In Re CHARLES WARWICK REID

H E A D N O T E

Judicial Review of Governor's powers - Use of the prerogative of mercy under article XV of the Letters Patent in the treatment of offenders who turn informer and become Crown witnesses.

IN THE COURT OF APPEAL

1993, No. 149
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. I invite Mr Justice Bokhary to give the first judgment.

Bokhary, J.A.:

Introduction

2. This is an appeal against a refusal of leave to apply for judicial review. The appellant was sentenced to eight years' imprisonment for corruption. Having turned informer, he gave evidence for the Crown. He petitioned the Governor for a remission of sentence under the prerogative of mercy. Three years' remission in return for such evidence was his objective. One year's remission was what the Governor gave him. He was dissatisfied with the Governor's decision not to remit more than one year of his sentence.

And he sought leave to challenge that decision by way of judicial review. The court below refused him such leave. That is the refusal against which he now appeals.

3. The matter is one of particular sadness to those involved in the administration of justice in Hong Kong. For it arises in this way.

Background

4. In 1975, the appellant, then in his late twenties, left his law practice in New Zealand and came to Hong Kong, joining the Attorney General's Chambers here as a Crown Counsel. He worked his way up. By the end of his service in those Chambers, he was a Principal Crown Counsel and the head of the Commercial Crime Unit.

5. To the shock of the whole community, he was arrested for corruption in October 1989, and suspended from duty. He was given bail. Custody of his passport was surrendered as a condition of his bail.

6. Not long after, in December 1989, he fled Hong Kong under an assumed name and using a false passport.

7. In the following month, January 1990, while he was a fugitive abroad, he was formally dismissed from the public service in Hong Kong.

8. His travels took him to Macau, then China and then the Philippines.

9. He arrived back in Hong Kong in March 1990, having been deported back here from the Philippines.

Charge

10. In the following month, April 1990, he was charged, under section 10(1)(b) of the Prevention of Bribery Ordinance, Cap.201, with being in control of unexplained pecuniary resources and property disproportionate to his official emoluments. The maximum penalty for that offence on conviction on indictment is a fine of $1 million and imprisonment for 10 years.

Immunity

11. By a letter dated May 11, 1990, the Attorney General offered the appellant immunity from further prosecution for corruption offences. It was of course offered on terms. Essentially, the terms were these. He was to plead guilty to the offence with which he had already been charged. And he was to give full and truthful evidence against the persons whom he had incriminated when giving information about their activities. He confirmed his acceptance of such immunity on those terms by signing the letter at the place indicated.

Extent of unexplained disproportion

12. The disproportionate and unexplained pecuniary resources and property controlled by the appellant are set out in the "Admitted Facts" dated June 8, 1990, which he signed in the presence of his then leading counsel who also signed. Those resources and property came to $12,415,900.72 (of which $10,149,708.70 was for the appellant's "benefit" and $2,266,192.02 was for the "benefit" of a corrupt third party).

Guilty plea and sentence

13. When he appeared in the Magistrate's Court on June 20, 1990, the appellant pleaded guilty. He was committed to the High Court for sentence.

14. Sentencing took place before the Chief Justice sitting in the High Court on June 20, 1990. After mitigation on his behalf by leading counsel, the appellant was sentenced to eight years' imprisonment.

Sentencing judge's suggestion

15. Before announcing that term, the sentencing judge made a suggestion in these terms:-

"That he has given comprehensive and useful information to the I.C.A.C. at personal risk and risk to his family is not in dispute. However, this assistance, conspicuous and substantial though it may well have been, cannot conveniently be divorced from the evidence he undertakes to give for the Prosecution in a number of future prosecutions.

Whilst some credit should be given for his co-operation in enabling the I.C.A.C. to at least bring a number of charges against a number of suspects, the full impact of his co-operation cannot realistically be weighed until he has actually given evidence. I would, therefore, give a nominal discount of one year for his co-operation, leaving it to the executive to reduce his term of imprisonment until after he has given evidence. If his evidence comes up to proof, I would suggest that the executive might consider a reduction of three years from the sentence I am about to impose to be reasonable."

