X v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

HCCM 49/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONFIDENTIAL MISCELLANEOUS PROCEEDINGS
NO. 49 OF 2003

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1. In these proceedings X (the Respondent) applies to set aside, or in the alternative vary, an order made by Tong J under s. 14(1A) of the Prevention of Bribery Ordinance, Cap 210 (the Ordinance) on 21 July 2003 (the Order) and two notices (the Notices) issued under the authority of the Order by the Commissioner of the ICAC (the Applicant) under ss. 14(1)(a) & (b) of the Ordinance.

2. Mr Johnny Mok of counsel appears for the Respondent, Mr Ian McWalters SADPP, Mr Marco Li GC with him, appears for the Applicant.

The issues

3. The basis of the Respondent's application is that ss. 14(1)(a) & (b) contravene A. 14 of the Hong Kong Bill of Rights the right to privacy. It is said that the Order is void because Tong J failed to consider the relevancy of the information being sought to the investigation of the Respondent's suspected offences; and the information described in the order exceeds the requirement of any reasonable investigation of those suspected offences. It is said that the Notices are void for the same reasons, coupled with an additional claim that not only is their scope unreasonably wide and oppressive, but they are also irrelevant to the Applicant's investigation.

4. The Applicant not only opposes the application, but also takes issue on the Court's jurisdiction to hear the application. I have directed that the jurisdiction issue be argued and decided first.

Claim to jurisdiction

5. As I understand Mr Mok's argument, the Respondent claims that this Court has jurisdiction to hear the application both under O. 32 r. 6 of the High Court Rules (the Rules) and by virtue of the Court of First Instances' inherent jurisdiction.

Order 32 rule 6

6. Order 32 rule 6 of the Rules provides that:

"The Court may set aside an order made ex parte."

7. Order 1 rule 2(3) of the Rules provides that:

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

8. The application to Tong J under s. 14(1A) of the Ordinance leading to the Order was made under O. 119, which applies to all applications to the Court under Part 111 (Powers of Investigation) of the Ordinance.

9. Section 14(1A), which is in Part 111 of the Ordinance, provides that:

"(1A) The Commissioner or an investigating officer may, for the purpose of an investigation into, or proceedings relating to, an offence suspected to have been committed by any person under this Ordinance, make an ex parte application to the Court of First Instance in chambers for an order under subsection (1)."

10. Regardless of whether or not the application under s. 14(1A) leading to the Order was in respect of civil or criminal proceedings the clear words of O. 1 r. 2(3) referring to O. 119, make it clear that O. 32 r. 6 applies to it and unless jurisdiction can be denied under any other rule of law, this Court can set the Order aside. It is unnecessary for me to determine the nature of the proceedings.

11. The Applicant submits that the Respondent cannot rely on O. 32 r. 6 because, as the application under s. 14(1A) was brought ex parte, it was not a lis inter partes and the Respondent has no right to be heard in opposition to it. In advancing this argument Mr McWalters relied on obiter comments of Keith JA in Apple Daily Ltd v Commissioner of the ICAC (No. 2) [2000] 1 HKLRD 647, an appeal from a decision of mine. In that case the proprietors of the Apple Daily newspaper, relying on O. 32 r. 6, sought to set aside search warrants under s. 17(1A) of the Ordinance and s. 85 of the Interpretation & General Clauses Ordinance, Cap. 1 obtained from a judge of the Court of First Instance. [Order 118 of the High Court Rules referred to in O. 1 r. 2(3) governs such warrants.] At first instance, counsel for the Commissioner had conceded that O. 32 r. 6 gave the Court the power to set the warrants aside, on appeal a different stance was taken on that issue.

12. At page 657(G) to 658(E), Keith JA said this:

"(Counsel) for the Commissioner...contended that O. 32 r. 6 did not give the Court power to set aside the warrants. Accordingly, the appeal had to be dismissed without a consideration of the merits, because although the application to Lugar-Mawson J was dismissed, it should have been dismissed for want of jurisdiction without a consideration of its merits.

