GARY WILLIAM MOORE v. THE ROYAL HONG KONG JOCKEY CLUB

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal by the unsuccessful plaintiff, Mr. Gary Moore, in an action he brought against the defendant, the Royal Hong Kong Jockey Club. The action was heard by Jones, J. on two days in the middle of May 1989. He gave a reserved judgment on 25th May 1989 dismissing the action and thereby refusing the relief sought by Mr. Moore which comprised a number of declarations and injunctions relating to the true interpretation of a written immunity dated 10th March 1988 given to Mr. Moore by the Jockey Club and the question whether the Jockey Club were entitled to make use of a statement made by him on 5th May 1986 to an officer of the Independent Commission Against Corruption ("ICAC").

2. Most of the essential facts are to be found in an affidavit sworn on 28th April 1989 by Mr. Peter Anderson who at the time material to the action was one of the Assistant Directors of Operations with the ICAC. Mr. Anderson did not attend the trial of the action before Jones, J. but his affidavit was treated as his examination in chief when he was cross-examined and re-examined upon its contents before an examiner in London on 10th May 1989. The affidavit and a transcript of the examination became part of the evidence in the action and there is no real dispute between the parties as to the background facts it reveals.

3. The plaintiff Mr. Moore is a jockey who rode in Hong Kong between 1971 and 1986. He was very successful and was champion jockey seven times. Mr. Moore, as all jockeys in Hong Kong must be, was licensed by the Stewards of the Jockey Club. As is well known the Jockey Club controls horse racing and is responsible for framing rules for the regulation of race meetings and for all matters concerned with racing in Hong Kong. It is responsible for the enforcement of such rules.

4. The story begins as long ago as 20th February 1986. On the morning of that day, the ICAC arrested Mr. Moore and some twenty other persons, including two trainers and eleven jockeys on suspicion of involvement in fixing races. The Jockey Club had been informed about the plans the ICAC had for arresting these people and a policy decision had been made by the Jockey Club that those arrested would be suspended but that anyone subsequently released on bail by the ICAC would be reinstated.

5. Mr. Anderson stated that Mr. Moore was taken to the ICAC headquarters for questioning. At that time they had no evidence upon which he could be charged and no one knew whether or not he might be an important witness. The ICAC at that time were mainly concerned with trying to find, charge and prosecute those who were at the heart of a suspected syndicate which went under the name "The Shanghai Syndicate". The approach made to Mr. Moore was on the basis that some of those arrested might well have things to say about him so that it would be in his best interests to tell his side of the story first. He was also told that if others did implicate him it might well be that he would be charged and he was given the choice either to co-operate and avoid being charged or to say nothing and run the risk of being charged, if the evidence warranted it.

6. Mr. Anderson's affidavit continued by saying that during questioning which lasted several hours Mr. Moore denied ever having been involved in race fixing but that he made a statement on that day which contained admissions of breaches of the rules of racing - principally those related to the prohibition of betting by jockeys. Mr. Moore also admitted that for much of his riding career in Hong Kong he had had what he called "a punting relationship" with Mr. Chan Wai Lim. He accepted that in return for information regarding the prospects of his rides Mr. Chan had accepted bets on his behalf on terms that if he won Mr. Chan would pay him any profits but if he lost Mr. Chan would bear his losses.

7. Mr. Anderson said that he had formed the impression that Mr. Moore was very concerned to co-operate with the ICAC because he had already decided to end his career in Hong Kong and was due to leave shortly for France to take up a position as a retained jockey; and the racing season there was due to start in early March. The ICAC knew that Mr. Moore's knowledge of racing in Hong Kong would be of great assistance in this inquiry and suspected that Mr. Chan was the key figure in the race fixing syndicate they were out to smash and so, Mr. Anderson said, he told Mr. Moore that if he co-operated with the ICAC and told him all he knew of the operations of this syndicate he would be released on bail and allowed to leave Hong Kong.

8. To be sure of Mr. Moore's co-operation, Mr. Anderson said that he had assured him that any statements he would make and any of that he had already made, would be considered "non-prejudicial" and could not be used against him in any Court or disciplinary proceedings. He indicated to Mr. Moore that the ICAC would not disclose the contents of any of those statements to the Jockey Club for use against him in disciplinary proceedings. Mr. Anderson went on to say that he gave this undertaking and assurance to Mr. Moore because his basic objective was to obtain his assistance as a potential witness in any criminal proceedings that might be taken against others based on the contents of his statements. He had tried to build up a good understanding with Mr. Moore so that he would feel duty bound to return and give evidence in Court. The quid pro quo of the undertaking at that time was that Mr. Moore would return to Hong Kong and give evidence.

