KEVIN BARRY EGAN v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION AND OTHERS

1990, No. MP3513

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HEADNOTE

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CHARGES NOT ALLEGING CORRUPTION - SECTION 12 MAGISTRATES ORDINANCE - SECTION 10 ICAC ORDINANCE - ICAC WARRANT HOLDER AUTHORISED TO LAY INFORMATIONS

1990, No. MP3513

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This application was heard in Chambers, but the issue being of general interest and of particular importance to certain other parties, judgment is given in open court.

2. Charles Warwick Reid, formerly Deputy Crown Prosecutor, was arrested by the ICAC in October, 1989, on suspicion of corruption. He was released on bail, but in December he absconded. He was located in Manila in March, 1990 and deported to Hong Kong. On 6th July he pleaded guilty to being in control of property disproportionate to his official emoluments, contrary to section 10 of the Prevention of Bribery Ordinance, Cap.201 and was sentenced to eight years imprisonment.

3. In May Reid had been granted immunity from prosecution in respect of other matters on condition, inter alia, that he pleaded guilty to the section 10 offence and gave truthful evidence in court in respect of other criminal offences of which he had knowledge.

4. To this end he made a lengthy statement in June, in which he gave a detailed account of his corrupt activities between 1986 - 1989. He implicated several Hong Kong lawyers but not the applicant.

5. Reid made a further statement on 30th August - after his conviction - in which he described his escape from Hong Kong and his subsequent activities in China and Manila. He alleged he told the applicant in November, 1989, that he was "dead on a section 10" and intended to return to New Zealand. The applicant urged him to fight the charge, but later promised to supply him with a shotgun for self-protection during the journey.

6. Reid said that the applicant later gave him his own passport and a small handgun, but told him he could not obtain the shotgun. In the end, however, Reid threw away both the passport and the handgun before leaving Hong Kong. He had no further contact with the applicant.

7. As a result of these disclosures, the applicant was arrested next day by ICAC Chief Investigator, Alfred Morris. His home and office were searched under a warrant issued pursuant to section 10(B) of the ICAC Ordinance Cap. 204, and he was then taken to the ICAC Headquarters, where he participated in a video-recorded interview. Mr. Morris told him he was not suspected of corruption; the ICAC was solely concerned with an allegation that he had assisted an offender unlawfully to leave Hong Kong. The applicant denied this and did so again during an interview on the following day.

8. On 1st September the applicant was charged by Mr. Bell, an ICAC officer, using ICAC forms, with three offences under the Immigration Ordinance, the Firearms and Ammunition Ordinance and the Criminal Procedure Ordinance. He was taken to Central Magistrates Court, where informations in respect of these three charges were laid before the magistrate by Mr. Morris. The prosecution was represented by Mr. Mark Johnson, a solicitor of Messrs Herbert Smith & Co, instructed by the Attorney General, who opposed bail. He was accompanied by Mr. Francis Lee, another ICAC officer. The applicant was remanded in custody until 10th September, when he was granted bail by a High Court judge.

9. On 1st October the applicant was charged by Mr. Bell with two further offences under the Firearms and Ammunition Ordinance and with one offence under the Police Force Ordinance. Informations in respect of these charges were laid before the magistrate by Mr. Johnson.

10. There followed a third interview at ICAC Headquarters, during which the applicant protested that the ICAC had no jurisdiction to enquire into suspected offences under the Firearms and Ammunition Ordinance.

11. Between lst and 8th October the applicant wrote three letters to the Attorney General, in which he asked that the charges against him be withdrawn, on the basis that the ICAC lacked jurisdiction to investigate, or lay informations in respect of, such charges. The Attorney General replied that he would refer the points raised to Messrs Herbert Smith and, through them, take the advice of Leading Counsel.

12. Messrs Herbert Smith wrote to the applicant on 23rd October, informing him that, on the advice of Leading Counsel in London, there was no merit in the points raised by the applicant and that the prosecution was properly constituted.

13. The applicant appeared before the magistrate again on 24th October, when the prosecution, represented by Mr. Adrian Huggins, sought a return day for his committal for trial on the six informations. The applicant elected for a preliminary inquiry, but said he proposed to challenge the court's jurisdiction to commit him for trial. The matter was adjourned to 7th November to enable the applicant to take advice, with a view to applying to the High Court for Judicial Review.

14. On 6th November the applicant obtained leave ex parte from Saied J, which included a stay of the committal proceedings. The hearing of the application has been set down for three days in May. The respondents now ask that the leave granted on 6th November be set aside and the stay lifted.

15. In his notice of application the applicant seeks:

16. The respondents' main ground for their application to have leave set aside is that the applicant's notice discloses no arguable case and is hopeless and vexatious. In particular it is submitted by Mr. Huggins that the decision to prosecute and the institution of charges have been by, or on behalf of, the Attorney General, not the ICAC, whose role was investigation, followed by the providing of the fruits of that investigation to the Attorney General and to the solicitors appointed by him.

17. Mr. Huggins also submits that, the charges being properly before the magistrate, he has a statutory duty to enquire whether the evidence is sufficient to warrant the applicant's committal for trial.

