HO SHAU HONG v. THE COMMISSIONER OF POLICE AND ANOTHER

1986 No. MP 1593

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The applicant seeks declarations (i) that the Police are limited in their duties and functions by Section 10 of the Police Force Ordinance and that these do not include the giving of evidence before the Disciplinary Committee of the Royal Hong Kong Jockey Club ("the Jockey Club") (ii) that the Police Force Ordinance does not authorise the Commissioner of Police or his officers to disclose to the Disciplinary Committee information in their possession of alleged conduct by the applicant detrimental to the interest or reputation of the Jockey Club; (iii) that it is unlawful for the Commissioner and his officers to disclose to the Disciplinary Committee information obtained in the course of a criminal investigation; (iv) that the Commissioner and his Officers may not supply such information to the Disciplinary Committee.

2. The matter arises out of a police operation code named "Boxbush" conducted by the officers of the Organised and Serious Crimes Bureau against organised and syndicated book-making activities. These officers carried out three raids on the 17th April 1985.

3. The first was carried out at 2115 hours by a large party of police officers on premises situated at Flat 1,12B, Boardway, 12/F, Stage 8, Mei Foo Sun Chuen under Gambling Authorisation 158024. The officers found that the premises were occupied by 9 Chinese males (D1 to D9) who were surrounded by articles which were seized and which included telephones, tape recorders, betting slips and sheets, calculators and racing newspapers. These clearly indicated that the occupants were conducting an illegal betting business.

4. The second raid was carried out at 2130 hours on premises at Room 601, Block 12, Valley Road Estate under a Gambling Authorisation S/N 159043. The door was answered by D10 and a cassette tape which was removed from a cassette tape recorder attached to a telephone was seized.

5. The third raid was carried out at 2145 hours on the 17th of April on premises at 11A Tat Chee Avenue, Yau Yat Chuen under Search Warrant No. Western 1675/85. When the police knocked at these premises, the applicant answered the door and it is alleged that under questioning, he stated that he had been betting on horse racing in his son's room. This room was searched and a "Super-Winner" racing booklet was found and seized.

6. As a result of the raids 11 people, including the applicant who was Dll, were charged with gambling offences. The applicant faced four charges of betting with a bookmaker.

7. The police allege that : "As a result of the examination of documentary exhibits and some tape recordings found in all three premises, it was established that the (applicant) laid bets on four races which were received by D1-D8. It was further established that particulars of these transactions were relayed by telephone to D10, who acted as a record centre for the operation. The record was maintained in the form of a tape recording seized from D10's premises. "

8. The four charges were laid against the applicant on the 28th December 1985. He pleaded not guilty to these charges and on the 4th March 1986 all were dismissed after the Crown offered no evidence following a submission made on behalf of the applicant on the 3rd March that the offences were summary and that the charges had been laid outside the six months limitation period.

9. The applicant now seeks to obtain declarations from this Court which will prevent the police officers involved in the investigation from giving evidence before a Jockey Club Disciplinary Committee constituted to determine whether the applicant has been guilty of conduct detrimental to the interests or reputation of the Club.

10. Mr. Mills-Owens Q.C., who appeared with Mr. Hampton for the applicant, submitted, firstly, that the police force in Hong Kong is a creature of statute and has by virtue of the applicable statutory provisions, in particular s.10 of the Police Force Ordinance, limited powers which do not allow "the police to supply to private bodies the yield of raids carried out pursuant to either Gambling Authorizations or Search Warrants. " I will, hereafter, refer to these documents as "warrants".

11. Mr. Mills-Owens further argued, relying principally upon Attorney General v. Ocean Timber Transportation Ltd.⁽¹⁾ that where evidence, which term he used in a wide sense to include evidence of observations as well as documents and articles seized, was obtained by virtue of warrants the police may not utilize that evidence for purposes other than the prosecution of offences. This involves the contention that the principles in that case can be extended to cover all of the evidence obtained, rather than just the documents and articles seized, and to cover an application by a person whether or not he has any possessory rights in the documents and articles seized.

12. Mr. Mills-Owens, final contention was that it was against the public interest that evidence obtained under warrants for the purpose of initiating criminal prosecutions should be disclosed to a private club on request for a private purpose. He contended that, having regard to the way in which the material was obtained, it is clothed with "confidential status" and cannot be used for any purpose other than that for which it was authorized to be obtained. He submitted, in effect, that, as the law allowed it to be obtained for a special limited purpose, the public interest requires that it be regarded as confidential except when used for that purpose.

