LORRAIN ESME OSMAN v. THE ATTORNEY GENERAL AND ANOTHER

1988, No. MP 2245

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. I have before me a motion for judicial review pursuant to leave that was granted by Barnes J. on the 9th November 1988 on behalf of Lorrain Esme Osman (the applicant) for a declaration that the presentation of an information against him on the 30th November 1985 was invalid and for an order of certiorari to quash the warrant of arrest issued on that day.

2. The background to the application reveals that on the 30th November 1985, Mr M.D. Hill, a Principal Magistrate, sitting at the Western Magistracy, attended the offices of the Commercial Crimes Unit of the Attorney General's Chambers at the request of a senior member of those Chambers. In fact, as it was a Saturday morning, Mr Hill agreed to go to the Attorney General's Chambers because it also suited his own convenience rather than to wait in his own chambers. Mr Hill had been informed that a matter of some sensitivity that concerned the prosecution of persons in Hong Kong and the United Kingdom required his urgent attention. The reason was to consider an information that was laid by Mr A.E. Robey of the Independent Commission Against Corruption (I.C.A.C.) in support of his application for warrants of arrest, including a warrant to commence proceedings for the extradition of the applicant from England with regard to a number of offences. The reason for secrecy was in order to minimise any risk of alerting the applicant and the other persons concerned to the likelihood of their imminent arrest.

3. Mr Hill considered the application in the Attorney General's Chambers for a matter of about two hours during which time he sent out for his seal of office which he had not brought with him. The information was signed by Mr Robey in the presence of Mr hill after which Mr Hill administered the oath. Mr Hill then read the information which he eventually signed, dated and also attached his seal. Having perused all the documents placed before him, Mr Hill issued the warrants sought including that relating to the applicant. After completion of this procedure, Mr Hill agreed that the documents should remain in the custody of Mr Robey. The warrant for the arrest of the applicant was taken to London by another officer of I.C.A.C. who then passed it onto officers of the Extradition Squad of New Scotland Yard for service.

4. It was not until the 14th January 1986 that copies of the documents were actually lodged in the court file at the Western Magistracy and duly recorded in the Court Register. It is common ground that the procedure adopted on this occasion was unusual for in the normal course of events, after an information has been laid and a warrant issued, the documents will be taken to the clerk of the Magistracy who will give a number for the information and the warrant and attach the court seal.

5. Mr Thomas, Q.C., counsel for the applicant, has submitted that in granting the warrant of arrest, Mr Hill acted in breach of the rules of natural justice by reason of bias and as the information was not lodged with a proper of officer of the court until some weeks after the information was laid before him, the commencement of the proceedings did not take place until those documents were lodged. Mr Thomas argued that the mere swearing of the information before the magistrate was not sufficient for the purpose of the institution of proceedings. Although Mr Thomas conceded that a magistrate, in cases of necessity or urgency or by statute, may consider an information and issue a warrant outside the magistrate's chambers and before the information is lodged in court, he said that it is fundamental that he should retain custody of the information and ensure that it is filed and is properly recorded. He went on to submit that if the information and other documents are kept by the prosecuting authority, his decision to issue the warrant is not perfected so that the proceedings do not commence until the documents are lodged when control will pass to the court. An arrest under the warrant would, until that time, be unlawful. As a result in this case, the earliest time at which the proceedings could have been commenced was the 14th January 1986. Further, he said that there is inherent power in the jurisdiction of every court to protect itself from the abuse of its own procedure and that an abuse arises if there is an attempt to commence proceedings in secret, for it is oppressive and a breach of fundamental civil rights to put into the hands of the prosecuting authority the power to arrest and imprison an alleged offender without any public record of the source of its authority.