9. We were told that Mr. Moore made additional statements to the ICAC between 20th and 27th February 1986 (four statements) and a further one on 5th May 1986 in London and a final one in Hawaii on 12th February 1987. Mr. Anderson drew attention to the fact that on one of the statements which began on 25th February and ended on 27th the following had been written at the top and signed by him:

10. Mr. Anderson acknowledged that although the same formula did not appear in all the other statements, Mr. Moore was clearly given to understand by him that all the statements he made would be subject to the same assurance and undertaking. This included statements he had made to other officers of the ICAC before Mr. Anderson took the matter over. Mr. Anderson referred to a letter dated 14th December 1987 addressed to the ICAC by Mr. Moore's solicitors in which confirmation was sought of Mr. Moore's understanding that all his statements were "non-prejudicial".

11. Later in his affidavit, Mr. Anderson indicated that he believed the Jockey Club would recognise that getting Mr. Moore to stand up in Court and give evidence would be in the greater public interest than any interest which demanded imposing penalties for breaches of the Rules of Racing. He went on to say:

12. Mr. Anderson explained that it was also implicit, so far as he was concerned, in the arrangements that he would not give evidence in any disciplinary proceedings or any criminal proceedings against Mr. Moore about the admissions that he had made to the ICAC which were recorded in the statements.

13. Mr. Moore left for France on 28th February 1986 and Mr. Anderson states that he continued to help the ICAC with the inquiries and it was as a result of a request made by him that the additional statements were made respectively in England and Hawaii.

14. I interpolate here to say that a jockey named Trotter was charged with conspiracy together with Mr. Chan and others on 10th December 1986 and a nolle prosequi was entered in respect of him two days later. On 21st January 1987 Trotter was disqualified by the Stewards of the Jockey Club for 7 months backdated to 1st July 1986 and on the following day Trotter's solicitors gave the Jockey Club the committal hearing papers which had been served on Mr. Trotter when it was intended that he would face a conspiracy charge in the Courts. In his affidavit Mr. Anderson explained that this was something that neither he nor Mr. Moore had foreseen. It had not occurred to either of them that Mr. Moore's statements, including his statement of 5th May 1986, which is particularly relevant in this action, would fall into the hands of the Jockey Club indirectly through another person who might subsequently be charged. He said that he was quite sure that the Jockey Club had very clearly understood that as far as the ICAC were concerned the statements Mr. Moore had made to them and which they had obtained with the "Trotter papers" could not be used without the ICAC's permission.

15. Mr. Anderson went into some detail about an idea the ICAC had that Mr. Moore's credibility as a potential witness would be improved if it could be shown that he had been charged in disciplinary proceedings and dealt with by the Jockey Club before he gave evidence in Court. However, Mr. Mooe would not accept this proposal when Mr. Anderson approached him in late October 1987 in France and Mr. Moore indicated that he would not be prepared to appear as a prosecution witness at the trial of Mr. Chan on those terms.

16. On 15th October 1987 an indictment was drawn up by the DPP on behalf of the Attorney General charging Mr. Chan Wai Lim and four other men with conspiracy to cheat at gambling contrary to common law and to section 16(1)(a) of the Gambling ordinance, Cap.148. It was averred that the conspiracy had taken place between 20th January 1984 and 19th February 1986 in Hong Kong.

17. I note here that on 2nd November 1987 the solicitors acting for the Jockey Club received copies of Mr. Moore's statements made to the ICAC and they were more formally handed over to the Jockey Club on 29th December 1987 when advice had been given that it was lawful for the ICAC to hand those statements over to the Jockey Club.

18. The Jockey Club accepted Mr. Moore's stand and, at the request of the DPP on behalf of the ICAC, decided that, subject to certain conditions, Mr. Moore should be granted complete immunity from disciplinary proceedings in relation to any breaches of the Rules of Racing revealed in his own statements or revealed by him when giving evidence in Court at the trial of Mr. Chan Wai Lim.