13. Mr. Findlay Q.C. and Mr. Whaley, who appeared for the 1st Respondent, and Mr. Ching Q.C. and Mr. Stone, who appeared for the second Respondent, contended that there was no limitation which would have the effect of preventing police officers, as individual members of the community, from giving evidence to a private enquiry even where the evidence was obtained in the course of their duties.

14. They contended that the principles in the Ocean Timber Transportation^(l) case had no application to the present situation but were limited to a situation where a person with possessory rights in articles seized was making complaint as to an intended extraneous use of them by the police.

15. They submitted that public interest was not an issue in the matter as public interest privilege extended only to information given in confidence, which was not the case here, and that if, contrary to this submission, public interest did fall to be considered, given that the Jockey Club was a public body under the Prevention of Bribery Ordinance and that it was seeking to discipline a member for illegal gambling the public interest was clearly on the side of disclosure.

16. The arguments as advanced do not precisely frame the three questions which I set out below but, in my view, the questions encompass all of the matters raised for determination.

17. Firstly, would the police officers be acting ultra vires in giving evidence as to matters, knowledge of which came to them in the course of their investigations of criminal offences, to an enquiry being held by a private club to discipline one of its members.

18. Secondly as the documents and articles were seized under warrants is the applicant entitled, in accordance with the principles enunciated in the Ocean Timber Transportation⁽¹⁾ case, to a declaration that the police officers are not permitted to use the evidence,giving the word the wide sense contended for, which was obtained at the time of the execution of the warrants other than for the purpose for which it was authorized to be obtained by the warrants i.e. the prosecution of criminal offences.

19. Thirdly, does the public interest require that the evidence be used only for the purpose for which it was obtained i.e. the prosecution of criminal offences, either because knowledge of it came to the police officers in the course of their investigations or because knowledge of it came to them by virtue of the execution of warrants.

The Ultra Vires Argument

20. Mr. Mills-Owens submitted, when dealing with the first question, that the Hong Kong Police Force was a creature of statute. There was nothing placed before me to satisfy me that he was wrong in this contention. He submitted further that the Police Force could legally do only what the relevant statutes, in particular s. 10, permitted either expressly or by necessary implication and that, citing Wade on Administrative Law:

"What is not permitted is forbidden. This is the straight doctrine of ultra vires, and it applies in full force to most of the organs of Government. " (Wade on Administrative Law at 211)

21. Before examining this submission, one must look with care at what is proposed to be done. The Jockey Club has sought the assistance of the Commissioner of Police- it has asked that certain officers come to give evidence before an enquiry which it intends to carry out as to matters of which they have knowledge. The Commissioner has "authorized" the officers to come. (Paragraph 7 of the affidavit of Mr. Brian Webster, an assistant Commissioner of Police) They will, however, come as individuals to give evidence as to facts within their knowledge. It is of course true that their knowledge carne to them in the course of their duties as police officers. Mr. Mills-Owens, while acknowledging that other ordinances give specific powers to the police, said that their powers generally were set out in s.10 of the Police Force Ordinance. This section it is to be noted does not mention the "powers" of the "police". What it does is to set out the "duties of the police force". It is true that nowhere therein does it, expressly or by implication, impose a duty on the police force to assist private clubs in disciplinary enquiries. Mr. Mills-Owens argues, this being so, that there is no power given to the police to participate in such enquiry. It may well be that the "police force” has no power to participate officially in such an enquiry. This however is not what is sought to be done in the present case. The Jockey Club is asking that certain individuals who are police officers come to give evidence at the enquiry. If they are willing to do so and if the Commissioner raises no objection to their so-doing, I can see no reason, arising from any suggested limitation on the powers of the police force, why they should not do so. They will not, when so doing, be carrying out any function as police officers under the Police Force Ordinance but will at the request of the Jockey Club, with the authorization of the Commissioner, go, as individuals, to give evidence at a private enquiry. It may well be that the Commissioner has no power to order them so to do and that he has no power to take a formal part in the enquiry, but it is not suggested that the Commissioner is giving orders to give to the officers concerned or that he or they are taking part as Police Commissioner or as police officers in the enquiry. The issue, it seems to me is not one of ultra vires but is whether or not it is proper for police officers to give evidence revealing matters knowledge of which came to them in the course of their duties. I will deal with the argument that it is against the public interest for police officers to give such evidence in such proceeding when I turn to the third question.