When properly analysed (counsel's) argument has, I think, two limbs. First, it is said that an application for a search warrant is not a lis inter partes. It is a unique procedure in which there is only one party, namely the party applying for the warrant. Thus, the proceedings in which the application is made are such that they come to an end when the ex parte application for the warrant is granted. (Counsel) argued that O. 32 r. 6 does not apply to such an order because: (a) O. 32 r. 6 contemplates another party to the proceedings (and in something other than a lis inter partes by definition no other party exists); and (b) the proceedings are over by the time when O. 32 r. 6 can be invoked.

......

I am sceptical about the correctness of these arguments. As for the first argument, I agree with the premise on which the argument is based, namely that an application for a search warrant is not a lis inter partes. An application for letters of request, which was held by Godfrey J (as he then was) in A-G v L [1990] 1HKLR 195 not to be a lis inter partes is an analogous example. But it does not necessarily follow from that that O. 32 r. 6 cannot he relied upon to found an application to set the warrant aside."

13. I share Keith JA's scepticism, O. 32 r. 6 is in clear terms, it provides that an order made ex parte can be set aside, but it says nothing about who may, or may not, bring the application to set it aside. Obviously the applicant for the order has the right to ask the Court to set it aside, but what of the subject of the order? As it was made ex parte it must necessarily follow that its subject was unaware both of the bringing of the application for the order and of its making. However, once the order is made and served on its subject, the position changes, the subject is aware of the order and has an interest in it and, as I see it, O. 32 r. 6 gives him an avenue under which he can ask the Court to reconsider the making of the order.

14. With respect to Mr McWalters, I derived no assistance from the English Queen's Bench Divisional Court's decision in R v Crown Court at Lewes, Ex Parte Hill (1991) 93 Cr App R 60. The Divisional Court in saying, at page 68, that "...there is...no universal principle that that a person is entitled to be heard before a judge exercises a power which may be prejudicial to him..." was stating the obvious. There are many instances of that; the Divisional Court pointed one out the preferment of a voluntary bill of indictment. In this case we have another the making of orders under s. 14(1A) of the Ordinance. In Apple Daily (No. 2) yet another the granting of search warrants under s. 17(1A) of the Ordinance and s. 85 of the Interpretation & General Clauses Ordinance. The list of such instances, if not infinite, will undoubtedly be a long one. The fact that the law gives courts such powers does not inevitably mean that they have no power to set aside, or vary, orders made under them.

15. I am aware that in Apple Daily Ltd v Commissioner of the ICAC HCMP 7315 of 1999 (unreported), the decision under appeal in Apple Daily (No. 2), I said at page 7, lines N to S:

"...I am not as convinced as (counsel) appears to be that the combined effect of O. 1 r. 2(3) and Orders 118 and 119 is to bring all possibly applicable provisions of the High Court Rules to play in criminal proceedings. There is an argument for saying that each order listed in O. 1 r. 2(3), is so far as criminal proceedings are concerned, a self-contained code of procedure, one that can be exercised independently of any of the other High Court Rules, unless the order itself invokes in whole, or part, any other order."

All I can say is that I now doubt if I could be persuaded by that argument.

16. It follows from the above discussion, that I am satisfied that

O. 32 r. 6 gives this court jurisdiction to hear and determine the Respondent's application to have the Order and the Notices set aside, or varied.

