ATTORNEY GENERAL v. "L"

[An application for an order for issue of letters of request to a foreign court in connection with criminal proceedings instituted or intended to be instituted in Hong Kong ought to be commenced by way of ex parte originating summons, to which the person suspected of the criminal offence in question will not be a party]

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NOS. 1973-7 OF 1989

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J U D G M E N T

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1. This is an appeal from an order of Master Perrior made on 17th August 1989. The appeal raises a question as to the rights of person suspected of a criminal offence, in connection with which the Crown has successfully applied to this Court for an order for the issue of letters of request to a foreign Court, to inspect the documents filed in the Registry of this Court relating to the Crown's application.

2. It has been suggested that the point is of some general importance and so, although I heard the argument on the appeal in Chambers, I have adjourned the proceedings into open court for judgment.

3. It is convenient to start with section 77E of the Evidence Ordinance, Cap. 8. Sub-sections (1), (3) and (5.) are material. Section 77E(l) provides as follows:-

"(1) Where it appears to the High court that any criminal proceedings-

(a) have been instituted in Hong Kong; or

(b) are likely to be instituted in Hong Kong if evidence is obtained for the purposes of those criminal proceedings by virtue of an order made under this section,

the High Court may order that a letter of request shall be issued and transmitted in such manner as the High court may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong, requesting such court or tribunal to assist in obtaining evidence for the purposes of those criminal proceedings."

Section 77E(3) provides as follows:-

"(3) An application to the High Court for an order under this section may be made ex parts supported by affidavit-

(a)    in respect of criminal proceedings referred to in subsection (1)(a), by the Attorney General or any person charged with an offence to which such criminal proceedings relate; or

(b) in respect of criminal proceedings referred to in subsection (1)(b), by the Attorney General."

Section 77E(5) provides as follows:-

"(5) The power to make rules of court under section 54 of the Supreme Court Ordinance shall include power to make rules of court with respect to this section (including the procedure to be followed) and for supplementing its provisions."

4. It seems that no rules of court have been made pursuant to the power conferred by subsection (5).

5. What happened in the instant case was that, pursuant to subsection (3), the Crown made an application to this court for an order under section 77E. The Crown made its application ex parte supported by affidavit as subsection (3) envisages. (In form, the application resembled, but did not precisely follow, the form prescribed by the Rules of the Supreme Court for an originating notice of motion.) Notice of this application was given to the Registrar of this court. The form of application concluded with the words: "To the Registrar, Supreme Court, Hong Kong." No such notice was given to the suspected person (who now wants to inspect the documents filed in the Registry In connection with the Crown's application). The form of application is not addressed to the suspected person. In my opinion, he is not a party respondent to the Crown's application which is not addressed to him (as I have said) and to which he is not required nor expected nor entitled to make an answer. The Crown should simply have intituled its application: "In the matter of an application by the Attorney General under section 77E of the Evidence Ordinance for the issue of letters of request [etc.]..." In fact, however, the Crown included in the title to the proceedings the following: "BETWEEN The Attorney General Applicant and [the suspected person] Respondent". This was wrong. The application was an originating application that is to say, an application commencing the proceedings, not an application made in existing proceedings. But, being an originating application made ex parts, there was no one who could properly be made a respondent to it. The application did not involve and was not made in the course of any lis inter partes. The jurisdiction exercised by the High Court Judge under section 77E is perhaps similar in some ways to that exercised by a magistrate issuing a search warrant: compare the observations of Lord Diplock in In re Racal Communications Ltd. [1981] A.C. 374 at p. 380. Parties are never named (because there are no parties) in the title to an ex parte originating summons, or notice of motion. And this originating application ought to have been made by ex parte originating summons. I say that bemuse no rules of court which might have provided otherwise have been made under section 77E(5); and because 0.5, r.3 of the Rules of the Supreme Court provides as follows:-

"3. Proceedings by which an application is to be made to the High Court or a judge thereof under any written law must be begun by originating summons except where by these rules or by or under any written law the application in question is expressly required or authorized to be made by some other means."

However, when the Crown's application in the present case came before Barnett, J., as it did on 8th August 1989, the judge made the order for which the Crown asked. Whether he noticed the irregularity in the form of the originating application, but decided to ignore it, or whether he did not notice it all, I do not know and I do not pause to inquire. For present purposes it does not matter, although I would express the hope that in future originating applications of this sort will be made by ex parte originating summons in Form 11, Appendix A to the Rules of the Supreme Court in accordance with the provisions of 0.5, r.3 (to which I have already referred) and 0.7, r.2 (which prescribes the use of Form 11 for an ex parte originating summons).

