RE ORDINARY COURT OF MILAN, ITALY

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JUDGMENT

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1. On 29th April 1994, a master gave effect to letters of request which, in the order made ex parte, are recited as 'of the Court of Milan'. The order required that among others Acceptor Corporation Ltd. (Acceptor) by its duly authorised officer be examined in relation to specified matters.

2. By summons dated 10th May 1994, Acceptor applied to set aside the order. By summons dated 16th June 1994 one Gianfranco Troielli applied to be added as a party and to have the order set aside. These two summons are now before me.

3. Mr. Troielli's application to be joined was not opposed. That part of the application I granted.

4. The substantive part of the applications by Acceptor and Mr. Troielli (the Applicants) falls into three parts:

1. The master lacked jurisdiction.

2. There was material misdirection or non-disclosure when the ex parte application was made.

3. Paragraphs 3(a), 4(a) and 5 of the order provided for general discovery.

Jurisdiction

5. Jurisdiction to give effect to a letter of request from a court or tribunal in another country is conferred on the High Court by Part VIII of the Evidence Ordinance Cap. 8 (the Ordinance).

6. Mr. Barlow who appeared for Mr. Troielli and Mr. Faulkner who represented Acceptor submitted that in order to assume jurisdiction the High Court must be satisfied of three matters

1. The request must be by or on behalf of a court or tribunal.

2. The evidence sought must be for the purposes of criminal proceedings which have been instituted or whose institution is likely before the requesting court if the evidence is obtained.

3. The criminal proceedings are not of a political character.

7. Assuming that jurisdiction has been established it was also submitted that under Section 76(1) of the Ordinance a residual discretion is conferred on the High Court to refuse an order in appropriate circumstance.

8. Mr. Ma Q.C. appeared for the Crown Solicitor who made the application for the order pursuant to O.70 on behalf of the requesting authority in Italy. Mr. Ma did not, as I understood him, dissent from any of the three jurisdictional points made by the Applicants. He contested, however, the Applicants' arguments that the request failed on all three points.

The letters of request

9. The request is contained in five documents or letters and numerous attachments. The first letter dated 7th June 1993 is headed 'Prosecutor's Office at Ordinary Court of Milan' and was signed by 'The Assistant Pubblic Prosecutor Dott. Antonio Di Pietro'. The letter reads at least in part

10. The letter then went on to indicate the information being sought, which was certainly far more than this court would be prepared to contemplate, and wound up in a somewhat florid and general vein. It left a great deal to be desired.

11. A second letter, which clarified the name of the bank, was issued by Dr. Di Pietro who signed as 'Solicitor General' on 25th August 1993. This letter referred to criminal proceedings against 'Ferranti Enrico and others'.

12. A third letter dated 7th January 1994 was issued by 'Milano District Attorney Dr. A. Di Pietro-Asstnt.' and was headed 'Office of the District Attorney c/o Milano Ordinary Court'. This letter plainly attempted to grapple with some of the defects which had no doubt been drawn to Dr. di Pietro's attention by the Crown Solicitor. After asking for judicial assistance in respect of the two men who had been specifically named in the earlier letters, it went on

13. It can be seen immediately that Dr. di Pietro was attempting to deal with the first two requirements of the Ordinance.

14. The same letter went on to explain in detail the case against Battaglia and Ferranti and other named persons arising out of the cheating of a company ENI to the benefit of another company called Montedison. It continued

15. Inter alia, the letter is there grappling with the third requirement of the Ordinance.

16. In the letter there followed requests seeking documents and the questioning of representatives of the company Tash Kurghan and of the bank in relation to the bank account. The letter then continued

17. It is perhaps hardly surprising that the Applicants' complain that the request is all part of an ongoing criminal investigation rather than criminal proceedings as would be understood in Hong Kong.

18. A fourth letter was dated 17th January 1994 it was entitled 'District Attorney's Office at the Ordinary Court of Milan' and signed 'The District Attorney's Office Dott. Antonio Di Pietro - Substitute -'.

19. This letter disclosed that one Agostino Ruju had been detained under the Italian Code of Criminal Procedure (the Code) and under interrogation confessed that, through Acceptor, he had set up a number of companies in Hong Kong for Mr. Troielli to enable Mr. Troielli to receive what he Ruju understood to be commissions. The letter therefore sought to widen the request to include the questioning of Acceptor generally in relation to such companies and in particular in relation to seven named companies including Tash Kurghan.

