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

HCMP 1175/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1175 OF 2007

____________

____________

______________

D E C I S I O N

______________

Background:

1.  On 16 January 2007, consequent upon a request by the Government of the Republic of Italy to the Government of the HKSAR pursuant to the Mutual Legal Assistance in Criminal Matters Ordinance, (Cap 595), (MLAO), certain search warrants were issued by a Hong Kong magistrate.  The search warrants were obtained in order to secure documents for the use in a criminal trial presently underway in Italy.

2.  The search warrants were subsequently executed and certain documents have been seized.  The plaintiffs have, in separate judicial review proceedings, (HCAL 16-19 of 2007), challenged both the issuance and the execution of the search warrants. 

3.  The basis of the challenge to the execution of the search warrants is an allegation by the plaintiffs that during the execution of the search warrants by Hong Kong police officers, four Italians; two prosecutors and two investigative accountants; who are involved in the criminal trial in Italy, were present and took part in, and conducted the searches. 

4.  While the MLAO permits “assistance” to be given to the Hong Kong police in the execution of a search warrant, the plaintiffs say that the MALO does not permit persons other than Hong Kong police officers to actually conduct the search.  Consequently, the plaintiffs say, the execution of the search warrants was unlawful. 

5.  The parties have been unable to agree as to the facts as to precisely what took place in the course of the searches, and in particular the extent of the involvement of the four Italians in the search.  In order to resolve this disagreement as to fact, it will be necessary for me to hear the evidence as to what took place and to make factual findings.

6.  Judicial review is generally conducted on written evidence and is regarded as an unsuitable forum to resolve factual disputes.  However, in certain circumstances the resolution of a factual dispute owever in appHcan be appropriate and necessary.  If the findings of fact are crucial to whether a ground for intervention is made out, oral evidence may be taken in judicial review proceedings: see Judicial Review Handbook, 4^th Ed, Michael Fordham, para 7.3 et seq.

The plaintiffs apply for a letter of request to take evidence overseas:

7.  The Secretary for Justice accepts that this particular judicial review proceeding is a proceeding in which it will be necessary for the court to hear evidence and make factual findings.  However, through his counsel, the Secretary for Justice has made it clear that in the course of the trial, in order to enable the court to determine the disputed facts, he intends to call as witnesses only the Hong Kong police officers who were involved in the search.  He does not intend to call as witnesses the four Italians, whose conduct is at issue.

8.  Consequently, in order that the court may hear from those four witnesses, the 1^st and 2^nd plaintiffs seek, pursuant to O 39, Rules of the High Court, (the Rules), an order for the issue of a letter of request to the judicial authorities of the Republic of Italy to take the evidence of the four Italians in Italy.

The Secretary for Justice seeks to dismiss the originating summons:

9.  By summons filed on 11 July 2007, the Secretary for Justice has applied for an order that the court has no jurisdiction to issue the letter of request pursuant to O 39.  The submission made is that the judicial review proceedings in which it is sought to use the evidence are a criminal cause or matter, to which O 39 has no application.

10.  The argument for the Secretary for Justice, as originally cast, involved five propositions, (I take these propositions from Mr Blanchflower’s skeleton argument):

(i)      the request by the Italian Government for mutual legal assistance was in relation to a criminal prosecution in Italy;

(ii)     the issuance and execution of the search warrants was in a criminal cause or matter;

(iii)    the challenge to the issuance and execution of the search warrants in the judicial review proceedings is consequently a criminal cause or matter;

(iv)    consequently the plaintiffs’ application for a letter of request to obtain evidence for the judicial review proceedings is a criminal cause or matter;

(v)     Order 39 applies only to civil causes or matters; consequently the High Court has no jurisdiction under O 39 to issue a letter of request for the purpose of obtaining evidence for use in criminal proceedings.

An argument was also mounted by Mr Blanchflower that if the court were to find in his favour, the plaintiffs could not rely upon s 77E, Evidence Ordinance, Cap 8, which deals with the issue of a letter of request in criminal proceedings.  Mr McCoy expressly disavowed any reliance upon that provision and I do not need to consider that argument further.

