LORRAIN ESME OSMAN v. ATTORNEY GENERAL AND ANOTHER

--------------

-----------------

JUDGMENT

-----------------

Cons, V.-P.:

1. In 1985, from April to November, officers of the Independent Commission Against Corruption were engaged in investigating allegations of fraud against directors and senior officers of the Bumiputra Malaysia Finance Limited. Towards the end of the latter month a decision was made to apply for warrants of arrest against three of those persons believed to be in the United Kingdom and against others who were known to be in Hong Kong. To avoid the possibility that the arrest of some could alert the others, thereby enabling them to abscond, it was intended to effect the arrest of all, so far as possible, at the same time. For the same reason the authorities were anxious that the fact of the issue of the warrants should be known to as few persons as possible.

2. Accordingly, on the morning of the 30th, senior Crown Counsel attached to the Commercial Crimes Unit of the Attorney General's Chambers invited a magistrate, Mr. Hill, to attend at the Attorney's Chambers in United Centre in Central district so that the applications could there be made in secret. Understanding that there was in addition some question of urgency, the Magistrate agreed to the procedure suggested rather than wait, as would otherwise have been normal for Counsel to attend upon him at Western Magistracy.

3. On arrival at United Centre the Magistrate was shown to a room on the 31st floor in which were present several Crown Counsel and officers of the ICAC. Mr. Robey a Principal Investigator of the ICAC, laid information against the suspects on oath, which the Magistrate then perused. While he was dong so, - which took him some two hours-be sent for the official seal of the Magistracy which he had neglected to bring with him in the first instance. Then being satisfied that warrants of arrest were justified, he issued them as applied for including one against Lorrain Esme Osman, the Appellant in these proceedings. As a result Mr. Osman was subsequently arrested in England where we understand he is still detained under the Fugitive Offenders Act.

4. At the request of the ICAC, and again with a view to secrecy, all the copy documents were left in the custody of the ICAC, instead of being registered in Western Magistracy, as would normally have been the immediate case, until some six weeks later, During that period there was thus within the court system no record whatever of what had taker place.

5. Although Mr. Osman, and those advising him, were aware that the warrant had been issued on the 30th November 1985 the full details of what had taken place that day did not become known to them until late last year. No time was then lost in seeking from the High Court leave to bring an application for judicial review and Mr. Osman asked, as he still does by his Amended Notice of Appeal, -

"     FOR AN ORDER of Certiorari to quash the Warrant of Arrest issued by the 2nd Respondent against the Applicant in the Attorney General's Chambers on 30th November, 1985.

    AND FOR A ...(illegible) that the presentation by Mr. Anthony Edmund Robey of an information against the Applicant to the 2nd Respondent in the Attorney General's Chambers on 30th November, 1985 did not properly amount to the laying of an information befor a magistrate for the purpose of commencing criminal proceedings against the Applicant."

6. Leave was granted by Barnes J. on the 9th November. The application came before Jones J. on the 25th and 26th January this year, who then had the benefit of affidavits from three officers of the ICAC and from Mr. Hill setting out the history as I have briefly recounted it, and one from a Mr. Cohen, the solicitor for the Appellant, dealing with the normal procedures in Western Magistracy. On the 27th Jaruary Jones J. delivered his judgment refusing both reliefs. Mr. Osman now appeals.

7. Before Jones J. The Appellant sought to justify an order of certiorari no the grounds of bias. It was not put as actual bias, there being no suggestion that Mr. Hill was actively prejudiced in any way against Mr. Osman. It was put instead as what might conveniently He termed "apparent bias", i.e. "the circumstances established in this case are such that a fair-minded person would reasonably suspect that the magistrate might not make his judicial decision with a fair and unprejudiced mind".

8. That approach is still pursued, the cuotation above being taken from the Amended Notice of Appeal. The argument for the declaration however has charged. Below it was put on the basis of delay in lodging the information in Western Magistracy. Now it is suggested that Mr. Hill, having compromised his judicial independence by attending upon the Attorney General's Chambers, from that moment ceased to act effectively as a magistrate, with the result that his reception of the information against Mr. Osman was no more valid than his decision to issue the warrant. The remedy of declaration is to that extent dependant upon the remedy of certiorari apparent bias is made out the declaration must be refused. The converse however does not necessarily follow.

9. One of the cardinal principles of the rules of natural justice is that an accused has a right to be tried by an impartial tribunal. Another is that not only must justice in fact be done, but that it must also manifestly be seen to be done. These lead to the position, as Lord Denning put it in Metropolitan Properties Co. (P.C.C.) Ltd. V. Lannon and Other [1969] 1 Q.P. 577 at p.599 -

"There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonalle people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking:' The judge was biased."