The Argument based on the ocean Timber Transportation Case

22. I turn now to the second question. Mr. Mills-Owens relied upon The Attorney General v. Ocean Timber Transportation Limited⁽¹⁾, where the extent of the authority of the police to disclose to a third party documents obtained by search warrants was considered. He sought to extend the principles enunciated therein to cover all evidence gathered at the time of the execution of a warrant. Mr. Findlay also relied upon this decision arguing that what it held was that the Court can only properly concern itself with the protection of property rights in the goods and that the present applicant was not entitled to any such protection.

23. In that case the Hong Kong Police, having received information from the Royal Fiji Police Force and suspecting that certain criminal offences might have been committed by directors of the respondent company, obtained a search warrant under section 50 of the Police Force Ordinance, entered and searched the premises of the respondent and seized a number of documents belonging to it. The H.K. Police proposed to provide copies of these documents to the Royal Fiji Police Force at its request. The respondent company objected to this disclosure and the Court of Appeal held that where:

"A statute authorises an official to do an act which necessarily interferes with the general rights of one of the Queen's subjects, such interference must not exceed what is reasonably necessary to attain the object of the act authorised. In this case, the object of the seizure under section 50(7) of the Police Force Ordinance was to enable the police to obtain evidence which might assist in the conviction of a person for an offence triable in the Courts of Hong Kong. " (Headrote)

The Court went on to hold that the:

"Legislation permitted the respondents' ownership rights to be invaded to a limit to the extent that those limits would clearly be exceeded if the contents of the respondent's private documents or copies of them were provided to the Royal Fiji Police against the respondent's wishes. The overwhelming public interest demanded that the Court should prevent the respondent's possessory right in the documents from being threatened. " (Headnote)

24. For the purpose of the present application, it is necessary to look at the words section 50(7) of the Police Force Ordinance and section 23(2) of the Gambling Ordinance These sections read as follows

"50(7)          Whenever it appears to a magistrate upon the oath of any person that there is reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom or any other article or chattel which may throw light on the character or activities of any person liable to apprehension under this section or on the character or activities of the associates of any such person, such magistrate may be warrant directed to any police officer empower him with such assistants as may be necessary by day or by night -

 

 

"23(2)        A police officer to whom an authorization is issued under subsection (1), and any other police officer acting under his direction may –

 

25. The authority given by section 50(7) is to enter and seize documents and articles and to arrest any person who appears to have them in his possession or under his control. Section 23(2) authorises the Police to enter, arrest and search persons found in the premises and seize gambling equipment and money used for gambling or found on persons therein. These statutes authorise an infringement of property rights to the extent that what would otherwise- be trespass and wrongful conversion is made lawful. What is material, as regards the present application, is that the sections authorise the seizure of documents and articles and the retention thereof contrary to the possessory right of the person from whom they are seized. The purpose of the sections is to allow the police to enter premises and to seize articles and goods which, it is suspected, are being used in the commission of offences. The sections are, understandably in my view, silent as to the right of the police, having entered the premises, to make observations and take statements - these matters are not within their ambit. No one questions that the police, having entered premises under a warrant, can quite properly, make observations and take statements. They do not, however, do so because of any express authorisation in the legislation permitting the issue of the warrant. The aim of that legislation is to ensure that the police are able to gain entry to premises without fear of an action of trespass being brought against them and to seize papers and articles with fear of an action of conversion. Neither of the above sections is, I am satisfied, concerned with the generality of evidence gathered after the execution of a warrant. That the sections were enacted to legalise the entry and the retention of documents or articles seized was clearly recognised by Huggins, J.A. in The Ocean Timber Transportation⁽¹⁾ case at 301 where he said

"The documents in this case were in the possession of the respondent. The police had authority to take custody of them for a specific purpose and to that extent - but only to that extent - the right of the respondent to possession was suspended. It was argued that because the Royal Hong Kong Police still require the documents for the lawful purpose for which they were seized, the respondent has no immediate right to possession which can be protected in Court of law. I do not believe that the Courts are as powerless as it is suggested: even if the respondent is not entitled to the immediate redelivery of the documents to it, it still has the remainder of its possessory right over the documents. It is that which it seeks to protect. "