19. The final form of the immunity letter sent to Mr. Moore and agreed to by him was in these terms:

20. The trial of Mr. Chan Wai Lim and the four men jointly indicted with him began in the high Court before O'Dea, J. and a jury on the scheduled date: 2nd May 1988. Mr. Moore gave evidence for the prosecution from 17th to 20th May. He was released by the judge and went back to France.

21. Another jockey who had testified for the prosecution finished giving evidence on 25th May. In the evening of that day he spoke to a member of the jury in a bar in Central District. When the Court reassembled on the following morning, the juror reported what had happened to O'Dea, J. After two days deliberations the learned judge discharged the jury and the trial was thereby aborted.

22. Mr. Anderson stated in his affidavit that he had contacted Mr. Moore in France and asked him if he would attend Mr. Chan's re-trial, then scheduled to begin on 16th January 1989. Mr. Moore first said that he would but later changed his mind, and on 23rd September 1988 he made a formal statement to the ICAC that he would not give evidence again, followed by a formal letter to the Jockey Club in the same vein six days later.

23. On 5th November 1988 the Board of the Jockey Club decided to regard the immunity they had granted to Mr. Moore as being null and void, and on 10th November they sent a letter to Mr. Moore charging him with 71 breaches of the Rules of Racing and informing him that the enquiry was fixed for 12th December. Mr. Moore issued his writ on 21st November 1988 and it was accompanied by a Statement of Claim.

24. In his Statement of Claim Mr. Moore pleaded the essential terms of the immunity agreement dated 10th March 1988 and that, having returned to Hong Kong from France pursuant to the agreement, and in fulfilment of the conditions, he had attended and given viva voce evidence at the trial of Mr. Chan which had begun on the scheduled date and had continued until the jury had been discharged and the trial ended. It was averred that Mr. Moore's attendance at the "second trial" or "fresh trial" or "new trial" or "re-trial" was not required or provided for by the terms of the agreement.

25. It is then pleaded that wrongfully and in breach of the agreement the Jockey Club had resolved to prefer charges against Mr. Moore in respect of the alleged contraventions of the rules of racing disclosed in one or more of the sources set out in clause 1(a), (b) and (c) of the agreement and that the Jockey Club threatened unless restrained to hold that disciplinary inquiry in respect of the alleged contraventions on 12th December 1988 and to adduce evidence of a statement allegedly made by Mr. Moore which the Jockey Club had in his possession at the time of the agreement.

26. The pleadings continue as follows: that further or alternatively all the statements made by Mr. Moore referred to in the agreement had been made expressly subject to another agreement with the ICAC to the effect that none of the contents of these statements would be used in any subsequent trial or disciplinary proceedings against Mr. Moore; nor would the contents of these statements be disclosed at any time by the ICAC to anyone, in particular the Jockey Club.

27. I will not refer to all the rest of the pleading but it is averred further or in the alternative that the Jockey Club knew that the statements in question had been given by Mr. Moore to the ICAC in confidence and in reliance on the agreement with the ICAC and that the public interest in investigation and prosecution of criminals by the ICAC demanded that such confidences and such agreements made by the ICAC with potential witnesses should not deliberately be underminded or interfered with by a third party.

28. Mr. Moore sought declarations that he had fulfilled the conditions of the immunity agreement and that that agreement did not require him to give evidence at the re-trial; that the Jockey Club resolution to go ahead with the disciplinary inquiry constituted a breach of its duty to act fairly and was a breach of the rules of natural justice, and that the holding of the discipline inquiry and the admission at the inquiry of the evidence given in confidence by Mr. Moore would constitute a breach of its duty to act fairly or would be unlawful.

29. Declarations were also sought that the Jockey Club was not entitled to prefer the disciplinary charges proposed to be laid against Mr. Moore or to hold the planned inquiry. An injunction was sought restraining the Jockey Club from holding the scheduled inquiry and/or from using at such an inquiry any of the statements made to the ICAC by Mr. Moore.

30. In his judgment the learned judge summarised the competing arguments that had been addressed to him and observed that in his view it was significant that Mr. Chan would not be able to plead autrefois acquit at a re-trial because the jury had not returned a verdict. The circumstances, he felt, showed that the trial was only "part heard" when the judge had discharged the jury with the result that the trial did not come within the meaning of the terms of the agreement made on 10th March 1988.