Or per Ackner L.J., more succinctly, in R. v. Liverpool City Justices, ex parte Topping [1983] 1 W.L.R. 119 at p. 123-

"    In our view, therefore, the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias."

How that should be judged appears shortly afterwards in the same judgment -

"Would 'a reasonable and fair-minded person sitting in court and' knowing all, the relevant facts have a 'reasonable suspicion that a fair trial for' the applicant 'was not possible'?"

10. In this jurisdiction magistrates are appointed by the Governor under Section 5(1) of the Magistrates Ordinance Cap. 227. To this end he is entitled to the benefit of the advice of the Judicial Services Commission, a body established in 1976 to advise him, inter alia. on "the filling of vacancies in judicial offices", which include that of magistrate: Section 6, Judicial Services Commission Ordinance, Cap. 92. The Commission's advice is not limited to initial appointment, for the vast majority of magistrates being appointed on contract terms, where a magistrate desires to continue in service, there is a further question of re-appointment to be considered every three years. The opinion of the Commission is also important to magistrates who might entertain the hope of appointment to a higher level within the Judiciary.

11. The Attorney Ceneral is an ex officio member of the Commission. Furthermore, as any resolution of the Commission is required to be the unanimous vote of the Chairman and every member who considers it, the Attorney has to that extent a power of veto over any particular magistrate. Although there has been elsewhere more forceful criticism of that situation, and to which our attention has been drawn as illustrative of contemporary thought, there has been no direct suggestion before us that magistrates are in fact influenced by a fear that they may offend the establishment and thus put their re-appointment in jeopardy. It has been put to us instead as a factual background against which the conduct in question should be scrutinised with more particular care. For my part I do not think it right to comment upon the composition of the Judicial Services Commission, or upon the way in which it is enjoined to come to its decisions. These are matters fur the legislature. I merely wish to say that my conclusion in the present instance would have been the same whether the Attorney General were a member of the Commission or not.

12. I should also mention that I do not accept the suggestion from the Crown that lesser standards may apply to proceedings which are brought ex parte. The absent party is at risk of being affected by the decision and is as much entitled to its being giver impartially as if he were present.

13. I accept that in the present instance secrecy was a matter of great concern to the prosecution. But secrecy could have been equally well maintained at the Magistrate's Chambers or in his own home. There was no need to attend the Attorney's Chambers. Nor was there need to leave all the documents in the case, the only written record of what had occurred, with the ICAC. No doubt registration in the normal way in the books of the magistracy would have soon let the cat out of the bag, but surely the magistrate could himself have kept them safely until advised that the need for secrecy no longer remained.

14. I am not inclined to accord much weight to the other matters on which reliance was placed. For the magistrate to make use of the staff of the ICAC or the Attorney General to collect the official seal from the magistracy seems to me to be neither here nor there; and failing to sign the copy warrants indicates no more than lack of care. But in my view the ease with which be acceded to the prosection's suggestions might well lead to a reasonable suspicion that he was unduly favourable to their cause. I do not for one moment suggest that he was I am confident that he reacted spontaneously to what at the time seemed reasonable courses to adopt in the unusual circumstances. Had he paused however, and asked himself, as suggested in Metropolitan Properties Co. (P.G.C.) Itd. V. Lannon, what his friends or colleagues would think about it, then on reflection he would, I think, have realised the full implications of what was being asked of him and would certairly have declined.

15. In the circumstances the warrant of arrest cannot be allowed to stand; I find no reason to go further. Mr. Hill did not at any stage cease to be a magistrate. The administration of an oath and the acceptance of the information are administrative acts in which judicial decision plays no part. The question of bias or apparent bais cannot therefore arise.

16. For these reasons I would allow the appeal to the extent of granting the order of granting the order of certiorari; I would refuse the declaration.

Kempster, JA :

17. Proceedings in respect of such indictable offences as those in which the appellant is named are commenced and a magistrate becomes entitled to exercise his statutory jurisdiction when an information is laid before him, wherever he may be at the time, pursuant to section 72 of the Magistrates Ordinance (Cap 227). As Lord Roskill remarked in Reg V Manchester Stipendiary Magistrate [1983] AC 328 at pp 342, 343 and 346

"...he laying of an information is a matter for the prosecution... The acts of delivery and receipt are ministerial... it is not necessary for the information to be personally received by a justice of the peace...".