18. An affidavit on behalf of the respondents has been filed by Mr. Johnson, the last paragraph of which reads:

19. Section 10A (1) provides:

20. Because the offences did not involve corruption, Mr. McCoy, for the applicant, submits that the ICAC should have proceeded under (a). Mr. Huggins says it had the option.

21. It is a cornerstone of the respondents' submission that the charges faced by the applicant are charges connected with an investigation into corruption offences suspected to have been committed by Reid.

22. The applicant says in his 1st October letter to the Attorney General that he believes that the investigation into Reid's corrupt activities ended with his conviction on 6th July. Had that been the case, section 10(2) would not have been triggered and it would have been arguable that Mr. Morris had no jurisdiction to lay any of these informations.

23. Mr. Johnson's affidavit makes it clear, however, that the Reid investigation was - and is - continuing. His immunity is conditional on the usual factors and a further prosecution, though unlikely, cannot be ruled out. He may, in addition, have more information to give concerning corruption in the legal profession, which it would not be improper for the ICAC to enquire into even after his conviction.

24. Mr. McCoy does not challenge Mr. Johnson's bona fides and accepts that this aspect of his affidavit is true. This ground of objection to jurisdiction, although based on beliefs sincerely held, must therefore go.

25. Mr. McCoy submits that there remains an important arguable point, namely that the prosecution, for offences not involving corruption, is brought by the ICAC in fact if not in name, and that this is not the function of that body, nor was it intended by the legislature, and the court therefore lacks jurisdiction to try the charges.

26. It is impossible, in my judgment, to reconcile this submission with section 12 of the Magistrates Ordinance, which provides:-

27. Provided -

28. An authorisation under this section was made on 14th March, 1979, by Mr D.R. Boy, Crown Prosecutor, who was himself authorised by the Attorney General to make it under section 7 of the Legal Officers Ordinance. The authorisation is in these terms:-

"I, David Raymond Boy, Crown Prosecutor, in exercise of the powers vested in me by section 12 of the Magistrates Ordinance by virtue of an authorisation to me by John William Dixon HOBLEY, Q.C., Attorney General, under section 7 of the Legal Officers Ordinance, Chapter 87, do hereby authorise each and every officer of the Independent Commission Against Corruption appointed under section 8 of the Independent Commission Against Corruption Ordinance, Chapter 204, to whom the Commissioner of the Independent Commission Against Corruption has issued a warrant card under section 9 of that Ordinance, to lay before a magistrate information in respect of any offence cognizable by a magistrate alleged to have been committed contrary to any of the enactments referred to in the Schedule hereto, or in respect of any other alleged offence cognizable by a magistrate disclosed in the course of the investigation of any alleged or suspected offence under any of the enactments referred in the Schedule hereto."

29. Mr. Morris possess a warrent card issued under section 9 of the ICAC Ordinance and is therefore authorised to lay an information before a magistrate "in respect of an offence."

30. Mr. McCoy was under the impression that Mr. Hobley's authorisation had been superseded by GN 1818 published in government gazette No. 22/86 and that this made the appointment of Mr. Morris ineffective. GN 1818 authorises the Crown Prosecutor to exercise and discharge the rights and duties which the Attorney General is entitled to exercise or required to discharge by virtue of the Common Law and the enactments specified in the First Schedule to the notice.

31. Mr. Huggins has rightly pointed out that GN 1818 is an authorisation by the Attorney General under the Legal Officers Ordinance and, as stated in the notice, cancels a11 such previous authorisations, including that directed to Mr. Hobley. It does not cancel the authorisations made by Mr. Hobley under section 12, which are unaffected.

32. Mr. McCoy argues that section 12 is concerned only with summary offences, on the grounds that it appears in Part II of the Ordinance, which is headed "Procedure in respect of Summary Offences". Such a limitation is not apparent in the wording of section 12, for "all offences cognizable by a magistrate" include indictable offences triable summarily and indictable offences committed to the High Court.

33. Section 15(l), which is also in Part II provides:-

34. Section 26 refers to an offence "other than an indictable offence", which would be unnecessary if Part II dealt only with summary offences.

35. Furthermore in Part III, which deals with the committal for trial of indictable offences, section 72 lays down the procedure after an information for an indictable offence has been laid, but it is only in section 10, in Part II, that the manner of laying an information is described.

36. There can be no room for argument, therefore, that section 12 relates solely to summary offences. The fact that GN 1818 refers in the First Schedule to "Authorisation to institute and prosecute summary cases" is irrelevant. There is no evidence that the authorisation to Mr. Hobley was so worded, but even if it was, it cannot limit the Attorney General's rights and duties under section 12, which are delegated to the Crown Prosecutor.

37. Mr. Morris, being within section 10(2) of the ICAC Ordinance, was empowered by his warrant and the Hobley authorisation to lay the first three informations, which are deemed to have been laid on behalf of the Attorney General. The remaining three informations were laid by Mr. Johnson on behalf of the Attorney General and are unassailable.

38. Proviso B to section 12 of the Magistrates Ordinance specifically states that public servants, such as Mr. Morris, shall not be deemed to be a party to the proceedings.

39. I have no doubt that these informations were lawfully laid, on behalf of the Attorney General and not by the ICAC, in accordance with statutory authority and that the magistrate has jurisdiction to hold committal proceedings against the applicant.

40. The order of Saied J. is set aside and the stay of the criminal proceedings is lifted.