Appeal against sentence abandoned

16. The appellant launched an appeal against his sentence, but later abandoned the same.

17. In due course, he gave evidence as a Crown witness at three trials. Convictions were reached in the first two but not the third. There is no need to go into details. And it is undesirable to do so. There are still outstanding appeals from one of those trials.

Petition

18. By a petition dated April 16, 1992, presented after the first trial but before the other two, the appellant petitioned the Governor for a remission of sentence.

Prerogative of mercy

19. The Governor's powers in that regard are those encompassed by the prerogative of mercy as contained in article XV of the Letters Patent, which article says:-

"When any crime or offence has been committed within the Colony, or for which the offender may be tried therein, the Governor may, as he shall see occasion, in Our name and on Our behalf, grant a pardon to any accomplice in such crime or offence who shall give such information as shall lead to the conviction of the principal offender, or of any one of such offenders, if more than one; and further, may grant to any offender convicted of any crime or offence by any court of law in the Colony (other than a court martial established under any Act of Parliament), either free or subject to such conditions as the Governor may think fit to impose, a pardon or any remission of the sentence passed on such offender,or any respite of the execution of such sentence for such period as the Governor thinks fit, and may remit any fines, penalties, or forfeitures due or accrued to Us. Provided always that the Governor shall in no case, except where the offence has been of a political nature unaccompanied by any other grave crime, make it a condition of any pardon or remission of sentence that the offender shall be banished from or shall absent himself or be removed from the Colony."

What the petition asked for

20. In paragraph 1 of his petition, the appellant asked the Governor to "give effect to" the sentencing judge's "recommendation" of a three-year reduction. But later on in the petition, the appellant went further and contended that the "recommended" reduction was in any event too slight. What the sentencing judge made is more a suggestion than a recommendation. But it is acceptable to use the latter term. As it happens, it is the one used by the appellant and also, as we shall see, by those who wrote to the appellant on the Governor's behalf.

One year's remission

21. Upon that petition, the Governor remitted the appellant's eight-year sentence by one year to imprisonment for seven years. The appellant was so informed by a letter dated July 9, 1993.

Decision

That is the decision which the appellant seeks leave to challenge by way of judicial review.

Reviewable?

22. While not conceding the point, the Crown is content that this appeal proceeds on the assumption that the exercise of the prerogative of mercy by the Governor is subject to judicial review. The appeal has proceeded on that footing.

Reasons

23. The application for leave was made by a notice of application dated August 6, 1993. By a letter dated two days earlier, August 4, 1993, the appellant's solicitors wrote to the Governor asking for "the reasons why [he] decided not to follow the recommendation of the Chief Justice." The reply came in the form of a letter dated August 16, 1993, signed for the Secretary for Security, saying this:-

" I refer to your letter of 4th August 1993 addressed to the Governor. I am instructed to reply on the Governor's behalf.

As you are aware, the decision of the Governor regarding a reduction in sentence following a petition is a matter of discretion vested in the Governor when exercising the Prerogative of Mercy.

In relation to the exercise of this discretion, it would not be appropriate for the Governor to identify each and every reason taken into account in coming to his decision or to attribute weight to those reasons. However, I can inform you that the Governor considered the petition personally and took into account all relevant circumstances including the recommendation of the Chief Justice. Further, I can inform you that the Governor was specifically advised by his legal advisers not to take any account of Mr Reid's non payment under the Compensation Order and did not take this matter into consideration in reaching his decision."

(The "Compensation Order" referred to is the sentencing judge's order, made when sentencing the appellant, that he "should pay to the Hong Kong Government the sum of $12,415,900.72, the sum equivalent to the disproportionate and inexplicable assets under [his] control".)

Relief

24. Reverting to the notice of application, the relief sought is therein set out thus:-

"1. An order of certiorari quashing the said decision of the Governor of Hong Kong.

2. A declaration that when exercising the prerogative of mercy under Article XV of the Hong Kong Letters Patent in relation to the sentence of Charles Warwick Reid the Governor is bound to give effect to the recommendation of the Chief Justice of 6th July 1990 that the Applicant's sentence of imprisonment be remitted to a term of not more than 5 years imprisonment, or, in the alternative, a declaration that the Governor is obliged to give his reasons for declining to give effect to the recommendation of the Chief Justice.

