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

FAMV No. 28 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 125 OF 2013)

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REASONS FOR DETERMINATION

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Chief Justice Ma and Mr Justice Chan PJ :

1.  The applicants sought leave to appeal on both the point of law and substantial and grave injustice grounds.[1] The 1^st and 2^nd applicants are the shareholders and directors of the 3^rd to 6^th applicants. We dismissed the application after hearing Mr Martin Lee SC (for the applicants) with reasons to be handed down.

2.  The application for leave marked the third round of proceedings instituted by these applicants following a Letter of Request issued on 10 July 2006 by the public prosecutor at the Milan Court to the Secretary for Justice (“SJ”) under the provisions of the Mutual Legal Assistance in Criminal Matters Ordinance Cap 525 (“the Ordinance”).

3.  In the Letter of Request which was later clarified by supplementary information, the public prosecutor requested the assistance of the SJ in relation to the prosecution and investigation of certain criminal offences in Italy. It was alleged that one Agrama, Berlusconi and others were involved in corrupt activities in the purchase and sale of broadcasting rights through bribery and at inflated prices and in the money laundering of the proceeds of such activities through Italian and Hong Kong companies which included the 3^rd and 4^th applicants.

4.  Following the Letter of Request and upon an application made by the SJ (under s.12(2) of the Ordinance), search warrants were issued by a magistrate for the search of the residential premises of the 1^st and 2^nd applicants and the office premises of the 3^rd to 6^th applicants. As a result of these searches, a large quantity of documents was seized. They were delivered to and are now in the custody and control of the Commissioner of Police.

5.  In February 2007, the applicants commenced proceedings challenging the legality of the search warrants and the searches conducted pursuant to these warrants (“the legality proceedings”). This attempt failed when leave to appeal to the Court of Final Appeal was finally refused by the Appeal Committee in November 2012.

6.  Meanwhile, after the legality proceedings were commenced but before they were finally disposed of, the applicants instituted a second set of proceedings seeking the issue of a letter of request by the SJ to the Italian authority to obtain the evidence of the Italian officers who took part in the searches for the purpose of the legality proceedings. Letters of requests were issued by the Hong Kong court to the Milan judicial authority. This action also ended in October 2009 with the Court of Appeal in Milan revoking the authorization for the execution of the letter of request issued by the SJ.

7.  In April 2013, the SJ purported to give a direction under s.12(8) of the Ordinance for the seized documents to be transmitted to Italy. This led to the present judicial review proceedings by the applicants seeking to restrain the transmission of these documents. Godfrey Lam J refused leave to apply for judicial review holding that there was “no reasonably arguable case with a realistic prospect of success”. This was upheld by the Court of Appeal.  It is now before this Appeal Committee.       

8.  Two questions of law (as set out in the Notice of Motion) were identified as follows :-

(1)   Whether, for the purpose of section 5(1)(e) of [the Ordinance], the 1^st Respondent (“the Secretary”) is entitled to treat the statements contained in a request by a place outside Hong Kong for assistance as conclusive for the purpose of section 8(2)(b) of the Ordinance [while] disregarding clear and cogent evidence showing that the only external offence under investigation which formed the basis of the request had since resulted in the acquittal of the person then under investigation (“the 1^st Question”).

(2)   Whether the word “investigation” in the Ordinance is to be interpreted contextually for the purposes of section 8(2)(b) of the Ordinance such that a [letter of] request by a place outside Hong Kong for assistance in a criminal matter (viz. in “an investigation into an external offence” as defined in section 2 of the Ordinance) should be interpreted as being subject to (inter alia) section 8(2)(b) of the Ordinance, and not vice versa (“the 2^nd Question”).

9.  The 1^st Question at first blush appeared to be one of law. The relevant provisions of the Ordinance are contrasted with the corresponding legislation in the United Kingdom and in the Republic of Ireland.[2] In the relevant legislation in those other jurisdictions, there are provisions stating that where a certificate is issued by a foreign authority to the effect that a request for assistance relates to criminal offences and the prosecution or the investigation of such offences, such certificate will be regarded as conclusive.  There is no such provision in the Ordinance regarding conclusiveness.

10.  It was contended by the applicants that in effect the respondents (and the courts below) have so treated the Letter of Request.  The short answer to this is that neither the respondents nor the courts have done any such thing. It is not apparent from the judgments either of the Court of First Instance[3] or the Court of Appeal[4] that any such assumption was made.  As is clear from the judgment of the Court of Appeal dismissing the applicants’ application for leave to appeal to the Court of Final Appeal[5], this point was not even argued.  No point of law therefore arose under the 1^st Question.

11.  Instead, the real challenge made by the applicants was a factual one, namely, that the Letter of Request only covered one offence : the alleged misappropriation of funds by Agrama for the period 2000 to 2002[6]. It was contended by the applicants that the lower courts erred in concluding that the Letter of Request covered more than the one offence referred to.  If, as they argued, only the 2000 to 2002 offence was covered, then the prosecution in relation to this was concluded by the acquittals of Agrama and Berlusconi in what the courts below referred to as the Mediatrade proceedings.  Hence, under s.5(1)(e) of the Ordinance[7], the Letter of Request became “spent” and ought, in the light of the acquittals in the Mediatrade proceedings, have resulted in the request being refused.

12.  The respondents’ position has always been that the Letter of Request also covered investigations relating to alleged illegal activities beyond 2002. Although Mr Lee SC accepted that it was possible to construe the Letter of Request in this way, he nevertheless relied on other materials to reinforce his main submission that only the 2000-2002 offence was covered by the Letter of Request.  Reliance was particularly placed on two extensions of time obtained from the Milan Court in relation to the 2000-2002 offence, and also on a letter dated 29.1.2013 from the public prosecutor to the SJ.

13.  It is doubtful whether these other materials can be used as aids to construe the terms of the Letter of Request.  Even if they could, in the present case, they fell far short in enabling the Letter of Request to be construed in the narrow way the applicants contended.  At the end of the day, the conclusion reached by the judge (upheld by the Court of Appeal) was unimpeachable.  The judge said this at para. 45 of his judgment:

“In my view, a number of passages in the letter of request and the clarifications provided by Mr de Pasquale (the Milan public prosecutor) subsequently in 2006 make it clear beyond doubt that the request read as a whole relates not only to the alleged misappropriation by Agrama in the years 2000 to 2002, but also to an investigation into offences of tax fraud and money laundering against Agrama and others for the period from 2000 onwards.”

14.  Even if a different view could arguably be taken on the facts (which, in our view, cannot be taken in the present case), we would not have granted leave.  As indicated above, no question of law was involved in the 1^st Question.  It is one of fact.

15.  The 2^nd Question is in effect the same as the first, the answer to which depended on how the Letter of Request was to be construed. This is clear from the way the argument was presented in the Notice of Motion. For the same reasons as those refusing leave with the 1^st Question, we also refused leave on this question.

16.  Although reliance was also placed on the substantial and grave injustice ground, as well as  the “or otherwise” ground in s.22(1)(b) of the HKCFAO, no separate submissions were advanced in support.

17.  For these reasons, we did not see any reasonably arguable grounds of appeal. The application for leave was accordingly dismissed.