6. After the judge made his order for letters of request to issue, the suspected person's solicitor applied (informally) to the Master for permission to inspect the documents filed in the Registry-in connection with the Crown's application. The right of persons to do so is regulated by 0.63, r.4 which h provides as follows:-

"4. (1) Any person shall, on payment of the prescribed fee, be entitled during such hours as the Registrar may direct to search for, inspect and obtain a copy of any of the following documents filed in the Registry, namely-

(a) the copy of any writ of summons or other originating process,

(b) any judgment or order given or made in court or the copy of any such judgment or order, and

(c) with the leave of the Court, which may be granted on an application made ex parte, any other document.

    (2) Nothing in the foregoing provisions shall be taken as preventing any party to a cause or matter searching for, inspecting and obtaining a copy of an affidavit or other document filed in the Registry in that cause or matter or filed therein before the commencement of that cause or matter but made with a view to its commencement."

7. The proceedings in which the Crown applied for and the judge made his order for letters of request to issue was a civil proceeding, not a criminal proceeding. The proceeding was a civil proceeding which was (or, at any rate, ought to have been) commenced by ex parte originating summons; it was therefore an "action": see section 2 (the definition section) of the Supreme Court ordinance, Cap. 2 in which "action" is defined as follows:-

"'Action means a civil proceeding commenced by writ of summons or in such other manner as may be prescribed by any law."

8. In the same section "cause" is defined as "any action or any criminal proceeding". So this civil proceeding, being an "action", is therefore a "cause" (If it had been a proceeding not in a "cause" it would have been a "matter", as that term is also defined in section 2.)

9. All this is important because the main argument for the suspected person in the present case is that he is a party to that "cause or matter" in which the order of 8th August 1989 was obtained. He is, he says, entitled to search for, inspect and obtain a copy of all the documents, including the affidavit in support, filed in connection with the Crown's application for the order.

10. But, in my judgment, he is not a party to the "cause or matter" which was commenced here by an originating process correctly made ex parte (although in the wrong form, and although incorrectly intituled) for the simple reason that to that process there are no parties.

11. 0.63, r.4(2) is therefore of no help to the suspected person.

12. The court can, however, grant him leave to inspect, etc., any document filed in the Registry under the provisions of 0.63, r.4(1)(c). Should it do so? It does not seem to me that it would be right to do so in a case like this, where the order for letters of request to issue is sought in connection with the prosecution of criminal proceeding's. It would, or might, inhibit the Crown in that connection if it knew, before it made its application for such an order, that the court might well make a further order whereby the Crown's evidence filed in support of the application would become available to the suspected person.

13. However, the Master did in fact make an order in favour of the suspected person in the widest terms. He ordered that his solicitors do have leave "to search and inspect the court files relating to these proceedings or relating to ex parte applications for the issue of letters of request and to obtain copies of any such documents that may be considered to be relevant".

14. This order cannot stand. The suspected person had no right to it under 0.63, r.4(2), as I have said. It was not a correct exercise of the Master's discretion to give him leave to inspect, etc., under 0.63, r.4(1)(c), at any rate not in such wide terms. I will therefore allow this appeal and set 'aside the order of the Master.

15. I will only add this. The suspected person, despite this judgment, has the same right as any other person, on payment of the prescribed fee, to search for, inspect and obtain a copy of the originating application by which the proceedings were commenced. This follows from the provisions of 0.63, r.4(1)(a). If the order of Barnett, J. dated 8th August 1989 had been made in court, the suspected person would also have had the right to obtain a copy of that order pursuant to the provisions of 0.63, r.4(l)(b). But, in fact, the order of Barnett, J. dated 8th August 1989 was made in Chambers, not in court, so the provisions of 0.63, r.4(1) (b) do not apply to it. It follows that so far as the originating application is concerned, but only as to that originating application, the suspected person does not need the leave of the court to conduct the required inspection, etc. The authorities on public interest immunity which were cited to me do not in any way militate against this. The suggestion which was, I think, at one stage made, that the Crown ought to be allowed in some way to keep its own originating process a secret between the Crown and the court, hidden from the suspected person, seems to me as ludicrous as it is sinister. There is no good reason why the public interest in bringing criminals to justice should outweigh the limited right which in the interests of open justice the provisions of 0.63, r.4(1)(a) and (b) extend to "any person" to inspect certain particular documents, that is to say the originating process, and any judgment or order made in court.

16. I will now hear the parties as to the costs of the suspected person's application to the Master and of this appeal; my present inclination, if no argument is successfully addressed to me to the contrary, would be in favour of making no order as to the costs either of the suspected person or of the Attorney-General.