11.  In the course of the argument Mr McCoy referred to the decision in Panayiotou v Sony Music Ltd [1994] Ch 143, in which the Vice-Chancellor, Sir Donald Nicholls, pointed out that the jurisdiction of the High Court to make a request to the court of another country for assistance in obtaining evidence arises not from the Rules, but from the inherent jurisdiction.  It is clear that that is right.  The jurisdiction to issue a letter of request does not arise from O 39, the purpose of O 39 is to regulate the procedure, that is to provide the mechanism, whereby the jurisdiction is exercised.

12.  In the light of that authority, and without objection, Mr Blanchflower amended his summons to include an application that the application for the letter of request under O 39 should be dismissed on the ground that whilst having jurisdiction, the court had no power, in the context of the particular case to exercise the jurisdiction.

13.  The essence of the submission made by Mr Blanchflower was that the judicial review proceedings for which the letters of request were sought, were a criminal cause or matter, and that the Rules were not available to come to the assistance of a plaintiff in a criminal matter.  The basis for the submission is the provision for the application of the Rules of the High Court which is dealt with in O 1 r 2.  In particular, O 1 r 2(3) provides:

“These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 53, Order 59, Order 62, Order 70, Order 115, Order 116, Order 117, Order 118 or Order 119 applies.”

The plaintiff’s reply:

14.  Mr McCoy’s response is twofold.

15.  First, he says that judicial review proceedings do constitute a criminal cause or matter, but that the restriction on the application of the Rules contained in O 1 r 2(3) is a restriction that is limited to a “criminal proceeding”, but not a “criminal cause or matter”.  Mr McCoy says that the judicial review is not a “criminal proceeding”.

16.  Second he says that even if the restriction does apply, the exemption in respect of certain matters, resulting from the use of the expression “other than” in O 1 r 2(3), means that the Rules do apply to those exempted proceedings.  Thus, as O 53, the rule regulating and providing the mechanism for the conduct of judicial review proceedings is one of the exempted rules, he has access by that means to all appropriate Rules.

“Criminal cause or matter” or “criminal proceedings”:

17.  Mr McCoy concedes that the judicial review proceedings are a criminal cause or matter.  I am satisfied that he is correct to make that concession.

18.  The proper approach to ascertaining whether a matter is a criminal cause or matter, or a civil proceeding has been set out in So Wing Keung v Sing Tao Ltd & Anor [2005] 2 HKLRD 11 CA.  The following passages from the judgement of Ma CJHC at p 42 are relevant:

“10.   ….While no doubt the presence of underlying criminal proceedings where the relevant accused faces the possibility of a conviction on a criminal charge and of being punished for it, will certainly mean that the “cause or matter” is criminal and not civil, this I believe merely to be an example (albeit a classic one) and not exhaustive.  Further, in my view, the House of Lords in R (McCann & Ors) Crown Court at Manchester & Anor [2003] 1 AC 787, in those passages already referred to, was not seeking to lay down an exhaustive definition of criminal proceedings or a criminal cause or matter.  These statements were made in the particular context before the House of Lords.  It was expressly recognised that the term “criminal cause or matter” may bear a different meaning when interpreted in the context of the existence of appellate jurisdiction: see the speech of Lord Steyn at p 807 (para 21).

11     In ascertaining the nature of the underlying cause or matter in which the judgement or order under appeal is brought, one must, I believe, adopt a flexible approach with some degree of common sense.  The analysis should involve looking at the object and purpose of the relevant cause or matter.  A cause or matter that has as its object or purpose the possible conviction of a person on a criminal charge is an a fortiori situation where the nature is without doubt criminal, but this is not the only situation.  Where, for example, an order was sought for the production of various documents under the terms of the Police and Criminal Evidence Act 1984 (PACE) in order to assist a criminal investigation (these proceedings being similar to those under s 84 Interpretation and General Clauses Ordinance) (IGCO), it was held by the English Court of Appeal that these proceedings were a criminal cause or matter for the purpose of s 18(1)(a) of the Supreme Court Act 1981 (which barred appeals to the Court of Appeal in relation to any judgement of the High Court in a “criminal cause or matter”) see Carr & Ors v Atkins [1987] 1 QB 963.  This was so even where criminal proceedings had not yet begun: see p 968C-E per Lord Donaldson of Lymington.”