20. Finally, the Crown Solicitor received a letter dated 1st February 1994 making a number of small corrections to the previous letter. It was signed 'The Attorney General of the Republic/S/Dr. Antonio Di Pietro (Assistant)' and was chopped with the stamp of 'The Attorney General's Office in the Milan Ordinary Court'.

21. The letters themselves were relatively short running to about 24 pages. They were accompanied, however, by over 100 pages of transcripts of interrogations of various persons under investigation by Dr. Di Pietro's office and other documents. Altogether it was a pretty indigestible mass of material. It is not clear whether the master attempted to deal with the material on her own or whether the Crown Solicitor was asked to appear in support of the application. At all events the master plainly satisfied herself that the three requirements of the Ordinance had been met and made the order. Given the passages in the letters dealing with these requirements and given the assertions to like effect in the supporting affidavit, the master's order is hardly surprising. The contention is, however, that the master was wrong in assuming jurisdiction.

22. Available to me but not to the master are affidavits of Italian law from a number of eminent Italian jurists and lawyers. There is really little dispute between them. I see no point therefore in analysing their affidavits in detail. For the purposes of this application it is enough to paint in the consensual picture.

23. Under the constitution of the Italian Republic there is established 'The Judiciary'. It is composed of magistrates who are assigned by the Superior Council of the Judiciary to act as judges (in the sense that we understand that word) or as prosecutors under the Pubblico Ministero who has the 'obligation to conduct criminal proceedings'. The Judiciary has control over the criminal police. The Judiciary is autonomous and independent.

24. The Code prescribes the manner in which the Judiciary shall discharge its functions and confers various powers on it. The Code, which came into effect in 1989, provides for an accusatorial (again as we understand this word) procedure at trial as opposed to the previous inquisitorial nature of the proceedings.

25. Upon complaint being made of a criminal offence, a prosecutor makes a formal entry in the Register prescribed by the Code and opens a file. With the help of the police, he assembles material/evidence pointing to the guilt or otherwise of the person or persons under investigation. When the prosecutor has completed his investigation or upon expiry of the relevant time limit imposed by the Code, he will submit his file to a judge of preliminary investigation (JPI). In so far as it is possible to make comparisons, the JPI would appear akin to a magistrate in Hong Kong hearing committal proceedings. The JPI can commit for trial before a judge; close or terminate the case; or deal summarily with the offender and impose a penalty. The latter course seems to involve a combination of plea bargaining and a plea of guilty.

26. Up to this point a judge of trial has no part to play. The conduct of the proceedings is entirely in the hands of the prosecutor who has, amongst his powers, power to issue letters rogatory to foreign jurisdictions.

27. If a person is committed for trial, a file is prepared for the trial judge. This file is selective and by no means contains all of the material/evidence in the prosecutor's file. I was referred to various sections of the Code but, perhaps because of difficulties of translation, it is not clear exactly what is put in the file for the judge. What is clear, however, is that the trial judge can determine what will be used in evidence (in the sense that we understand that word) and has powers to issue letters rogatory to foreign jurisdictions. Otherwise, it appears that the trial is conducted very much along the lines of a criminal trial in Hong Kong.

28. One issue that divided the expert is 'proceedings'.

Mr. Piercamillo Davigo, who has succeeded Dr. Di Pietro as Deputy Public Prosecutor and assumed responsibility for this case, and who has served as both judge and magistrate, deposed that in the Code

"the word "proceedings" (procedimento) includes the preliminary investigations stage as well as the trial stage, whilst the latter by itself is referred to as "trial" (processo). "Criminal proceedings" begin when the public prosecutor receives notification that a crime has been committed and continue throughout the investigation until the case is at an end."

29. Mr. Nicola Mazzacuva, who has an impressive record both in the judiciary and in academia, disagreed with Mr. Davigo. He deposed

"In the most authoritative commentaries to the CCP the terms "proceedings" (procedimento) and "trial" (processo) have completely different meanings. The proceedings phase is characterised by the partisan activity of the public prosecutor's office in charge of the investigation whereas the trial phase is characterised by the intervention of the court. In my opinion, there is a precise technical-legal distinction between the proceedings and the trial proper which reflects the accusatory nature of the CCP which gives predominant weight to a hearing in open court."

