In re Ch'ng Poh

1996 No. MP 1903

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On 22 May 1996 the I.C.A.C. officers went to the premises of "X and Co", a firm of solicitors and executed a search warrant issued to them under Section 10B of the Independent Commission against Corruption Ordinance (Cap. 204) by the Magistrate sitting at the Eastern Magistrates Court. They took away with them a large quantity of documents relating to a former client Ch'ng Poh, who had been convicted in July 1994 of offences of conspiracy to defraud and publishing a false statement in the annual reports of a limited company.

2. Ch'ng Poh's appeal, against conviction, to the Court of Appeal was dismissed on the 15th January 1996. He is now seeking leave to appeal to the Judicial Committee of the Privy Council.

3. At the hearing before the Court of Appeal, the appellant sought leave to adduce fresh evidence relying upon affidavits from amongst others, a man by the name of Warwick Reid, a former counsel in the Legal Department, who is well-known not to say notorious , in the context of corruption cases in Hong Kong. The gist of that evidence on the affidavit was to seek to discredit one of the principal witnesses at the trial of Ch'ng Poh, a man by the name of C.H. Low, who was an accomplice of the Defendant. It concerned an alleged conversation between Reid, Low and others, whilst they were all serving their prison sentences, in which Low is alleged to have said that he gave false evidence against the Defendant in order to revenge himself upon Ch'ng Poh who had reported Low to the Police in 1986. The Court of Appeal refused leave to adduce such evidence. It is the affidavit sworn by Reid which features at the heart of this current investigation which led to the issue and execution of the warrant.

4. An information, sworn by Gerald Roger Osborn, a Principal Investigator with the I.C.A.C. on the 14 May 1996, as the pre-requisite to the warrant issued, sets out the circumstances which led to the reasonable belief that an offence - I have used that simple description for the time being - had been committed by Reid and others. The source of the basis for this belief was Low who said he had been approached by Reid in late November 1994 when Reid was at Kai Tak Airport having just been released from prison, and Low was in Singapore.

5. Reid told Low that whilst he was still in prison he had been approached by "Mr. A" a solicitor with "X and Co" with an offer of payment if he, Reid, would swear an affidavit in terms which would seek to discredit Low, no doubt in the terms to which I have referred above. It was this affidavit which was subsequently put before the Court of Appeal on Ch'ng Poh's behalf.

6. Reid said the affidavit had been brought to him by "Mr. A" for him to sign, whilst he was in Siu Lam Prison, but that he had declined to do so until he had been paid. He said he was given a name card of a Mr. T.K. Li who would contact him in New Zealand.

7. In due course according to Reid, he met Li and was paid a significant sum of money. It is not necessary for me to detail this. Reid then tried to persuade Low not to assist the I.C.A.C by returning to Hong Kong to rebut the contents of his (Reid's) affidavit. There was then a meeting between Reid, Low and Li at which payment for Low was discussed. The matter was to be referred to Ch'ng Poh.

8. There was a later meeting in Singapore between Low and Li at which the 'reward' to be offered to Low was 10 million shares in IHD. Contacts between Reid and Low since that time have been monitored by the I.C.A.C., one of which referred to telephone contact between Reid and "Mr. A" with the former inquiring about progress in the payment for Low.

9. This evidence, if reliable, clearly amounted to a conspiracy involving "Mr. A" to pervert the course of justice, and corrupt payment of which he was the instrument. In relation to "Mr. A" it was only hearsay and since the source was tainted i.e. Reid, would not get a case "on its feet". In relation to Reid it was cogent evidence.

10. Against this background the warrant for execution at the premises of "X and Co", who employed "Mr. A" was sought. It is not difficult to assess the sort of documents and records which would be in existence if there was any substance in Reid's assertions to Low; it would be unwise however for me to identify them. Bearing in mind the difficulties with Reid and Low as witnesses, and there was no prospect of putting forward Reid as a witness again "Mr. A", any evidence which emerged from the execution of the warrant would be crucial evidence against "Mr. A".

11. The warrant accordingly issued on the 21st May 1996 to I.C.A.C. officers, permitted the entry and search of the premises of "X and Co." Mr. Osborn swore an affidavit in these proceedings on 26th June 1996, in which he set out that the investigation was into an allegation, inter alia, that "Mr. A" had offered Reid a sum of money to provide a false affidavit to assist Ch'ng Poh. The other allegations were in respect of the conspiracy to pervert the course of justice involving Reid, Ch'ng Poh, his wife and Li.

12. It was on the basis of the allegation against 'Mr. A" that Mr. Osborn was sworn to the information, and at the end of paragraph 4 of the affidavit he said reliance was placed on the allegation, if substantiated, constituting an offence under Section 9 of the Prevention of Bribery Ordinance, Cap. 201. The warrant was issued under Section 10B of the I.C.A.C. Ordinance. There were in fact two other warrants issued covering two other premises but all were in respect of the same allegation.

13. Section 10B provides that:

"If a magistrate is satisfied by information on oath that there is reason to believe that there is in any premises or place anything which is or contains evidence of the commission of any of the offences referred to in section 10, he may by warrant .... authorise such officer ..... to enter and search such premises."

It is now necessary to look at Section 10. Section 10(1) refers to the power of arrest on reasonable suspicion of guilt of an offence under the I.C.A.C. Ordinance or the Prevention of Bribery Ordinance. The remainder of the subsection need not concern me since it is only an alleged offence under the Prevention of Bribery Ordinance which is relied upon.