19.  It must be significant that So Wing Keung concerned search warrants, albeit search warrants issued under s 85 IGCO.  The court held that s 85 proceedings to obtain search warrants were a criminal cause in nature and did not constitute a civil cause or matter.  So Wing Keung was applied in Yeung Chun Pong & Ors v Secretary for Justice, (unreported, CACV 102/2005) where MA CJHC pointed out that where the nature of the cause or matter was criminal rather than civil, it did not lose this characteristic merely because at one stage or another, techniques were employed which closely resembled those used in civil matters.

20.  In a number of cases, collateral or ancillary steps in relation to criminal proceedings have themselves been held to be a criminal cause or matter.  The clearest example is Bonalumi v Secretary of State for the Home Department & Anor [1985] 1 QB 675 CA.  There the Government of Sweden made a request of the Secretary of State for assistance in obtaining from a bank in London, a statement of an account at that bank during a particular period.  The statement was needed by the prosecution as evidence in a case pending in the district court in Sweden against the account holder in connection with a criminal offence described as gross disloyalty to principal.  The Secretary of State, on a summons in the High Court, obtained an order enabling him to inspect and take copies of the account.  In judicial review proceedings, on the preliminary question whether the order was made in a criminal cause or matter, it was held that since the order had been made for the purpose of placing evidence before the justices in England, and the Swedish court in proceedings that were criminal in nature, the order had been made in a criminal cause or matter.

21.  Having accepted that the proceedings are a criminal cause or matter, Mr McCoy submits that the question to be asked is not whether the proceedings are a civil cause or matter or a criminal cause or matter, as Mr Blanchflower put it, but whether the proceedings are criminal proceedings.

22.  He draws my attention to the fact that the restriction in O 1 r 2(3) on the application of the Rules is a restriction in relation to “criminal proceedings”, and not a “criminal cause or matter”, the expression used by Mr Blanchflower, and that with which So Wing Keung was concerned. 

23.  Mr McCoy relies upon Customs and Excise Commissioners v City of London Magistrates’ Court & Ors [2000] 1 WLR 2020, at 2025A, where Lord Bingham CJ said:

“It is in my judgment the general understanding that criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.”

That statement was made in the course of proceedings required to determine whether an application made by the Customs Department for “access orders” against three banks to obtain information were criminal proceedings.  I understand an “access order” to be equivalent to a search warrant.  The statement was approved in R (McCann) v Manchester Crown Court [2003] 1AC 787 at 807 HL per Lord Steyn.

24.  It is clear that the judicial review proceedings will take their character from the underlying proceedings with which they are concerned.  Mr McCoy submits that an application to the courts in Hong Kong for a search warrant, while being a criminal cause or matter, cannot be a criminal proceeding, in terms of Lord Bingham’s definition, because it does not involve a formal accusation, nor might the proceedings culminate in the conviction or condemnation of the parties subject to the search warrant.  An application for a search warrant he says is merely a request to the court for permission to obtain information with the assistance of the authority of the law, and if granted will culminate in nothing more than the production of documents or exhibits.

25.  Mr Blanchflower responds by saying that the expression “criminal proceedings” as it is used in O 1 r 2(3) was not intended to be a term of art and to be restricted in the manner in which the expression is restricted by Lord Bingham’s definition.  He says that the clear intent of the Rules is that, except in certain limited circumstances, criminal matters or causes shall not be dealt with under the Rules.  He says that in the circumstances of the Rules, the expression “proceedings” is a mere adjective and was intended by the framers of the Rules to cover all steps taken in the court, of criminal origin, whether they be causes or matters, or proceedings.

26.  I think Mr Blanchflower is right.  It is plainly intended by the Rules that it is only in very limited circumstances they should be engaged when the criminal law is engaged.  It is right that the expression “criminal cause or matter” is an expression that is well known to the law, having been considered many times particularly in England in the context of rights of appeal.  It might have been better had the framers of the Rules used that expression, but notwithstanding the fact that they did not, I am satisfied that the whole intent of the Rules is that, except in certain specified circumstances, they should not apply when the court is considering the criminal law.

