HO SHAU HONG v. THE COMMISSIONER OF POLICE AND ANOTHER

Nos. 147 & 148 of 1986

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H E A D N O T E

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Judicial Review - Decisions of the Commissioner of Police - Whether subject to judicial review - Duties and powers of police officers - Rights of individuals in relation to evidence obtained in the execution of authorisations and warrants.

A number of premises were entered by members of the Royal Hong Kong Police Force pursuant to authorisations and warrants issued under the provisions of Section 23 of the Gambling Ordinance and of Section 50(7) of the Police Force Ordinance. They seized numerous documents and chattels and observed activities which were recorded in witness statements. The applicant, a member of the Royal Hong Kong Jockey Club, was subsequently charged with illegal gambling but, after a lapse of time, the prosecution offered no evidence against him and he was acquitted.

When the applicant was given notice that he was to be called before the Disciplinary Committee of the Club and that police officers who had executed the authorisations and warrants would give evidence before it he obtained leave to apply for declarations and orders of prohibition restraining the police officers from so doing. The judge granted his application. On appeal to the Court of Appeal:-

Held (1) that the decisions of the Commissioner to authorise police officers to give evidence before the Disciplinary Committee of the Club and to furnish copies of their witness-statements were susceptible to judicial review.

(2) that in giving such authorisations - which were required in the context of section 2 of the Official Secrets Act 1911 and to allow the officers the necessary time, the Commissioner was acting intra vires whether his officers were to act as such or as private citizens.

(3) that in giving evidence before the Disciplinary Committee of the Club a police officer would not be acting as such but as a privata citizen.

(4) that no other legal remedy was available to the applicant in the circumstances.

IN THE COURT OF APPEAL

Nos. 147 & 148 of 1986
(Civil)

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Dates of Hearing: 28th April, 1st & 5th May 1987

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J U D G M E N T

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Kempster, J .A. :

1. This is an appeal by the Commissioner of the Royal Hong Kong Police Force and by the Royal Hong Kong Jockey Club ("the respondents") from a reserved judgment of Power J. given on 27th October 1986 in which, by way of judicial review, he granted Mr. Ho Shau Hong ("the applicant") a declaration that it was unlawful for the Commissioner of Police or his officers to disclose to the Disciplinary Committee of the Royal Hong Kong Jockey Club information obtained by reason of the execution on 17th. April and 1st June 1985 of certain authorisations and warrants granted pursuant to Section 23 of the Gambling Ordinance (Cap. 148) and to Section 50(7) of the Police Force Ordinance (Cap. 232) respectively. The effect of these documents was to safeguard the officers from claims for damages for trespass. The applicant, who at all material times was a member of but has now resigned from the Club, explained that he was no longer interested In the outcome of the appeal and took no part in it. However, we were fortunate in that Mr. Mills-Owens, who had appeared for the applicant below, agreed to assist us as amicus curiae.

2. Although charged with illegal gambling in December 1985 the applicant had been acquitted during March following when the Crown offered no evidence against him. Intimation of action by the Club in like regard followed and when it became apparent that police witnesses might well be called before the Disciplinary Committee the applicant and his advisors cast around for legal remedies which might preclude such eventuality.

3. The remedies available were few. Albeit it is one of the functions of the Broadcasting Complaints Commission in England, pursuant to Section 81 of the Broadcasting Act 1980, to consider and adjudicate upon unwarranted infringements of privacy in or in connection with the obtaining of material included in sound or television programmes actually broadcast

"We have .as yet no general remedy for infringement of privacy." per Lord Denning MR in Re X (a minor)(1).

This is equally true of Hong Kong.

4. On the contrary, as Lord Scarman stated in Home Office v Harman(2).

“- freedom of communication became part of the English common law.”

and when in that case he and Lord Roskill referred to a right of privacy they were doing so in the context of discovery and of a person's right, deriving from proprietary or possessory title, to prevent others from perusing or taking copies of his documents. No obligation of confidentiality had been imposed on or accepted by the police officers executing the authorisations and warrants.

5. None of the documents or chattels contirtgently to be disclosed to the Disciplinary Committee are the property or at any material times were in the possession of the applicant. One pamphlet was seized from his premises but, since it has become forfeit to the Crown, he has no further proprietary or possessory claim to it. It does not assist the applicant that others who had proprietary or possessory titles to exhibits. presuming such exhibits were not also forfeit, would have had a claim to their return once-the purposes for which the authorisations and warrants were issued had been exhausted. Gordon v Metropolitan Police(3) ; A.G. v Ocean Timber Transportation Ltd.(4)

6. In the event the applicant obtained leave to seek relief by way of judicial review; formally seeking declarations and orders of prohibition.