14. Subsection 10(2) sets out that:

"- where during an investigation by the Commission of a suspected offence under the Prevention of Bribery Ordinance another offence is disclosed, any such person may arrest a person if he reasonably suspects that such person is guilty of that offence and

(b) the other offence is one which is specified for the purposes of this sub-section in Subsection 5."

15. Subsection (5) identifies a number of offences amongst which are perverting or obstructing the course of justice and conspiring and attempting to do so.

16. Mr. Reading on behalf of the I.C.A.C. argues that the allegation against "Mr. A" constitutes an offence under S. 9 of the Prevention of Bribery Ordinance and concedes that if that is wrong then there is no basis for an application for the warrant under Section 10B of the I.C.A.C Ordinance. He advanced an interesting and novel argument that "Mr. A" as a solicitor acting as agent for his firm or its senior partners, and with an agreement by the client to pay his fees, who seeks to prevent the course of justice by bribing a potential witness to swear to a dishonest affidavit is well within the ambit of Section 9(1)(a); what section 9(1)(a) in fact says is

"Any agent who solicits or accepts any advantage as an inducement or reward for or otherwise on account of his

a) doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business..........

.......... shall be guilty of an offence."

17. Mr. Dykes argues that that cannot catch the offence alleged against "Mr. A". I agree with him. The offence outlined in that subsection is aimed at the recipient of a corrupt inducement to act dishonestly in relation to his principal's business - i.e. the offeree, not the offeror. In any event this would not catch Reid either because he was not being induced to or rewarded for an act or omission in relation to his principal's business.

18. 9(2) is in fact aimed at the offeror, the corrupt inducer, but again the recipient is the agent who is to receive the bribe for having acted or omitted to do an act in relation to his principal's business.

19. I do not consider that the alleged actions by "Mr. A" are covered by any part of section 9, although of course they are clearly, if substantiated, a very serious criminal offence.

20. It follows therefore that there is no jurisdiction to issue a warrant under the I.C.A.C. Ordinance though there are clearly other avenues open to the appropriate law enforcement body. This warrant must be quashed.

21. I have every sympathy with the learned magistrate who has to place great reliance upon the information sworn and put before him.

22. Mr. Dykes advanced a further argument that the terms of the warrant are inconsistent with those in section 10B of the I.C.A.C. Ordinance. Although it is not necessary for me to deal with this, because the appellant succeeds on the principal argument, I propose to do so because of the difference in the wording and the contended for significance. The Ordinance (s. 10B) states:

" - if a magistrate is satisfied ... that there is reason to believe that there is ... anything which is or contains evidence of the commission of any of the offences ..."

he may issue a warrant.

23. The actual warrant in fact says that there is reason to believe that ... there may be material ..." Mr. Dykes says "reason to believe that there is" is different from and stronger than "reason to believe that there may be," and in view of the courts' need to supervise draconian powers and ensure that they are exercised only in strict accordance with the letter of the law, the terminology of the warrant indicated on the part of the magistrate a lesser state of belief than required by the Ordinance in order validly to issue a warrant.

24. I do not see how a magistrate, or the officer laying the information can ever say (without having had the opportunity to search and inspect in advance) that there is material on the premises - i.e. with certainly. It may well be that the section is unhappily drafted so as at first sight to give rise to the need for that degree of certainty. The operative words should be seen as "reason to believe" which are indicative of other than certainly, and that having regard to those operative words, "There is" and "There may be" should be construed as synonymous. I have had regard to the decisions of the High Court of Australia (a distinguished five member court) in George v. Rocketts 93 ALR p. 482 and of the Court of Appeal (England & Wales) in Johnson v. Whitehouse 1984 RTR 38 which I had considered in other proceedings involving the Commissioner of the I.C.A.C. (HCMP 1996 No. 544) albeit on a different point. I think the wording of the warrant should follow that of the Ordinance. It is, at the least, likely to avoid further argument as to whether alternative words are being used to water down the standard imposed by the Ordinance. In any event, had I been the Magistrate, and had all other matters been in order, I would have been able to say that I was satisfied that there is reason to believe that there is material, etc. The warrants have been in standard use in this form for about fifteen years. Perhaps it is time to look at the form.

25. It is not necessary for me to deal with the question of legal professional privilege, at least in these proceedings. Had it been so I think almost inevitably I would have had to consider the documents myself, particularly since legal professional privilege was claimed in respect of some of them. In passing, I do not think that the warrant needed to be any more specific than it was as to the nature of the documents to be searched for and seized. It is only as a result of sifting and inspecting that a determination as to whether or not any is covered by privilege can be made. I am bound to say that almost inevitably many will be so covered.

Publicity

26. It was submitted by counsel for both parties that the identities of "Mr. A" and "X and Co" should not be disclosed and I agreed. The reasons are self-evident. Neither is a party to proceedings. In the case of the individual all that emerged was a bare allegation the maker of which is a much tainted figure. No arrest has been made. No other evidence exists other than that which may be acquired in the course of an investigation. In the case to which I have referred involving the I.C.A.C. earlier this year I said :

"Publication could affect their business, reputation and in some cases possibly security of employment."

It would be wholly prejudicial and without any justification whatsoever if an individual and a partnership were identified and exposed to the rumour and gossip of the public, and to the publicity accorded to proceedings in printed form.

(Conrad Seagroatt)

Judge of the High Court