3. A declaration that the Applicant is unlawfully detained pursuant to the decision of the Governor of 8th July 1993.

4. Damages.

5. Further or other relief.

6. If leave is granted, an order directing that the application be expedited.

7. Costs."

Leave refused below

25. The application for leave to apply for judicial review came before Godfrey J "on paper" on August 7, 1993. He was not prepared to grant it then, but gave leave for it to be renewed in open court on notice to the intended respondent. That happened. And, on August 31, 1993, after hearing counsel on both sides, Godfrey J refused leave.

Notice of appeal

26. It is against such refusal that the appellant now appeals to this Court. The notice of appeal, which is dated September 8, 1993, contains one ground. It says, quite simply, that "contrary to [Godfrey J's judgment] an arguable case did exist to found a basis to grant leave and was demonstrated in the [notice of application] for leave."

Rule 69

27. The remission which this case concerns is of course remission under the prerogative of mercy. Such remission is not to be confused with statutory remission (of up to one-third of a prisoner's sentence for industry and good conduct) under rule 69 of the Prison Rules, Cap.234.

Five grounds of complaint

28. The appellant's notice of application contains five grounds of complaint against the Governor's decision. First, it is said that the decision is unreasonable on its face. Secondly, it is said the decision took an irrelevant factor into account. Thirdly, it is said that the decision is contrary to public policy as being in breach of bargain. Fourthly, it is said that the decision involved procedural unfairness resulting in arbitrary detention in violation of article 5 of the Bill of Rights. Fifthly and finally, it is said that the decision violated article 10 of the Bill of Rights in that it amounts to the substitution of an executive view on sentence for a judicial one.

Three not pursued

29. Before us, the appellant, who appears in person, did not pursue the second, third and fourth of those complaints.

Effect of the appellant's arguments

30. The effect of the arguments which he advanced may be summarised thus. The Governor's decision to remit only one year of his eight-year sentence is irrational. It is irrational because, even leaving aside the sentencing judge's recommendation of a three-year reduction, but especially in light of that recommendation, no Governor acting reasonably would have remitted less than three years of his sentence in return for the evidence which he gave for the Crown after he had been sentenced.

True nature of the sentencing judge's suggestion

31. It is necessary to consider the true nature of the sentencing judge's suggestion.

32. Whether the appellant should be given leave to apply for judicial review depends on whether his case is fit for investigation at a full hearing.

33. If it is reasonably arguable that the Governor's decision to remit only one year of the appellant's sentence flew in the face of what the sentencing judge said and did, then the appellant's case would be fit for such investigation.

34. In looking at what the sentencing judge said, this Court is of course concerned with substance and not form. Semantics do not come into it. Certainly, the matter is not to be decided by reference to labels such as "suggestion" or "recommendation".

35. The course taken by the Governor would only fly in the face of the course which the sentencing judge had taken if the sentencing judge had:

(i) said outright that the giving by the appellant of full and truthful evidence as promised was worth a three-year reduction of sentence; but

(ii) refrained from giving the appellant such a reduction because such evidence had not yet been (and might not after all be) given; and

(iii) left it to the Governor, relying in terms on him to remit three years of the appellant's sentence once he had given full and truthful evidence as promised.

Is it reasonably arguable that that is what the sentencing judge did?

36. In my judgment, it is not.

37. It is plain that the sentencing judge had not made up his mind as to how much of a reduction the giving of full and truthful evidence by the appellant was worth. As we have seen, the sentencing judge said in terms that "the full impact of his co-operation cannot realistically be weighed until he has actually given evidence". Not surprisingly, therefore, the sentencing judge's suggestion or recommendation was, as we have also seen, no more than that the Governor "might consider" a three-year reduction "to be reasonable".

In future

38. We are told that no suggestion or recommendation by a sentencing judge to the Governor as to the quantum of remission has been made before or since. No one appears to consider it likely that any will be made in future. I certainly would not encourage any repetition.

Is the decision nevertheless arguably irrational?

