided a copy of the summons but refused to allow inspection or taking a copy of the draft order.  The draft order in fact was not attached to the summons but filed separately together with the summons.  The applicant applied for judicial review of the decision of the Registrar. 

29. Jerome Chan J held that Order 63, rule 4(1) which enables a person to inspect and obtain a copy of any writ of summons or other originating process cannot be invoked by the applicant because the application under section 77E constitutes a criminal proceedings and Order 63, rule 4(1) cannot apply by virtue of Order 1, Rule 2(3).

30. In my view what Jerome Chan J said in Hunsworth will not assist the SJ at all.  In the normal course of events, in a criminal proceeding, the applicant for a letter of request must resort to section 77E while a party in a civil action will have to rely on the procedure in Order 39 in making such an application.  If the section 77E route is taken, on the terms of Rule 2(3) the provisions of the RHC cannot be invoked for the purpose of inspecting the contents of the documents lodged in the application, other than the writ of summons and the originating summons. 

31. This, however, does not mean that where, as in the present case, the applicants have initiated the judicial review relating to a criminal cause or matter, they cannot invoke Order 39.  To hold otherwise will be contrary to the terms of Rule 2(3).

Jurisdiction exists

32. In my view jurisdiction exists for the applicants to apply for the letter of request.  Whether the Court should exercise the discretion in their favour is a matter that remains to be decided by the Judge.  All I wish to say about Mr. Grossman’s submission that there is already available the evidence of the Hong Kong Police and calling the four Italians may not advance the applicants’ case is that this is a matter that goes to the issue of discretion and not jurisdiction.

Conclusion

33. Accordingly I will dismiss the appeal.

DECISION ON COSTS

34. The SJ failed in the appeal and he has to bear the costs of the appeal. 

35. The applicants had issued a respondent’s notice seeking to affirm the judgment on the ground that the judicial review is not a criminal proceeding and hence the exclusion in Rule 2(3) does not apply.  This point was abandoned in the course of Mr. McCoy’s submissions.  Mr. Grossman asked for the costs of the respondent’s notice.

36. The principle is that a respondent who has given a respondent’s notice is generally in the same position as to costs as though he had presented a cross-appeal.  Appeal and cross-appeal are generally treated as separate proceedings for the purpose of taxation if they raise distinct issues, and the costs of appeal and cross-appeal should be separately taxed, and the amount allowed set off against each other, and the balance paid : see paragraph 59/6/5 HKCP 2008.

37. However as the Court of Final Appeal pointed out in Common Luck Investment Ltd. v. Director of Legal Aid [2002] 3 HKLRD 81, where a respondent’s notice was filed to ask the Court to affirm the trial court’s order albeit on additional or alternative grounds, the situation was not that of a cross-appeal.

38. In my view the appropriate order is not to order separate taxation but to order the SJ to pay 80% of the applicants’ costs of the appeal.

Hon Yuen JA:

39. I agree with the order proposed by Cheung JA.  The short issue in this appeal is whether the inherent jurisdiction of the court to issue a letter of request in aid of judicial review proceedings in a criminal cause or matter has been ousted by the provisions of the MLAO and section 77E of the Evidence Ordinance, such that a letter of request can only be issued in the situations set out in those ordinances. 

40. An ouster or restriction of the court’s inherent jurisdiction can only be imposed by express language or necessary implication.  I do not see either clear language or any necessary implication in those Ordinances.  In my view the provisions in these Ordinances are permissive - they provide the procedure for the issue of a letter of request in the situations set out, where otherwise there is no procedure for the issue of a letter of request.  But where judicial review proceedings have been issued in a criminal cause or matter, the exception in Rule 2(3) of the RHC applies the Rules of the High Court to a criminal cause or matter, and so a letter of request can be issued under Order 39.