31. The judge went on to say that the issue could in any event be decided as a matter of construction. He asked himself the question whether the words set out in the agreement merely restricted the plaintiff to attending the trial that was due to commence on 2nd May 1988. He set out the material parts of paragraph 2.1 of the immunity agreement and said that those words were plain and unambiguous. They did not, in his judgment, require the plaintiff to attend only once as had been submitted on behalf of Mr. Moore, but on each and every occasion when requested for the trial. Accordingly, he considered, even if the trial had been completed, the agreement necessarily included a re-trial or any other trial for the offences referred to relating to Mr. Chan. He held that. Mr. Moore's obligations did not cease once he had gone into the witness box and completed his evidence. As a result he was satisfied that upon a proper construction of the relevant agreement the plaintiff was still contractually bound to attend the Court for the re-trial.

32. As to the second issue, after reviewing the opposing submissions in summary, the judge pointed out that the Jockey Club had not been a party to the ICAC agreement about the use to which the statements made by Mr. Moore could be put. Thus, in his view, that agreement was not relevant to the instant proceedings. He went on to express the opinion that it would be a startling proposition if an agreement as to confidentiality between Mr. Moore and the ICAC could result in the Jockey Club being precluded from taking disciplinary proceedings when Mr. Moore was in clear breach of his own obligations under his agreement with the Jockey Club. That agreement had been entered into with reluctance by the Jockey Club at the request of those responsible for criminal prosecutions because the Stewards had accepted that the public interest to prosecute the criminal offences against the core members of the syndicate outweighed the interest of the Jockey Club to institute disciplinary proceedings. The judge said that he would accept that the agreement as to confidentiality between the ICAC and the plaintiff was in no way binding on the defendant, and he added:

33. On behalf of Mr. Moore, Mr. Clarke submitted to us that the words used in the immunity agreement made it quite plain that the condition to be fulfilled by Mr. Moore was that he should attend and give evidence at the trial of Mr. Chan then scheduled to take place from 2nd May 1988, if and when requested to do so, as in the event he had been. This was an obligation which related to an identified and specifically defined trial. The immunity did not take the form exemplified in R. v. Tsui Lai-ying [1987] HKLR 871 and set out on page 871 of the judgment of Silke, J.A. (as he then was) delivering the judgment of the Court. The immunity there was given on condition that the person concerned gave full and true evidence at a certain trial on a specific charge "and at any subsequent trial or trials arising out of the above mentioned offences". If that was what was meant, contends Mr. Clarke, a formula on those lines could and would have been employed in the present case.

34. It was, in his submission, as wrong to read the word "when" at the beginning of paragraph 2.1 as if it were "whenever", as it was wrong to insert after the word "trial" in line 4, the words "or trials". It was also wrong to read that paragraph as though there was no specific reference to the trial scheduled to take place from 2nd May 1988. All this was wrong because the ordinary processes of interpretation could not produce such changes in the wording employed. The re-trial of Mr. Chan and the others which took place before Ryan, J. in June 1989, was not by any fair use of language the trial referred to in the immunity agreement. It was a different trial because a differently constituted Court was involved and it was held at a different time. It was, Mr. Clarke pointed out, the plain fact that Mr. Moore had attended in Hong Kong when he was required by the ICAC to give evidence at Chan's trial; he had given evidence and had thereby fulfilled the conditions for the immunity relied upon. The judge, suggested Mr. Clarke, had been wrong in holding that the trial before O'Dea, J. was only part heard. The re-trial could not in any sense be regarded as an adjournment or a continuance of the first trial.

35. Mr. Clarke further submitted that the question whether the trial which had started on 2nd May 1988 was the trial referred to in the immunity agreement was one that had to be capable of being answered when the trial began and when Mr. Moore gave evidence. No one could sensibly suggest that the trial that had in fact begun on 2nd May 1988 was not the one referred to in the agreement; any other conclusion would offend common sense. Mr. Clarke argued that the matrix of the surrounding circumstances showed quite clearly that the intention was that the immunity should operate as soon as Mr. Moore stepped into the witness box and that he should not be at risk of disciplinary proceedings in respect of anything that was said thereafter because without that immunity it was clear that he would not have given evidence and any evidence that he did give would be that of a person who had an interest of his own to serve. There was, he suggested, no warrant for construing the relevant paragraph as if there was a reference to the "completed trial of one Chan ....".