39. If, as I think is the case, the sentencing judge's suggestion or recommendation does not of itself afford any arguable basis for impugning the Governor's decision as irrational, is there any other basis for doing so?

40. Here, the appellant submits, first, that it would be unjust and therefore irrational for the Executive to deal with him less leniently than the Judiciary would. Secondly, he submits that the Judiciary would inevitably have dealt with him more leniently than the Executive has.

Practice

41. When considering the first submission, I begin by noting what this Court said in R. v. Ng Hon-kit [1991] 1 HKLR 56 at p.60 E-G as to the practice to follow in cases of this kind:-

" It is our view that, other than in exceptional cases, a court, when considering the discount to be given to an offender who has co-operated with the authorities and who has promised to give evidence against other offenders, should confine itself to what has occurred up to the date of the hearing and should not give credit for a promise to give evidence. Credit should be given for what an applicant has actually done and not for what he promises to do. Genuine co-operation and the giving of reliable information may be worthy of credit but they must be divorced from an unfulfilled promise to give evidence. Where such a promise is given, the hearing of the appeal should, if it is practicable, be postponed until after the trial of the other offender."

42. In the present case, as we have seen, a different course was followed.

Course followed in the present case

43. The sentencing judge did not postpone sentencing. He passed sentence without taking the promise into account. And he relied on the Governor to effect the appropriate reduction. It was left to the Governor to effect by way of remission under the prerogative of mercy, upon fulfillment of the promise. That would be the time when, as the sentencing judge saw it, "the full impact of [the appellant's] co-operation" could "realistically be weighed". The Governor did not decline to participate in that way of treating an offender, namely, the appellant.

44. As we have seen, the appellant's fifth and final complaint against the Governor's decision is that it violated article 10 of the Bill of Rights in that it amounts to the substitution of an executive view on sentence for a judicial one. The complaint is against the decision itself. And his cause for complaint can and should, the appellant says, be removed by the relief which he seeks.

Point preserved

45. Neither the appellant nor Mr Tang for the Crown takes the point that it was impermissible (whether under article 10 of the Bill of Rights or by reference to any other consideration) to involve the Executive in the treatment of offenders in the way in which the course followed in the present case did. It is, however, possible that such a point may be taken by somebody in the future. Article XV of the Letters Patent does deal in terms with accomplices. But that article would have content even if its exercise in regard to accomplices were confined to instances where sentencing and any appeal against sentence is over before an offender decides to turn informer and become a Crown witness. Not having had the benefit of argument on a point which may arise in future, I preserve it by saying nothing as to how it might be resolved if taken fairly and squarely and fully argued.

Yardstick

46. Reverting to the appellant's submission that it would be unjust and therefore irrational for the Executive to deal with him less leniently than the Judiciary would inevitably have done, I say this. Having regard to the course followed in the present case, which course I have just summarised, I would not shut out that submission at this the "leave" stage. Whether any Governor acting reasonably would have failed to do what the appellant says should have been done is the ultimate question.

47. But what is the yardstick by reference to which it is to be answered in the present case? In my judgment, it is at least reasonably arguable that what the Judiciary would inevitably have done is the correct yardstick to apply in the circumstances of the present case.

Appellant's next submission

48. That brings me to the appellant's next submission. It is, as I have indicated, that the Judiciary would inevitably have dealt with him more leniently than the Executive has.

Merits

49. This submission brings us face to face with the merits. We are dealing with the treatment of offenders coming before the courts. The liberty of the individual is involved. And the mitigating factor here in question is peculiarly within the competence of the courts to weigh. Recourse to the prerogative of mercy arose only because the course adopted by the sentencing judge, in the light of the exigencies as he saw them, brought it within the scenario. I would not like to think that, in such circumstances, the courts were precluded, whether by matters of form or anything else, from considering the merits and doing justice according to the merits.

Crucial question

50. Is it reasonably arguable that if the courts had dealt with the appellant from start to finish they would inevitably have dealt with him more leniently than the Governor has?

51. That is the crucial question. If the answer is "yes", leave to apply for judicial review should have been given, and this appeal would have to be allowed. But if the answer is "no", such leave was rightly refused, and this appeal would have to be dismissed.