27.  Mr McCoy’s submission that the proceedings, by not being criminal proceedings, are not caught by O 1 r 2(3), fails.

28.  I note that if I am wrong in that conclusion, it would necessarily follow that the whole of the Rules, including R 39, would apply.  There is plainly jurisdiction to issue letters of request, and the power and mechanism would exist to carry out the procedure under O 39.

The effect of the expression “other than”:

29.  Notwithstanding the reference to O 53, as one of the rules exempted from the restriction on the effect of the application of the Rules, Mr Blanchflower argues that O 39 still does not apply.

30.  Mr Blanchflower first draws my attention to the preliminary words in s 2 HCO which provide:

“In this Ordinance unless the context otherwise requires-”

He then refers me to the provision for the application of the Rules of the High Court which is dealt with in O 1 r 2.  In particular, O 1 r 1 and 2(3) provide:

“(1)   Subject of the following provisions of this rule, these rules shall have effect in relation to all proceedings in the High Court.

(2)     …. (omitted as irrelevant)

(3)     These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 53, Order 59, Order 62, Order 70, Order 115, Order 116, Order 117, Order 118 or Order 119 applies.”

31.  From this Mr Blanchflower argues that as O 39 is not referred to in r 2(3), O 39 is not an Order which the rules contemplate being engaged in a criminal proceeding or criminal cause or matter.

32.  The important expression to consider in O 1 r 2(3) is the expression “other than”.  As I understand Mr Blanchflower’s argument it is that unless a specific order is referred to in O 1 r 2(3), then that Order is completely irrelevant if the proceedings are criminal in origin, whether a criminal proceeding, or a criminal cause or matter.

33.  The proposition is answered by the judgement of the Court of Final Appeal in P v The Commissioner of the Independent Commission Against Corruption, (unreported FACC 11/2006, 31 May 2007).  There the court was considering an application to the Court of First Instance under Part III of the Prevention of Bribery Ordinance, Cap 201, (POBO).  Such an application is dealt with under O 119 RHC, one of the orders referred to in O1 r 2(3).  In his judgement the Chief Justice noted that the Rules are made by the Rules Committee to regulate and prescribe the procedure and the practice to be followed in the High Court.  In dealing with the effect of O1 r 2(3) the Chief Justice said this:

“By virtue of Order 1 r 2(1) and r 2(3), the Rules shall have effect in relation to applications under Part III POBO, notwithstanding that they relate to investigations into criminal offences under the POBO and are regarded by the Rules as criminal proceedings.  The intent is that a particular rule should apply to such an application if and in so far as the rule in question is appropriate for use in the application.  For example, many of the rules of the High Court only apply to actions begun by writ.  These rules clearly are irrelevant to applications under Part III POBO.”  (The emphasis is mine).

34.  Mr McCoy submits, and I accept, that the test as to whether or not a particular rule will apply in an application in any of the criminal proceedings exempted from the exclusion of the operation of the Rules by O 1 r 2(3) is appropriateness.

35.  There is no reason at all why there should be any special inclusion of other rules in respect of an application under O 118, and not each of the other Orders referred to in O1 r 2(3).  Plainly each of those Orders, each dealing with a different criminal procedure, should be dealt with on the same basis, with the test of appropriateness being applied in each case.

36.  The statement made by the Chief Justice must be right when regard is had to the fact that the fundamental proceedings in which the plaintiffs seek to use the evidence obtained by letter of request are judicial review proceedings, that is proceedings governed by O 53.  The effect of Mr Blanchflower’s argument is to reduce O 53 to a code, isolated and alone, under which judicial review proceedings are to be taken.  The effect of the argument is to deny a party to judicial review proceedings access to any other Order or Rule in the Rules other than those contained in O 53.

37.  In my view that cannot be right.  Plainly there will be many rules which will be appropriate to apply in judicial review proceedings.