36. It is as well, I feel, to begin an examination of the true meaning to be given to the relevant part in the immunity agreement by noting that the Shorter OED gives as one of the meanings of the word "trial" the following: "1. Law. The examination and determination of a cause by a judicial tribunal." The Concise Oxford Dictionary includes this definition of "trial": "3. Judicial examination and determination of issues between parties by judge with or without jury or by referee etc.". And Jowitt's Dictionary of Englisn Law 2nd Edition, 1977) tells us, inter alia, that the word "trial" is "the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. A trial is the finding out by dueexamination the truth of the point in issue or question between the parties, whereupon judgment may be given (Co. Litt. 124b)." That definitions of that kind provide the natural interpretation of the word "trial" finds support in Gardner Ltd. v. Sheffield Bros. [1978] 1 WLR 916 (CA), a case cited by the judge, and in the Canadian case of Catherwood v. Thompson [1958] O.R. 326 noted at p.316 of the 1986 Supplement to Stroud's Judicial Dictionary.

37. Mr. Clarke has drawn our attention to various passages in Archbold, particularly paragraph 4-37, where the authors mention the variety of circumstances which may result in the defendant "being re-tried" - for example an irregularity which results in the jury being discharged; a failure by the jury to agree upon a verdict; and a re-trial being ordered by the Court of Appeal. There can be no doubt that practitioners talk about re-trials in all these differing circumstances but in my judgment this does not help to construe what is meant by the word "trial" in the context of the language employed in the agreement we have to consider.

38. It is to be noted that the obligation undertaken by Mr. Moore by paragraph 2.1 is that he will attend in Hong Kong both for interview by the ICAC and to give evidence at the trial of Mr. Chan "if and when requested so to do by the ICAC ..... with respect to the charge .... preferred against [Mr. Chan]" in the attached copy of the indictment, and the trial referred to is one which is "presently scheduled to take place from and including the 2nd day of way 1988". I understand that Mr. Clarke concedes that if the trial date had been altered to a later date Mr. Moore would have been obliged, if he wanted to claim his immunity, to give evidence at the adjourned trial. It seems to me that by the wording employed, a request by the ICAC could be made at any time and any number of times provided it was (leaving aside attendance for interviews) to give evidence at the trial of, inter alia, Mr. Chan on the particular indictment in question.

39. With due respect to Mr. Clarke's arguments, I do not myself feel that this interpretation does violence to the language used when one bears in mind the background of events and the whole object for which the immunity was conditionally proffered and accepted. In my judgment, by the words that they used, the parties did not agree that Mr. Moore would obtain an indefeasible immunity if, after giving evidence, the trial was aborted and did not result in a conviction or acquittal. He was requested by the ICAC to attend a trial of the same Mr. Chan on the same indictment. He declined to attend. Unless it is inescapable, we must, I think, strive against an interpretation that would rob the contractual arrangements of all efficacy. The whole purpose of Mr. Moore giving evidence before the judge and the jury was so that it would form part of the evidence the jury would have to consider when they retired after the judge's summing up. Then Mr. Moore could rely upon the immunity spelled out in the agreement. The evidence he gave at the aborted trial (through no fault of his own, it is true) served no purpose at all. If the agreement is not isolated from the matrix of facts in which it was positioned, it seems to me that the fact that the parties had in mind that immunity would arise in favour of Mr. Moore only if the trial was completed is so obvious that it went without saying.

40. It is not necessary to decide what to my mind would perhaps be a more difficult question - whether Mr. Moore could still have claimed immunity under the agreement if Mr. Chan had been tried on a wholly different indictment or at a re-trial ordered by the Court of Appeal after quashing his conviction.

41. I have reached the firm conclusion that the Jockey Club's submissions on the true interpretation of the relevant paragraph put forward on their behalf by Mr. Ching is the correct one. I therefore agree with the judge's construction. However, with all due respect, in my view it is not that Mr. Moore was still contractually bound to attend the Court for the re-trial (see page 11 of the transcript of the judgment) but rather that since he declined to do so he cannot now claim the immunity that was offered to him in writing on 10th March 1988.