Answer

52. The section under which the appellant was convicted is directed against corruption. No adjective is needed to convey the gravity of someone like him offending against such a provision. The facts speak for themselves. Progress had been made in the fight against corruption. Attention was turning towards tackling commercial crime. A unit was set up accordingly. He became the head of that unit. That carried responsibility. And it involved trust. To what degree is self-evident. He cast aside that responsibility. And he betrayed that trust. Instead of furthering justice, he sold it.

53. There was, it is undoubtedly true, powerful mitigation in his plea of guilty, the information which he supplied and the evidence which he gave.

54. But the maximum prison term under the section against which he offended is 10 years. The Governor dealt with him so as to leave him with a seven-year term.

55. Is it reasonably arguable that the courts would inevitably have dealt with him more leniently than the Governor has? In the circumstances which I have just outlined, the answer, in my judgment, is "no".

Result

56. Leave was rightly refused. I would dismiss this appeal.

Liu, J.:

57. The test the appellant had to satisfy, on his application for leave to apply for judicial review, was whether the material before the judge had disclosed matters which on further consideration might demonstrate an arguable case for the grant of the relief claimed. I agree that none of the submissions made is so potentially arguable in the field of administrative law and that the appeal should be dismissed.

Litton, J.A.:

58. I agree wholly with Mr. Justice Bokhary's judgment and, for the reasons he has given, would dismiss this appeal.

59. The course the sentencing Edge has adopted in this case - "suggesting" that the Governor might? consider a reduction of three years from the sentence imposed if the appellant evidence came "up to proof" - was most unusual. It goes beyond the practice ?mentioned in The Queen v. Sze Tak-hung [1991] HKLR 109 at 112B and calls into question the propriety of involving the executive in the sentencing process i? this way. The responsibility for the proper punishment of offenders rests with the courts. This is done by the application of guidelines and principles to the facts of the particular case: guidelines and principles which the courts themselves have evolved over the years. When the court gives a defendant a discount of 50% of the sentence for the assistance he has rendered to the police in the prosecution of other offenders, or even a two-thirds reduction for the "super-grass" - see, for instance, the observations of Roberts CJ in The Queen v. Chan Fu-kui [1986] HKLR 967 at 968E to F - it articulates its reasons in open court, applying well- considered policy reasons to the treatment of offenders. As a matter of principle it seems to me that the practice of "leaving it to the executive" to deal with the proper discount under Article XV of the Letters Patent can only be justified if there is no other course the courts themselves can properly take, since the remission of sentence under Article XV is done behind closed bureaucratic doors and is the exercise of a purely executive function.

60. Reference in the course of argument has been made to the observations of Cooke P. In Burt v. Governor-General [1992] 3 NZLR 672 at 681 line 52 to the effect that the prerogative of mercy has, in New Zealand, developed to become "an integral element in the criminal justice system". I do not understand his observation to be an approval of the sloughing-off of part of the court's sentencing function to the executive. It was made in the context of the correction of abuses and errors, and as a constitutional safeguard against mistake.

61. The Queen v. Sze Tak-hung was decided by this court in September 1990, 'before the enactment of the Hong Kong Bill of Rights Ordinance. It may be a matter for consideration in the future as to whether Article 10 of the Bill of Rights has altered the defendant's rights in any way, when it comes to the consideration of the proper discount he should receive for co-operation with the prosecuting authorities.

62. It is worth observing that in The Queen v. Sze Tak-hung at 113A this court emphasized the point that the sentencing process did not stop with the court below and that it continued until finally dealt with by this court; and at p.112A the Acting Chief Justice observed that it was not uncommon for this court to take account of circumstances that had occurred since sentence was passed. A relevant circumstance might well be the fact that, since sentence was passed, the defendant has testified in other proceedings, or given assistance in other ways in the pursuit or conviction of other offenders. If this be an appropriate route for a defendant to take then recourse to Article XV, even in those cases where postponement of sentencing was not feasible, should be very rare indeed.

63. The observations I have made do not affect this appellant, as we have not been asked to exercise any functions in the sentencing process.

64. The result is that the appeal is dismissed. We will now hear the parties as to costs.