30. Mr. Mazzacuva disappointingly did not cite the commentaries he mentioned. Despite the fluency and clarity of his affidavit, I am unable to accept his view. Having regard to Article 112 of the Constitution, which imposes an obligation on the Pubblico Ministero 'to conduct criminal proceedings', and the procedure for dealing with criminal cases that I have outlined, I find that as a matter of Italian law criminal proceedings commence with the registration of a complaint and end either when the JPI refuses to commit or declines to deal with the case summarily, or when a trial concludes.

31. Although criminal proceedings were undoubtedly on foot in Italy, the Applicants' primary argument is that the request did not come from 'a court or tribunal'. They submitted that s. 75 of the Ordinance must be interpreted according to Hong Kong law and that these words should be accorded the meaning that Hong Kong law plainly calls for, that is, an organ dealing with the trial process.

32. Mr. Ma argued that s. 75 should be given a broad construction and "court or tribunal" interpreted as "the judiciary or judicial authorities" of another country. That will enable s. 75 to embrace a system such as that to be found in Italy. Judicial comity requires that the Hong Kong courts should entertain letters of request from the judiciary of other countries.

33. That being so, Mr. Ma said that under Italian law magistrates performing the function of a public prosecutor come under the judicial umbrella. They are involved in criminal proceedings from start to finish, which includes the trial stage. When issuing letters, as they are empowered to do, magistrates are carrying out the functions of the judiciary. Magistrates are therefore a court or tribunal as widely construed or at least are acting on behalf of the Italian courts.

34. There is no direct authority on this point. In In re State of Norway's Application [1987] 1 Q.B. 433 the Court of Appeal decided that in order to determine whether proceedings in a foreign court are proceedings in a civil matter, the requested court should first consider whether they are civil proceedings by the law of the requesting court and, if so, accept that categorisation and jurisdiction if it is not in conflict with any fundamental principle of its own law. Such an approach appears to have been adopted by Sears J. in his judgment in 1994 MP No. 390 given on 8th December 1994.

35. The tail cannot, of course, be allowed to wag the dog. That the requesting party considers that it falls within the definition of court or tribunal cannot confer jurisdiction on a Hong Kong court if the requesting party is not a court within the meaning of s. 75 according to Hong Kong law.

36. I am unable to accept Mr. Ma's submission. In my judgment, Part VIII of the Ordinance plainly contemplates the situation where an organ of the foreign judicial authority is seised of and in control of proceedings in which it will ultimately determine the rights between the parties to those proceedings or the guilt of an accused person. That, I think, is demonstrated by the nature and extent of orders that may be made under s. 76. Further, all the leading authorities such as Norway and Rio Tinto Zinc Corporation and others v. Westinghouse Electric Corporation [1978] A.C. 547 are clear that fishing or mere investigation is not permissible. It is therefore difficult to see how a purely investigatory authority can be a court.

37. In the latter case, the House of Lords had no difficulty in deciding that a United States grand jury was not a court. That decision must be applied with some caution however in view of the wholly exceptional facts of that case.

38. In the present case, although a magistrate in Italy acting as public prosecutor falls within the judicial umbrella according to Italian law, it is clear that he has a distinct and separate role as investigator and prosecutor.

39. If Mr. Ma is right in his contention, it would have been easy for the legislature to have used an expression such as 'judicial authorities' in s. 75. That the legislature chose not to do so but to use words which have a well-known and restricted meaning in our jurisdiction militates against Mr. Ma's argument.

40. In fact, wider words have been used elsewhere. The third letter of request refers to the 'European Agreement on Judicial Assistance' signed at Strasbourg in 1959. The correct title is in fact the 'European Convention on Mutual Assistance in Criminal Matters' (the Convention). This was picked up by Professor Mario Pisani who made an affidavit on behalf of Dr. Di Pietro. (Two translations were made of this affidavit. It is still difficult to follow) In para. 3 Professor Pisani said

41. I note that there Professor Pisani seems to be drawing a clear distinction between courts and tribunals and an investigating authority such as a magistrate discharging the function of public prosecutor.

42. The Convention refers expressly to 'judicial authorities'. Article 15 provides, inter alia

43. Article 24 provides

          "Article 24

A Contracting Party may, when signing the Convention or depositing its instrument of ratification or accession, by a declaration addressed to the Secretary General of the Council of Europe, define what authorities it will, for the purpose of the Convention, deem judicial authorities."