42. I now turn to the second issue upon which Mr. Clarke submitted that the evidence not in dispute had shown that either when the Jockey Club obtained a copy of the statements made by Mr. Moore (the statement of 5th May 1986 seems to be the only one which is really material to the controversy as it now stands) or subsequently, the Jockey Club knew of the confidential character of the statement and the basis upon which it was given and yet the they had indicated that they intended to use that statement to Mr. Moore's prejudice in the threatened disciplinary proceedings. Mr. Clarke submitted that a duty of confidence arose when confidential information came to the knowledge of a person in circumstances where the confidant had notice or had agreed that the information was confidential. On Mr. Moore's behalf, Mr. Clarke placed reliance on the following facts:

43. Mr. Clarke contended that the obligation of a third party who obtained such information and knew or came to know that it had originally been communicated in confidence, not to use the information (and especially not to use it to the confider's detriment) without his consent was one that was not dependent on there being a contract between the third party and the confider, for it was an obligation which arose because the conscience of the recipient was affected. The judge was therefore wrong, in Mr. Clarke's submission, to look at the matter as if Mr. Moore's claim had been founded in contract. There could be no defence to a claim for breach of confidence by asserting that Mr. Moore had failed to honour some agreement with the third party. The information given in confidence did not cease to be confidential because Mr. Moore failed to return a second time to Hong Kong. He had never agreed to surrender any claim he had based in confidence. Mr. Clarke submitted that the express agreement by the Jockey Club not to publish Mr. Moore's statements to other racing authorities gave Mr. Moore an additional contractual right and such an express contractual right arising in his favour could not be construed as an implied agreement by him to give up rights outside that contract which he already had.

44. Mr. Clarke also submitted that the maxim relied upon by the Jockey Club that he who comes to equity must come with clean hands had no relevance to the issues on the facts in this case. It was, said Mr. Clarke, good sense, good law and sound policy if the Court were to accept that the Jockey Club was not entitled to disregard the whole basis upon which Mr. Moore gave his assistance to the ICAC. Mr. Clarke relied on the averments that had been pleaded in Mr. Moore's Statement of Claim, to the effect that the public interest in the investigation and prosecution of criminals by the ICAC demanded that confidences of the kind given by Mr. Moore should not be breached or interfered with by a third party.

45. In my judgment this matter can be resolved without the assistance of any of the authorities to which we were referred. Despite Mr. Clarke's forceful submissions, it seems to me quite plain that it is implicit by what is said in paragraph 3 of the immunity agreement that Mr. Moore accepted that if he did not fulfil the conditions set out in paragraph 2 then the Jockey Club would be free to publish or supply or disclose the contents of the statements he made to the ICAC to any other racing authority or Jockey Club or third party. I do not see how that paragraph, which was inserted in that form at his own lawyers' request, can be read in any other way. If that is the correct construction of the paragraph, then in my judgment it follows that Mr. Moore impliedly consulted to the Jockey Club making use of the contents of his statements (which no doubt were originally given to the ICAC in confidence) if he did not fulfil the conditions.

46. After all, in paragraph 1, those statements are particularly mentioned, and they need to be referred to if one is to determine the full extent of the absolute immunity therein provided for. I find it impossible to accept that anybody who had been "fully and competently advised by independent legal advisers" as Mr. Moore acknowledges at the foot of the agreement would have signed such a document if he had had any reservations about the use to which the statements would be put by the Jockey Club itself if for one reason or another he was minded not to fulfil the obligations which would give rise to the immunity. Had the understanding between the parties been that should Mr. Moore not fulfil those obligations, he could be proceeded against by the Jockey Club for any of the contraventions of the Rules of Racing disclosed in the interviews mentioned in paragraph 1, but that what he had said at those interviews could not be used against him at the disciplinary enquiry, the immunity letter would surely have been quite differently worded.

47. If Mr. Moore had not intended to waive any rights based on confidentiality he thought he had it would have been unnecessary for the agreement specifically to provide that if he gave evidence at the trial he would be afforded absolute immunity with respect to the contraventions of Jockey Club's Rules of Racing disclosed in the interviews or otherwise as referred to in paragraph 1 of the letter.

48. Moreover, Mr. Clarke accepted that there was no suggestion that the Jockey Club had got hold of the statement of 5th May 1986 (or indeed any of the other statements) improperly. In my view Mr. Moore has failed to establish any ground upon which the Court could intervene in the circumstances to prevent the Jockey Club from making proper use of that statement by causing it to be disclosed in any disciplinary inquiry that they are, in my judgment, free to hold as a result of Mr. Moore declining to attend and give evidence at the trial of Mr. Chan which took place before Ryan, J. after the trial which commenced on 2nd May 1988 was aborted. I have, therefore, reached the same conclusion as the judge on this issue, but by different route.