38.    Mr McCoy submitted that Mr Blanchflower’s own summons for dismissal was expressed to be filed pursuant to O 28 r 9. consequently he said, if Mr Blanchflower’s argument was correct, Mr Blanchflower could not rely upon that rule as the basis for his summons.  When faced with this contradiction, Mr Blanchflower was obliged to acknowledge that certain of the rules, although not specified in O 1 r 2(3), would apply in the course of judicial review proceedings.  However he said that O 39 would not apply.  In the course of argument Mr Blanchflower was obliged to acknowledge numerous rules which would apply, although not referred to in O 1 r 2(3), but continually asserted that while other rules would apply, O 39 would not.

39.  The example given by the Chief Justice, of rules applying to actions begun by writ, being not applicable to O 118 proceedings, is plainly right.  But it will not always be the case that rules applying to actions begun by writ, will not apply to the particular rule, be it O 39 or one of the others, exempted under O 1 r 2(3).

40.  A careful analysis of judicial review proceedings, even in a criminal cause or matter, can demonstrate that rules applicable to an action begun by writ might well be applicable in judicial review proceedings.  In judicial review proceedings damages may be sought.  It is, as Mr McCoy submits, quite open to the plaintiffs to include in their application for judicial review a claim for damages for trespass, for if the search is found to be unlawful there might well have been an unlawful trespass, upon which a right to damages would arise.

41.  There are numerous rules relating to damages, such as payment into court, (O 23), assessment of damages, (O 37), or enforcement of judgments, (O 45), which it might be appropriate to apply in the course of judicial review proceedings in which damages are sought. 

42.  Order 53 contains no provision in relation to service of the proceedings.  Plainly, a party seeking to serve the proceedings must refer to O 10.  Order 53 itself contemplates reference to other rules.  It is clear from O 53 r 3(6) that in dealing with amendments the court is given power under that Order, but also retains powers conferred by O 20 r 8, because the power to grant amendment is specifically stated to be without prejudice to those powers. 

43.  Mr Blanchflower’s argument can be seen to be fallacious when regard is had to the manner in which O 53 deals with interlocutory applications.  It needs to be noted that although Mr McCoy has made his application for letters of request a separate application outside the application for judicial review, there is no reason at all why it might not have been made by way of an interlocutory application within the judicial review proceedings.

44.  Order 53 r 8 deals with interlocutory applications.  The title to r 8 reads: “Application for discovery, interrogatories, cross-examination etc”.  In the rule the expression “interlocutory application” is defined to include orders under O 24, O 26, or O 38, that is for discovery, interrogatories and cross-examination, (the emphasis is mine). 

45.  The use of the expression “etc” in the title, and “includes” in the reference to the rules upon which reliance may be made, makes it abundantly plain that O 53 is not intended to be a self-contained code, importing only those other rules to which specific reference is made.  The title to O 53 might properly have been: “Obtaining evidence for judicial review proceedings”, for that is the subject of the order.

46.  The two expressions used, “etc” and “includes”, make it clear that in seeking the necessary evidence for judicial review proceedings both an applicant and a respondent might look at any provision in the Rules for the provision of evidence.  In my view it is plain that O 53 r 8 is intended to be a basic tool, merely the starting point for the mechanism by which evidence may be obtained for applications for judicial review.  There is nothing in O 53 which would indicate that letters of request to an overseas court, a legitimate means of obtaining evidence, could not be used.

47.  In order to determine which of the Rules would have effect in judicial review proceedings Mr Blanchflower referred to the preliminary words in s 2 HCO which provide:

“In this Ordinance unless the context otherwise requires-”

and argued that it was necessary to have regard to the context to determine applicability.  He then referred to the editorial introduction in Hong Kong Civil Procedure, 2007 para 39/0/1 which records that the court may receive evidence in the form of depositions sworn by witnesses for trial.  He contended that the proceedings with which the court was concerned did not constitute a trial and accordingly O 39 could not apply.

48.  I reject the proposition.  The Secretary for Justice has, correctly, accepted that in these particular judicial review proceedings it will be necessary to hear evidence to enable the court to make factual findings on the factual issue in dispute between the parties.