44. Both Italy and U.K. are parties to the Convention. To give effect to the Convention, UK at least would have to pass domestic legislation. I have not been referred to any such legislation but it seems likely that wide wording to accord with the Convention would be required. Wider wording was used in the Criminal Justice (International Co-operation) Act 1990 where, in relation to obtaining in U.K. evidence for use overseas, s. 4 reads

          "4.--(1) This section has effect where the Secretary of State receives--

45. My emphasis.

46. The Ordinance is of course derived from the Evidence (Proceedings in Other Jurisdictions) Act 1975. Plainly, U.K. deemed the 1975 Act not wide enough to embrace what appears to be a more liberal approach to assisting other countries in criminal investigation. There is no reason to believe that the Ordinance should be construed differently.

47. It is clear to me that, whatever title or label he may have, a magistrate performing the function of public prosecutor under Italian law is not a court or tribunal within the meaning of s. 75.

48. I also reject Mr. Ma's submission that the magistrate's request was made 'on behalf of a court or tribunal'. There were interesting arguments as to whether the public prosecutor was seeking evidence in the sense that it is used in the trial process or mere material as part of his investigatory function. Article 431 of the Code provides that the file for trial will contain, inter alia

"The minutes of the deeds obtained in the probatory objection .... and of those acquired abroad in consequence of a rogatory commission"

49. The product of a letter of request may therefore certainly be evidence. Whether it is obtained by or on behalf of a court depends upon the facts as found. I find the facts to be that Dr. Di Pietro as public prosecutor made the request in his own right and not on behalf of a court.

50. It follows that this court does not have jurisdiction to entertain the letter of request. Accordingly the order of the master is set aside.

51. In the circumstances, I deal only briefly with other grounds advanced by the Applicants as to why the order should be set aside. All but one can, I think, be dealt with together. The Applicants said that the affidavit by an officer of the Crown Solicitor is defective because it contains statements of information and belief which are inadmissible either because these are not interlocutory proceedings or because the sources have not been disclosed. O. 41 r. 5(2). Therefore, the affidavit did no more than exhibit the letters of request which is insufficient for the purposes of O. 70.

52. Next, the Applicants maintained that the material placed before the court did not and could not help the Crown Solicitor because, this being an application to set aside an order made ex parte, it is necessary to look at the material which was before the master to see whether she was properly satisfied that she had jurisdiction.

53. Then they said that Dr. Di Pieto failed to disclose the nature and state of the proceedings, and that the "clean hands campaign" as these proceedings have been called, has led to political uproar in Italy so that it is arguable that the proceedings are of a political character.

54. In Westinghouse, Lord Keith of Kinkel said at page 654

"In the face of a statement in letters rogatory that a certain person is a necessary witness for the applicant, I am of opinion that the court of request should not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining in advance whether the evidence of that person will be relevant and admissible."

55. In my judgment, that principle should apply to the overall approach by this court to a letter of request. This court in the interests of international comity should strive to give effect to a letter of request if at all possible. The letter should stand or fall on its own. The function of the Crown Solicitor is little more than that of a conduit for placing the letter before this court although plainly he will help, as in this case, to ensure that there is no glaring omission or error in the letter. If objection is subsequently taken to the letter or order made on it, it is in my view permissible to look at any material then provided to see whether jurisdiction exists. Even if there was initial non-disclosure (which in my view there was not in this case) it remains a matter of discretion whether to set aside the order or not. Provided any non-disclosure was not deliberate and the matter undisclosed was not seriously prejudicial, the usual approach should be to exercise discretion in favour of the requesting court.

56. The question then remaining was whether the proceedings are of a political character. There has been immense political debate and upheaval in Italy as a result of this campaign. Two governments have fallen. Because politicians exclusively are being targeted by the campaign, it is contended that the proceedings are political. Absent, however, a motive on the part of the prosecutor other than to see justice done, I do not see that on the authorities the proceedings here were political in character. There is no real evidence that Dr. Di Pietro, his assistants or successor had or have any such motive or purpose. The authorities are to be found in Schtraks v. Government of Israel and others [1964] A.C. 557 in re Extradition Act 1870 [1969] 1 WLR 12 and a decision of Jones J. in 1990 MP 1193 delivered on 20th January 1994.

57. As far as fishing is concerned, Mr. Ma conceded that para. 5(a) of the order is too wide and must be 'blue pencilled'. On the material disclosed by the letters, I would not be disposed to blue pencil further.

58. As I said, the master's order must be set aside. I make an order nisi that the Applicants have their costs.