It follows that in receiving an information the magistrate, being as in the instant case duly appointed, exercises no judicial function, makes no decision, exercises no discretion and has no scope for being fair or unfair. The rules of natural justice, including that relating to likelihood of bias, have no application and, as a corollary the acceptance of an information is not susceptible to judicial review [R v St Lawrence's, Hospital Statutory Visitors ex p Pritchard [1953] 1 WLR 1158 at p 1166 per Parker J] albeit a magistrate may be subject to, an order of mandamus if he the refuses to receive it Accordingly the application for the relief sought when the Notice of Appeal was, by leave, amended in the course of the hearing before us and which was the subject of only the most frugal argument is, in my opinion, misconceived. Perhaps that is why, as appears from his judgment, before Jones J it was contended on behalf of the appellant only that the information was not laid until lodged and filed in the court where the magistrate habitually sat. That argument was not pursued before us.

18. Insofar as this appeal seeks a declaration that the information presented to Mr. Hill in the Attorney General's Chambers on 30 November 1985 was not properly laid it must fail.

19. The main burden of the submissions advanced on behalf of the appellant centred upon his claim for an order of certiorari to quash the Warrant in the First Instance for his arrest signed, sealed and issued by the magistrate on 30 November 1985 upon the application of Mr. Robey of the ICAC after some two hours consideration of consents and the information; the latter by then verified on oath. It was submitted that for the magistrate to attend at the Attorney General's Chambers in order to discharge a judicial function, to send an emissary of the prosecuting authorities for his seal of office, the removal of which was thought unprecedented, and then to leave all the documents with the ICAC so that no record of what had transpired was available at the Magistracy until 14 January 1986 would have satisfied a notional reasonable onlooker that there was a real likelihood that he had shown bias in acceding to Mr. Robey's application.

20. I can say at once that in my view the adoption of this unusual procedure was not justified by necessity. For the reasons given by Cons V-P there was great need for security but this could readily have been afforded if Mr. Hill had deposited the documents in his own safe at the Magistracy.

21. The judge found that there was no real likelihood of bias; perhaps because the submission was, as it still is, made by reference to opinions expressed in the Hong Kong Law Journal and in the Far Eastern Economic Review to the effect that magistrates, looking for promotion or for the renewal of their contracts of employment, may feel loath to appear uncooperative towards those to whom the Attorney General, having a right of veto in the deliberations of the Judicial Services Commission, has delegated his responsibilities for the prosecution of offences. As to such, background the impartiality and fair-fame of the judiciary has been and is matter of legitimate public interest, particularly during the run-up to Hong Kong's metamorphosis into a Special Autonomous Region of, the People Republic of China. I did not find that any of the publications we were shown reflected upon the integrity of those actually holding the important public offices mentioned.

22. Sometimes opinions published in relation to the administration of justice may be thought expressive of public anxiety. In others they may be thought to have engendered it. Publications antecedent to 30 November 1985 may, therefore, have relevance to the intellectual climate in which the notional reasonable onlooker might he thought to have reacted had be been aware of what transpired on that date. The fact that there were similar publications subsequently may suggest that the concern earlier expressed was still felt. The editorials to parts of the Hong Kong Law Journal for 1976 and 1983, the first written by a member of the Bar who has since been appointed to the District Court Bench and the second by one of Her Majesty's Counsel, came into the first category.

23. The appellant could not rely upon the relationship existing between magistrates and the Attorney General in isolation as this was and is a situation sanctioned by statute. R v Moss ex p Mancini [1982] 29 SASR 385,

24. Despite his conclusion the judge described the magistrate's agreement to attend at the Attorney General's Chambers as "unfortunate and, expressing the opinion that the relevant invitation from those acting on behalf of the Attorney General should neither have been extended nor accepted, trusted" that such a practice will not be repeated". He did not state the basis for his displeasure. It may be that in the course of argument before us Mr. Whaley, for the magistrate, did. When asked why this court should not condone a magistrate's attendance at the Attorney General's Chambers as an acceptable practice he answered with commendable candour:

"It might give uninformed individuals an impression of partiality".

25. If we are satisfied that a person who was aware of the circumstances (Mr. Hill's own unimpugned judicial fairness apart) would have thought that there was a real likelihood that, however on unconsciously, he had been biased in favour of the prosecution when acceding to the application for the issue of the warrant the appeal in that regard must succeed. As Lord Esher stated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at p 758 s:

"The question is not whether in fact he was or was not biased. The court cannot inquire into that.... In the administration of justice whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased".

And the following year:

"In fact, not only must judicial proceedings be really free from bias and interest, but they must by so conducted as to avoid giving any substantial grounds for suspicion"

per Hood J in Re McCrory, ex p Rivett [1895] XXI VLR 3 at p 5.

26. To like effect Lord Denning MR in Metropolitan Properties Co Ltd v Lannon [1969] 1 QB 577 at p 599:

"Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'The judge was biased'".