49. I do not think that Mr. Moore was entitled to any of the declarations or injunctions that he sought to obtain by his action. I would, therefore, dismiss this appeal.

Kempster, J.A:

50. I gratefully adopt the meticulous summary of material facts just given by Fuad V-P. We reach the same conclusions by parity of reasoning.

51. The outcome of the alternative limb in the plaintiff's appeal, based on his claim to confidentiality in the statements made to ICAC, is as dependant on the construction of the agreement comprised in the letter dated 10 March 1988 as that of his primary claim to be a party who has discharged his obligations thereunder and is therefore entitled to enforce it.

52. On the face of the document it is apparent that the factors which gave rise to its signature were on the one hand the desire of the prosecuting authorities to secure the plaintiff's testimony at a trial determinative of the guilt or innocence of Chan Wai Lim and on the other the desire of the plaintiff to obviate the possibility both of such adverse findings as might result from the institution of an inquiry substantially based on contraventions admitted in statements which he regarded as confidentital or admitted by him in an open court and on the further publication of those embarrassing statements albeit their substance might, by the time he left the witness box, be in public domain. His riding career was at stake.

53. The terms of the agreement do not follow those of the standard form of immunity offered on behalf of the Attorney General which are set out on p 871 of R v Tsui Lai Ying & Ors [1987] HKLR 857 and include the words "and at any subsequent trial or trials arising out of the above- mentioned offences ... ". Surely, it is contended on the plaintiff's behalf, the parties would expressly have provided for his attendance at such trials or retrials as might have been required to achieve finality had they so intended. They did. In this conclusion, as opposed to that I have reached in relation to confidentiality, no recourse is made to implication.

54. To fulfill his part of the bargain the plaintiff was required to give viva voce evidence at Chan's trial on the charge particularised "if and when requested so to do by the ICAC" on terms agreed between him and them. The meaning of "trial" in this context must comprehend what transpire to be mistrials as well as retrials; providing that any order made pursuant to s 83F(1) of the Criminal Procedure Ordinance (Cap 221) specifies the same charge. The addition of "and which trial is presently scheduled to take place from and including the second day of May 1988 ("the Chan trial")" is of neutral import.

55. It follows that insofar as the defendants seek to uphold paragraph 3 (ii) of their Re-Re-Amended Defence which reads " ... the mistrial declared by the learned judge on May 30, 1988 is a nullity at law and/or is not a trial within the meaning of the terms in the said agreement they fail. Insofar, however, as they seek to uphold paragraph 6C (ii): -

they succeed. Being in breach of his obligations under the agreement by refusing to attend the second trial the plaintiff, as Jones J found, cannot enforce its terms against the defendants. The inquiry in question was one in which, by paragraph 6B (ii), the defendants had proclaimed their intention of using the statement made on 5 May 1986. The contractual effect of the agreement in relation to confidentiality was therefore in issue.

56. I have made particular reference to the pleadings on account of the disposition of leading counsel on both sides to ignore them. As Scrutton LJ pointed out in Blay v Pollard [1930] 1KB 628 at p 634: -

He continued: -

In Rolled Steel Products Ltd v BCC [1985] 3 All ER 52 at p 95 Lawton LJ emphasized "the need for precision and expedition when dealing with pleading points."

57. Returning to the agreement, on the footing that he fulfilled his part of the bargain, the defendants promised the plaintiff both absolute immunity with respect, inter alia, to contraventions disclosed in the statements and also that, despite the nature of their contents, those statements would not be republished. The other side of the coin and the necessary implication arising was, surely, that the defendants might rely on such contraventions at an inquiry and might allow further publication of the statements if he did not. The effect of the agreement was thus to waive the plaintiff's claim to confidentially and to license the defendants to use and publish his statements in the event of his own breach.

58. Being in breach the plaintiff, as Jones J also correctly found, has no remedy in confidence.

59. I too would dismiss this appeal.

Macdougall, J.A.:

60. Like my Lord the Vice-President I do not find it necessary to consider whether the word "trial" in the letter of immunity includes a retrial ordered pursuant to s.83F of the Criminal Procedure Ordinance. In my view it is sufficient that it necessarily means a completed trial as distinct from a mistrial.

61. Having said that, I agree with my brethren that for the reasons they have given this appeal should be dismissed.

Fuad, V.-P.:

62. In handing down these judgments dismissing this appeal we make an order nisi that the plaintiff/appellant pays the defendant/respondent the costs of the appeal.