49.  Jowitt’s Dictionary of English Law 2^nd Ed, relying upon Coke on Littleton, records that a trial is :

“…. the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgement may be given.”

The exercise that I am required to undertake will require hearing witnesses, and cross-examination, and the determination of facts, upon which facts I shall apply the appropriate law.  The point in issue or question between the parties is the extent of the involvement of the Italians in the searches.  I must find out, by due examination, the truth of that point in issue or question.  I can think of no other way to describe the exercise, other than by calling it a trial.

50.  Mr Blanchflower next referred to what he described as “legislative indicia” which indicated that it was not intended that the O 39 procedure should be available in judicial review proceedings.  These include the fact that the provisions of the MLAO were not available to a private person; see s 2(7); that there was a specific provision for the obtaining evidence by way of letters of request in criminal proceedings, (as against a mere criminal cause or matter such as the present proceeding), under s77E Evidence Ordinance, and that did not extend to the present proceedings; and that judicial review was intended to be an expeditious economic proceeding.

51.  There is nothing in any of these so-called “indicia” which persuades me that it was not intended that all methods of putting evidence before the court in judicial review proceedings should not be available.

52.  The effect of the submission made for the Secretary of Justice is that the court, in the determination of this judicial review proceedings, will be denied the evidence of the very persons whose conduct is called into question.  Mr McCoy rightly contended that such a submission was a bold submission. 

53.  The hearing of relevant evidence to determine facts is a fundamental bulwark of our judicial system.  As long ago as 1808, Lord Ellenborough CJ said in Amey v Long (1808) 9 East 473, 484, (cited with approval in Panayiotou at p 150):

“The right to resort to means competent to compel the production of written, as well as oral, testimony seems essential to the very existence and constitution of a court of common-law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them.”

In my view if it were asked of the Rules Committee:  “Was it intended that in judicial review proceedings where the underlying matter is criminal in origin, the court should only be entitled to hear evidence of persons in Hong Kong, and should not be entitled to hear evidence of persons outside Hong Kong, no matter how relevant that evidence might be?”; the answer would be: “Of course not!”. 

54.  The proposition that the Rules should be interpreted so as to deny a party access to plainly relevant evidence is such an extreme proposition that it is one which should be acceded to only in the plainest of plain circumstances.  Those circumstances certainly do not exist here.

55.  Finally, Mr Blanchflower mounted an argument based upon an exercise undertaken in Panayiotou, where the court examined the circumstances of an English court in relation to an incoming letter of request, in the course of determining how to deal with an outgoing letter of request.  As I understood Mr Blanchflower’s argument it amounted to saying that because of the hybrid nature of the judicial review proceedings in this present case, that is, proceedings of a criminal nature being undertaken under a civil regime, the Italian authorities may not be able to deal with the matter.

56.  I am unable to understand how that issue, and it may well ultimately be an issue, can impact upon the question as to whether or not the acknowledged jurisdiction ought to be exercised utilising the mechanism provided in O 39.  It seems to me that how the Italian authorities might deal with the matter is entirely a matter for the plaintiffs to deal with should they succeed in obtaining an order for the letters of request.

Conclusion:

57.  For the foregoing reasons I have come to the conclusion that if it happens that judicial review proceedings, by reason of their nature, as in the present case, are criminal proceedings, or a criminal cause or matter, the effect of the use of the words “other than” in O 1 r 2(3) is that the whole of the High Court Rules have effect in relation to judicial review proceedings, being proceedings under O 53, subject only to the test as to whether or not the application of a rule in a particular circumstance will be appropriate.

58.  I am satisfied that it is appropriate that O 39 should apply to the present proceedings, thereby supplying the appropriate procedure whereby the jurisdiction to issue letters of request may be exercised.

The exercise of discretion to issue the letters of request:

59.  There remains the question of the exercise of discretion whether or not to make the order to issue the letters of request.  As I indicated to the parties in the course of the hearing, should I find that the jurisdiction can be exercised under O 39, I propose to deal with the question of the exercise of discretion on 1 & 2 August 2007.  The proceedings accordingly adjourned to 10 a.m. on 1 August 2007, with the following day reserved.

60.  All questions of costs are reserved.