That the sections are concerned with legitimising an invasion of possessory right was again made clear at 303 where Huggins, J.A. said:

"What matters is that an abuse of authority by the Royal Hong Kong Police threatens the respondent's possessory right in the documents. The overwhelming public interest demands that the court should prevent and not refuse the relief sought. "

That this is so is clear also from the words of Leonard J., at 307, where he said:

"Here we are clearly concerned with the right of property. The plaintiff's right is the right of ownership as distinct from a right to immediate possession of custody. To show these documents to another is clearly an invasion of that right of ownership. For myself, as I have shown, I do not accept that the fact that the legislation permits the acquisition of possession must be an answer to a claim in conversion but, even if it does what the respondent seeks here is not damages for conversion but a declaration of other concomitant rights of ownership - the right to have its documents not communicated or shown to others who are In no way alleged to be assisting in the interpretation of those documents, to the witnesses or to be required to see them for the purpose for which the respondent was deprived of their custody, the purpose for which the legislation permitted their seizure. Rights of property and of the individual are involved. The legislation permits these rights to be invaded to a limited extent but if those limits are to be exceeded and they clearly would be exceeded if the contents of the plaintiff's private documents or copies of them are provided to the Royal Fiji Police against the respondent's wishes, the respondent is entitled to such relief as this court can give him. "

26. I am satisfied that the sections are concerned with property rights and that the principle the Ocean Timber Transportation⁽¹⁾case laid down was that it was an infringement of the possessory right of the person from whom the documents or articles were seized if an attempt was made to use them for a purpose other than that for which the legislature permitted their seizure. The possessory rights of a person in goods seized under a warrant do not, I am satisfied, give him any right to object to the disclosure by the police to a third party of evidence, except insofar as it consists of the goods seized, obtained at the time of the execution of the warrant. A party is, therefore, entitled to ask that no documents or articles seized under a warrant in which he has a possessory right be shown to any person except for the purpose of prosecuting an offence.

27. What is the position in the present case?

28. As regards the documents and articles seized in the first two raids, I am satisfied the applicant has no right to make any application. He has no possessory rights in those articles and no person with any such right has come before this court to make any complaint as to the use to which it is proposed to put them.

29. Can the applicant make an application as to the use to which it is proposed to put the "Super-Winner" racing booklet which is said to have been seized from him. Before determining this matter, it is necessary to set out what happened to this document after it had been seized. Mr. Brian Webster says in his affidavit that this document was produced as an exhibit during the trial of another accused and was subsequently ordered "to be confiscated by the magistrate". It seems common ground that what in fact occurred was that the document was, at the conclusion of that other trial, ordered to be forfeited. I have no material before me to show when this occurred but there can be no doubt that, at that time, the applicant lost any property rights which he had, theretofore, had in the document. By virtue of the order of forfeiture, it became the property of the Crown. Surprisingly, however, pursuant to a letter written by a Mr. W. McMillan for the Commissioner of Police on the 22nd July 1986, the booklet was returned to the applicant.

I am at a loss to understand, given s.91 of the Interpretation and General Clauses Ordinance, by what authority this was done - perhaps it was simply an oversight.

30. I am informed by Mr. Findlay that it is proposed to produce to the Jockey Club enquiry a copy of the booklet. Given that the booklet was forfeited to the Crown and was, for a time, the property of the Crown, it seems to me that the applicant has no locus standi to complain when the Crown indicates that it will allow a police officer to produce a copy thereof to the enquiry. It is true that the applicant again has the booklet in his possession but this gives him, I am satisfied, no right to make complaint against the proposed use by the Crown of a copy of the document which the Crown must be taken, given the forfeiture order, to have lawfully in its possession. I am satisfied that in such circumstances, the applicant has no possessory rights as to the copy in relation to which he can invoke the protection of this Court.