Inherent jurisdiction

17. I am however not persuaded that I have an inherent jurisdiction to do so.

18. In advancing his argument that this court has an inherent jurisdiction to set the Order and the Notices aside Mr Mok relies on Cons J's judgment in Chan Cheung Yuk Lin v Harknett [1978] HKLR123. In that case the former High Court found that the then Acting Commissioner of the ICAC had acted ultra vires by failing to insert the words "insofar as it may be in your possession" in notices issued under s. 14(1)(d) of the Ordinance. The basis on which the court claimed jurisdiction to make that finding is hard to discern from the judgment, for the discussion on inherent jurisdiction is directed at a second application in the same proceedings that the notices were unreasonable and oppressive and should be set aside. Cons J assumed, ex cathedra, that the Court's jurisdiction to decide this second issue lay in an inherent jurisdiction, saying at page 126:

"Counsel for the Attorney General first questioned the jurisdiction of the court to inquire into this aspect. He said that he had been unable to find any authority in which the court had exercised an inherent power to set aside a notice served pursuant to a statutory power. If that be so - and certainly no such authority was put before me - it may merely indicate the commendable restraint shown by those entrusted with the exercise of wide powers. Nevertheless I am confident, like my brothers in the English jurisdiction*, that in appropriate circumstances the court would be entitled to intervene. [* Megarry J in Royal Bank of Canada v. Inland Revenue Commissioners (1972): Ch. 665 at 677 and Ackner J in Clinch v. Inland Revenue Commissioners (1974) Q. B. 76 at 92.]"

19. Mr McWalters reminds me that in 1978, when Chan Cheung Yuk Lin was decided, s. 21K of the High Court Ordinance, Cap. 4 and O. 53 of the Rules were not in force. There was a major overhaul of the then Supreme Court Ordinance and the Rules of Supreme Court in 1987 (See: Ordinance No. 52 of 1987). Today, if a person wants to challenge an administrative decision on the grounds of ultra vires, he must follow the procedure laid down in O. 53 of the Rules and apply for leave for a judicial review by way of originating motion. And, as I hope I have demonstrated in this decision, if a person wants to set aside a notice of the Court obtained ex parte, the Court's jurisdiction to hear and determine the application lies in O. 32 r. 6, subject to the limitation in O. 1 r. 2(3).

20. In addition to Chan Cheung Yuk Lin, I was referred to two other decisions where the question of whether or not a court was able to turn an ex parte hearing into an inter partes one pursuant to an inherent power arose.

21. Keith JA in Apple Daily (No. 2) expressed his obiter opinion that such an application was an exercise of the Court's inherent jurisdiction to revoke or vary orders made ex parte (see p. 658I-J). His comments appear to have arisen because of his concern that the search warrants in that case could not be challenged by judicial review as a judge of the Court of First Instance had issued them.

22. In Re Letters of Request to Singapore and Arizona [2003] 1 HKC 162 Seagroatt J ruled that a defendant in a criminal trial had a locus standi in letter of request application made by the prosecution under s. 77E of the Evidence Ordinance, Cap. 8, for the purpose of obtaining evidence for use in that defendant's trial. At page 169(B-E) he said this

"Finally I have to deal with the argument that by making the order I am 'functus officio' and that the only remedy is by way of appeal. The court has an inherent power to review or vary its orders. In criminal cases that power is more flexible because it is not circumscribed by statute. If it were a civil matter. O. 32 r. 6 of the High Court Rules provides that an order made ex parte may be set aside. A party affected by it may apply to have it set aside. The Department of Justice's application was in the nature of criminal not civil proceedings but the position provided for by statute exists at common law and it would be a sad reflection upon the flexibility of the legal system if every order was to be regarded as immutable by the judge who made it, and of a form that could only be changed by the appeal process. The very fact that an order was made ex parte indicates, in my judgment, that when circumstances arise a judge must, not simply may, review his order. If he was to do otherwise he would be ignoring factors which clearly make his decision an unjust one. In criminal proceedings, he is not trammelled by statutory inhibition against changing an order. Orders or decisions made before or in the course of a trial are often reversed as circumstances change. In short, I have decided that the defendants do have standing to seek a revocation of my order of 24 June 2002 and that I can exercise the court's inherent power to review my decision."