This theme was also illustrated by Lord Scarman, in the context of plea-bargaining, in R v Atkinson [1978] 67 Cr App. R 200 at p 202 and quoted by Dr Wesley- Smith at p 344 of Vol II of "Constitutional and Administrative Law in Hong Kong" (being one of the publications relied upon by the applicant), as having, rightly I believe, a wider application:

"...appearance of justice is part of the substance of justice..."

The classical expositon was give by Lord Hewart CJ in R v Sussex Justices ex p McCarthy [1924] 1 KB 256 at p 259 and adapted by Ackner LJ in R v Liverpool City Justices City Justices ex p Topping [1983] 1 WLR 119 at p 123:

"In our view .... the correct test to apply is whether there is the appearance of bias..."

In Scotland Lord Davidson in JA & D S Rennie v Scottish Milk Record Association [1985] SLT 272 at p 273:

"Nay, more (so jealous is the policy of our law of the purity of the administration of justice), if there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists".

27. It is not suggested on behalf of the Crown that the appellant's case is any the worse by reason of the absence of any disinterested, right minded and informed person at the material time and place and of consequent public knowledge of what had occurred prior to the appellant's application for leave to apply for judicial review. Like "the passenger on the Clapham Omnibus" dear to English legal practitioners the disinterested, right-minded and informed Person is a hypothetical figure. By analogy with the reasonable reader postulated to assist in the resolution of problems in the law of libel he may be regarded as a person neither unusually suspicious nor unusually naive Lewis v Daily Telegraph (1969) AC 234 at p 259 per Lord Reid.

28. Lord Denning MR Posed another test in Metropolitan Properties CO Ltd v Lannon at p 600; that of the reaction of any friends of the judge or magistrate had he sought prior advice. Danckwerts LJ, at p 602, posed another; that of the feeling of "a normal judicial person". Before parting with this authority I would mention that Lord Denning's test was approved by Lord Widgery CJ, in Rest v Altrincham Justices [1975] 1 QB 549 at p 553, and respectfully adopt the approach of Edmund Davies LJ at p 606 by stating that I cannot bring myself to hold that a decision may properly be allowed to stand even though there is a reasonable suspicion of bias on the part of the judge, magistrate or one or more members of an adjudicating body; particularly when that decision is made in the absence of the party adversely affected. Although proceedings to quash will usually be initiated by that party for his own purposes it is the interest of society in the patently fair administration of justice which determines whether or not his application prevails.

29. Doing my best to look at the material events from the point of view of a disinterested and fair-minded person aware of them but not of Mr. Hill's own state of mind and without recourse to any generalised suspicion as to the attitude of magistrates in Hong Kong that may have existed I have no hesitation in concluding that such a person would have thought that there was a real likelihood that, however unconsciously, Mr Hill had been biased in favour of the prosecution. By the same token I am satisfied that any of the magistrate's friends whom he had approached would have advised him against taking the course he did a course which would have been eschewed by the "normal judicial person".

30. In the premises I would hold the issue of the Warrant in the First Instance on 30 November 1985 to have been vitiated by bias and grant an order of certiorai to bring up the Warrant and quash it. To this extent the appeal should, in my opinion, be allowed.

Macdougall, J.A.:

31. It is not disputed that the proper test is that propounded by Ackner L.J., as he then was, in R v. Liverpool City Justices ex paste Topping [1983] 1 WLR 119 at p.123-

"In our view, therefore, the correct test to apply is whether there is the appearance of bias rather than whether there is actual bias."

32. In applying that test to the facts of a particular case it is the perception of a reasonable fair minded person with knowledge of the relevant circumstances that must be considered.

33. In the context of the present case I mean by "relevant circumstances" the urgency of the application and the need for secrecy. Mr Thomas readily accepted, as indeed he must, that where a magistrate is asked to issue at his home or on the golf course an urgent warrant of arrest, there could be no justification for thinking that a reasonable apprehension of bias arises on that account.

34. It seems to me therefore that the question to be asked in each individual case is whether what was done was necessary to meet any reasonable requirement such as the need for urgency or secrecy. In the circumstances of this case was it necessary for the magistrate to attend at the Attorney General's Chambers and for all the documents to be retained by the ICAC? In my view the answer must be No.

35. Had there been a reasonable apprehension that the presence of members of the press or other persons at the magistracy might compromise secrecy, the magistrate should have been asked to perform the required duty at his home. Furthermore, it was unnecessary for the ICAC to retain the documents when the magistrate himself could have kept them safely.

36. The course that was adopted was most unwise. The circumstances were calculated to create in the mind of a reasonable fair minded person a suspicion of the magistrate's impartiality. I would therefore allow the appeal to the extent indicated by my Lord the Vice-President.