7. While the prospect that the Commissioner or his officers may take a particular step can hardly in itself be the subject matter of judicial review though, otherwise than against the Crown and in appropriate circumstances, apprehended injury might give rise to an application for an injunction "quia timet" the susceptibility of the Commissioner's decisions to allow his officers to disclose the evidence in question to the Disciplinary Committee of the Club and to provide copies of their witness statements, albeit not convassed below, was properly argued before this Court as a preliminary issue going, as it does, to jurisdiction. It is to be observed that the Commissioner has not ordered any of the officers to assist the Club.

8. The authority and powers of the Commissioner to perform public acts and duties derive from statute and our courts may grant relief if and when a person or body charged with such performance has stepped outside the parameters of his or its jurisdiction. By the same token our courts may intervene if such a person or body has failed to perform duties lying within them. This proposition, however, is subject to qualification. To quote Lord Diplock in CCSU v Minister for the Civil Service(5):

"For a decision to be susceptible to judicial review the decision-maker must be empowered by public law - to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph."

9. The Commissioner, the decision maker for present purposes, is so empowered in relation to the material evidence, if only to free his officers from the inhibitions imposed by Section 2 of the Official Secrets Act 1911 and to afford them the necessary time, and one of the consequences mentioned by Lord Diplock which could apply to the applicant is that which would affect him” - by altering rights - of that person which are enforceable by - him in private law.” (p.408). While a member of the Club the applicant enjoyed rights against it sounding in contract. The consequence of the Commissioner's decision to permit his officers to furnish the evidence in question to the Disciplinary Committee might well be to affect those rights and it is not necessary that such decision should give rise directly to any legally enforceable right or liability. His

"determination may be subject to certiori notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates. It is not even essential that the determination must have that result, but there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities. That subsequent condition may be a later determination by another tribunal." per Diplock LJ (as he then was) in Reg. v Criminal Injuries Compensation Board Ex parte Lain(6); quoted with approval by Sir John Donaldson MR in Reg. v. Takeover. Panel Ex parte Datafin Plc(7).

10. I am satisfied that the decisions of the Commissioner in relation to evidence obtained during the discharge of statutory obligations come within the ambit of public law and are susceptible to judicial review even if not on the precise basis outlined in the Statement filed by the applicant on 23rd July 1986 pursuant to RSC O.53 r.3(2)(a).

11. Power J., quite rightly and perhaps with the 4th Amendment to the United States Constitution in mind, emphasised the interest of members of the public in being secure in their homes and offices and in keeping their chattels and papers to themselves. From this he concluded

"that this interest requires that evidence gathered for the purpose of prosecuting criminal offences by police under warrants which allow them to enter private premises be privileged except when used for the prosecution of those offences."

Having regard to the terms of his order “evidence” embraced what had been seen and heard in the course of executing the authorities and warrants and not merely chattels seized. "Warrants" as earlier explained in his judgment included "authorisations". By "privilege" he meant, I believe, “”immune from production in the public interest.”

12. Generally the public interest requires that uninhibited evidence be given in domestic inquiries by witnesses confident that their evidence cannot be used to their disadvantage in subsequent proceedings. Neilson v Laugharne(8). That is not the position here. The concept of "privilege" is well known and honoured in the general run of civil litigation; privilege being but an example. By analogy documents are inspected by and copied to other parties to an action on the implied undertaking that, subject to the leave of the court, their use shall be limited to that particular action and not extended to any collateral or ulterior purpose. Riddick v Thames Board Mills Ltd(9); Home Office v Harman(10); Sybron Corporation v Barclays Bank Plc(11). The concept has no application to material seized or to what is seen or heard in the course of executing authorisations or warrants since, even if obtained unlawfully and subject to the overriding discretion of the trial judge, evidence is admissible in any legal proceedings if relevant. Lord Ashburton v Pope(12). To whom would any undertaking impliedly be given? On the other hand, documents obtained in circumstances amounting to a contempt of court will not usually be received in evidence. LTC Film Distributors Ltd v Video Exchange Ltd(13). There is a public interest in the ascertainment of the truth in the diciplinary proceedings of domestic tribunals as well as in litigation and arbitration.

13. The considerations urged upon us by Mr. Mills-Owens substantially depend upon the proposition that the whole of the duties and powers of a person who is a member of the Police Force are to be found by a perusal of the Police Force Ordinance and other ordinances and that since none contain a provision permitting or requiring the disclosure to third parties of information obtained during the discharge of statutory duties to do so or purportedly to authorise such disclosure would be to act ultra vires. It is not suggested that the Commissioner's decisions were unreasonable or, as in IRC v Rossminister Ltd(14), that the powers given under the relevant ordinances were in any way abused or used for some extraneous purpose. What is suggested is that the fruits of searches carried out pursuant to statutory powers are not freely available. But

"there may be services rendered by the police, which, although not within the scope of their absolute obligations to the public, may yet fall within their powers, and in such cases public policy does not forbid their performance.” per Viscount Cave LC in Glasbrook Bros. Ltd v Glamorgan County Council(15).