23. With respect, apart from making the bare claim to an inherent power to set aside an earlier order made under s. 77E of the Evidence Ordinance, the judgment contains no analysis of the basis for the power, or of its scope and how it might impact on the particular statutory regime with which he was dealing. Neither does it deal with the legal principles of locus standi and funtus officio. Further, Seagroatt J recognised that in civil proceedings the power to set aside an ex parte order arose under O. 32 r. 6. Applications under s. 77E of the Evidence Ordinance, which there can be little doubt are criminal proceedings, are not brought within the ambit of that rule by Order 1 rule 2(3), whereas ex parte orders under Part 111 of the Ordinance (regardless of whether they are made in civil or criminal proceedings) are. I note that no rule of the High Court Rules deals with applications for letters of request under s. 77E of the Evidence Ordinance. I have no doubt that had O. 32 r. 6 governed the application in Re Letters of Request to Singapore and Arizona Seagroatt J would have relied on it to found jurisdiction, rather than claiming power under an inherent jurisdiction.

24. In R v Stuchiner [1997] 2 HKC 271 the Court of Appeal invoked an inherent jurisdiction in allowing an appeal out of time of a defendant who had been convicted in the District Court on a charge that was a nullity. As there was no valid charge laid against the appellant there was no conviction for him to appeal against, a situation for which the Criminal Procedure Ordinance provided no answer. Litton VP, as he then was, said this about the Court of Appeal's inherent jurisdiction at 274F-G:

"... this court, being a superior court of unlimited jurisdiction for the administration of justice, has a reserve power which is sometimes identified as the inherent jurisdiction of the court. This jurisdiction is exercisable outside the framework of the Criminal Procedure Ordinance (Cap 221): a jurisdiction which enables this court to function effectively as a court, in circumstances where statutory rules do not provide the answer."

25. In Hunsworth v Attorney General [1996] 3 HKC 519, Godfrey JA in relation to a judge's order, purportedly in exercise of an inherent jurisdiction, that court documents, including a draft order, be kept sealed and not disclosed to the solicitor acting for persons who may be affected by the order, said this, at p. 527(I) to 528(D):

"(The judge) had in my opinion no power to give the directions he purported to give, which operated to restrict the general rights conferred on the members of the public by O. 63. When the legislature intends that 'in the interests of public order or security' a judge should be given special powers e.g. to hold criminal proceedings in camera, it says so: see, for example s. 123 of the Criminal Procedure Ordinance (Cap 221). The suggestion that a judge has power, in the exercise of some 'inherent jurisdiction', to dispense with the provisions of O. 63, and to direct to be 'sealed' documents which under the Rules of the Supreme Court are mandated to be made available for inspection by the public, sends shivers down the spine."

26. Litton VP in Kilkenny Limited & Ors v A-G Civil App No. 157 of 1995 (unreported), referring to the English case of R v Secretary of State for Social Services ex parte Child Poverty Action Group [1989] 1 All ER 1047, was of the firmly expressed view that the question of the locus standi of the parties to proceedings goes to the jurisdiction of the court and where the court has no such jurisdiction, the parties are not entitled to confer jurisdiction on the court by consent.

27. The authorities indicate that there are cases where an inherent jurisdiction may be invoked to prevent injustice and enable a court to function effectively as a court in circumstances where statutory rules do not provide an answer. Stuchiner is an example of one. Such cases are extremely rare. The authorities also clearly indicate that an inherent jurisdiction is not to be assumed where there are statutory rules conferring and defining jurisdiction, as there are in this case by virtue of O. 32 r. 6.

Judicial review

28. I decline to deal with Mr McWalters' argument that the Respondent's remedy lies in bringing an application for judicial review, challenging either the consistency of s. 14 with the Bill of Rights and the Basic Law, or challenging the notices on the ground of ultra vires. A decision on that issue is not necessary as I am satisfied that I have jurisdiction to hear and determine this application under O. 32 r. 6. The argument is an interesting one, but this is not the case to decide it.

The application

29. I will now fix a date on which to hear the Respondent's application.