Public Interest Privilege Evidence generally

31. I turn now to the third question. First I must determine whether, leaving aside the fact that the evidence was obtained by virtue of the execution of warrants, it is against the public interest that police officers disclose to a private enquiry information obtained in the course of their duties. In some jurisdictions the police are expressly prohibited from making such disclosures. There is so such prohibition in Hong Kong. In the present case, as Mr. Findlay points out, the Commissioner considers that it is in the public interest that the disclosure be made. There have been a number of cases commencing with Hasting v. Chalmers⁽²⁾ where it has been held, usually after objection by the Commissioner of Police, that reports made by police officers to their superiors are protected from production. The foundation of this rule was accepted in Spigelman v. Hocker⁽³⁾ as having been correctly stated by Macnaughten J. when he said in Asiatic Petroleum Company Limited v. Anglo-Persian Oil Company Limited⁽⁴⁾ at 830:-

"The foundation of the rule in that the information cannot be disclosed without injury to the public interest and not that the documents are confidential or official which is no reason for their non-production. "

32. Each case must, however, be decided upon its merits. I am unable to see how the public interest would be adversely affected in a case such as the present one if police were to provide to a private enquiry, with the approval of the Commissioner, evidence of observations made and articles seized in the course of a completed investigation. That investigation clearly could not be prejudiced and I am unable to see how any future investigation could be prejudiced. Further I cannot see how the good order and discipline of the police force or the administration of justice generally could be in any way adversely affected. I make it plain that I am here referring to evidence obtained in the ordinary course of an investigation and that I am not dealing with information given confidentially and that I am, for the moment, leaving aside the fact that the evidence was obtained at the time of the execution of warrants.

Evidence Obtained by Virtue of a Warrant

33. I turn now to consider whether the situation is any different when the evidence is obtained by virtue of and at the time of the execution of a warrant. Such evidence has been obtained only because the law has allowed an invasion of private rights for a specific purpose, i.e. the prosecution of criminal offences. Without the authorizing legislation the entry and seizure would have been unlawful.

34. The Courts must approach such legislation with caution. The same care must, I am satisfied, be used when determining whether the legislation is being implemented in the public interest as is exercised when construing such legislation. (See Reg. v. IRC Ex p Rossminster⁽⁵⁾ at 1021.) In that case the public interest involved was strikingly described by Lord Scarman –

"If power exists for officers of the Board of Inland Revenue to enter premises, if necessary by force, at any time of the day or night and then seize and remove any things whatsoever found there which they have reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of any offence or offences involving any form of fraud in connection with, or in relation to tax, it is the duty of the courts to see that it is not abused:

for it is a breath-aking inroad upon the individual's right of privacy and right of property. Important as is the public interest in the detection and punishment of tax frauds, it is not to be compared with the public interest in the right of men and women to be secure in the privacy of their homes, their offices, and their papers. "

 

35. It was submitted that there was no public interest in issue in the present case. Alternatively, Mr. Findlay submitted that if a question of public interest is involved the matter is in the discretion of the Court and that the relief should be refused as the interference with the applicant's property rights is minimal and the competing public interest that the Jockey Club, which is a public body under the Prosecution of Bribery Ordinance, be assisted to discipline one of its members is much more compelling.

36. This, I am satisfied, states the public interest upon which the applicant relies much too narrowly. I am satisfied that that public interest is the right, which was described by Lord Scarman, of men and women to be secure in their homes, their offices and their papers. This right is of fundamental importance to every member of our community.

37. I am satisfied that there is no competing public interest of sufficient gravity to outweigh that interest and 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.

38. I am aware that public interest privilege has in past decisions, in circumstances such as this, only been held to cover evidence proposed to be called in civil or criminal proceedings and that this decision extends that privilege to information intended to be passed to a private enquiry. It was however never suggested by the respondents that if there was a predominant public interest involved, such as was contended for by the applicant, this court was precluded on any such ground from holding it must be protected. Lord Hailsham said in D. v. relational Society for the Prevention of Cruelty to Children⁽⁶⁾ at 230:

"The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop. "

 

39. Bearing those words in mind, I am satisfied, for the reasons set out above, that if this decision does involve an extension of the protection given to the public interest it is proper that it should.

40. I grant the applicant a declaration that it is unlawful for the Commissioner of Police and his police officers to disclose to the Disciplinary Committee of the Jockey Club information obtained in the course of the criminal investigation at the time of and as a result of the execution of Gambling Authorizations 158024 and S/N 159043 and Search Warrant No. Western 1675/85.

(1)    [1979] H.K.L.R. 298

(2)    [1890] 18 R. 244

(3)    [1932] 50 T.L.R. 87

(4)    [1916] 1 K.B. 822

(5)    [1980] A.C. 952

(6) [1978] A.C. 171