Viscount Finlay observed, at p.287:

"There was no duty on the police to give the special protection asked for, but it does not follow that it was their duty not to give it."

What fell for decision in that case was the propriety of charges made by the County Council for special police protection afforded to a colliery when, before 1925 in England, a statutory provision, by then repealed, had provided for the payment to a police authority of sums of money for the loan of police constables. Similar provisions currently apply in Hong Kong of the Police Force Ordinance reads:

“There shall to be established a fund to be known as the police welfare fund –

(2) The fund shall consist of – (b) all sums paid for hire of police officers –“

And section 66

"(1) On the application of any person the Commissioner may, if he thinks fit, detail any police officer - to do special police duty in upon or about any premises or business or vessel specified by the applicant.

(2) The applicant shall pay to the Commissioner for the services of any such officer or officers so detailed such fees as the Commissioner may think fit."

"It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but there are at least those, and they would further include the duty to detect crime and to bring an offender to justice." per Lord Parker CJ in Rice v Connolly(16)."

14. No distinction is to be drawn between the rights and duties of a constable in Hong Kong and his equivalent in the United Kingdom. Neither is any more or less a creature of statute than the other. Section 2 of Ordinance No. 12 of 1844 "An Ordinance for the establishment and, regulation of a Police Force in the Colony of Hong Kong" read:

"And be it enacted that a sufficient number of fit and able men shall from time to time be appointed by the Governor as a Police Force for the whole of the Colony of Hong Kong - to act as constables for preserving the peace and preventing robberies and other felonies and apprehending offenders against the peace and the men - shall have all such powers, authorities, privileges and advantages and be liable to all such duties and responsibilities as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any English statute or Colonial Ordinance now or hereafter to be enforced in the said Colony."

15. In summary, the functions of a police officer are not limited to the duties set out in Section 10 of the Police Force Ordinance as is implicitly recognised by its terms:

"The duties of the police force shall be to take lawful measures for - (r) executing such other duties as may by law be imposed on a police officer."

The Police Force Ordinance, other ordinances and the common law all confer powers on a constable in Hong Kong who, when acting as such, is an officer of the Crown and a public servant. These powers permit him, for example, to make disclosures to "Interpol." X v Metropolitan Police Commissioner(17). In general terms the law was explained by this Court in the not dissimilar case of Hall v Commissioner of the ICAC(18) subsequently to the judgment presently subject to appeal.

Fuad JA stated:

“No authority was cited to us - that demands that there be specific statutory authority before there can be disclosure of information lawfully obtained. The reverse is the position in my view -”

He went on to point out that “the reverse” is illustrated by section 4 of the Inland Revenue Ordinance (Cap. 112) and by section 22 of the Census and Statistics Ordinance (Cap. 316). My Lord the Vice-President who, like Clough JA, gave judgment to the same effect, cited a passage from the judgment of Megarry V.-C. in Malone v Metropolitan Police Commissioner(19):

"England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden."

For "England" "Hong Kong" may readily be substituted.

16. In any event

" - This doctrine (ultra vires) ought to be reasonably and not unreasonably understood and applied and - whatever may fairly be regarded as incidental to or consequential upon those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires." per Lord Selborne LC in Attorney General v Great Eastern Railway Co(20).

If acting as such a police officer providing evidence to the Club would be exercising functions fairly to be regarded as incidental to or consequential upon his statutory and common law duties and powers. The Commissioner, in authorising such provision, including copy witness-statements, would likewise be exercising functions so to be regarded; .particularly having regard to Police Force Ordinance.

17. However, in giving evidence before the disciplinary committee of a private club, whether or not, like the one in question, it has recognised public functions, a police officer would, in my opinion, be acting rather as an ordinary citizen entitled to provide such assistance if he so desired and liable to give evidence in Court if served with a subpoena; perhaps in relation to a road accident. A person is not, in the absence of statutory prohibition, inhibited from exercising his or her private rights by reason of membership of the Police Force.

18. The Commissioner did not act ultra vires whether he authorised his officers to give the material evidence before the Disciplinary Committee of the Club in their official or private capacities. No more did he so act in authorising the provision of the officers’ witness-statements.

19. I would allow the appeal and discharge the order made on 27th October last.

Cons, V.-P.

20. I have had the advantage of reading in draft the judgment of My Lord Kempster J.A. and am in full agreement with his conclusions. I too would, therefore, allow the appeal.

Clough, J.A.:

21. I agree that this appeal should be allowed for the reasons given by Kempster J.A.