6. The gist of Mr Thomas' argument is that while conceding that a magistrate has the right to consider and issue a warrant before it is lodged in the court, nevertheless, in this case, by reason of the fact that the documents remained in the custody of the prosecuting authority, the court abnegated its responsibility by relinquishing control of the proceedings. While Mr Thomas cited some English authorities including Hill v. Anderton (1982) 2 All E.R. 963, these cases refer to the interpretation of section 127 of the Magistrates Courts Act 1980 which is the equivalent of section 26 of the Magistrates Ordinance. Mr Thomas also relied upon R. v. Heilbronn (1988) H.K.L.R. 216 where it was held, applying Hill v. Anderton, that an information is lodged as soon as it had been received by an authorised member of the court staff. In such circumstances whether or not a magistrate had notice of such an information would not affect its validity as fulfilling the requirements of section 26 of the Magistrates Ordinance. However, the decision in R. v. Heilbronn does not detract from the words of section 9(1) of the Magistrates Ordinance which reads :-

"9(1)    Where a complaint or information laid before a magistrate is substantiated by oath before him, the magistrate may, in the first instance, or notwithstanding that a summons has been previously issued, issue a warrant to arrest a defendant and bring him before a magistrate to answer to the complaint or information."

Section 72 which where relevant reads :-

"..... In every case where a complaint was made to or an information laid before a magistrate alleging the commission of any treason, felony or indictable misdemeanour or other indictable offence over which the magistrate has jurisdiction, then, if the accused is not then in custody, it shall be lawful for the magistrate to issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law: ........ Provided a warrant shall not be issued in the first instance unless the complaint or information is supported by evidence on oath."

There is no requirement in the Magistrates Ordinance or in any rules made thereunder for the information to be lodged with the court before it takes effect as was submitted by Mr Thomas.

7. The argument that the date for commencement of proceedings will be deferred until the documents are filed so that they will remain in a state of suspended animation defies both logic and common sense. The filing of the documents later in court is purely an administrative act. Accordingly, I am satisfied that the information was validly laid before Mr Hill on the 30th November 1985.

8. To contend that the process was an abuse because the proceedings were secret and a breach of fundamental civil rights gives the impression that the applicant was entitled to be present at the hearing whereas the application is made by the prosecuting authority ex parte and is normally heard in the magistrate's chambers. The further assertion that by retaining custody of the documents resulted in the judiciary relinquishing control of its proceedings is quite clearly not correct. By granting the warrant, the prosecuting authorities were merely authorised to take steps to apprehend the applicant and arrange for him to be brought before a magistrate. The issue of confidentiality was perfectly reasonable in the circumstances. As was submitted by Mr Findlay, Q.C., who appeared for the Attorney General, the jurisdiction of a magistrate is vested in the individual by virtue of his appointment under section 5 of the Magistrates Ordinance and not vested in the Magistrates Court.

9. Mr Thomas addressed me at great length upon the independence of the judiciary in Hong Kong and, particularly, with regard to the position of a magistrate who does not have, unlike a High Court judge or a District Court judge, security of tenure. Magistrates are appointed by the Governor under Article XIV of the Letters Patent upon advice given by the Judicial Service Commission. One of the appointed members of the Judicial Service Commission is the Attorney General. As section 3(3) of the Judicial Service Commission Ordinance provides that any resolution of the commission shall be unaminous, it therefore enables the Attorney General who combines the role of the Government's legal adviser and prosecuting authority in criminal cases, to veto the appointment or the re-engagement of a magistrate or the promotion of a magistrate to a higher position, although he stressed that he was not challenging the Attorney General or any other member of the commission in his personal capacity that he was likely to act unfairly. Mr Thomas went on to refer to a number of articles that have appeared in the Hong Kong Law Journal and the Far Eastern Economic Review that have criticised the role of the Judicial Service Commission in dealing with the appointments of magistrates. He said that any unusual contact between a magistrate and the Attorney General's Chambers and/or the Police or I.C.A.C. must be scrutinised with care and in particular, in this case, where Mr Hill had acceded to a number of requests including his attendance at the Attorney General's Chambers to carry out his functions and by considering the information and issuing the warrants and permitting the prosecuting authorities to retain the documents and finally later failing to see that the documents were filed with the court. With regard to these acts which Mr Thomas described as unprecedented, he contended that Mr Hill had compromised his judicial independence having been seen to have acquiesced in the circumvention of normal criminal procedure by the prosecution and to have permitted the prosecution to retain control of the criminal process. Mr Thomas submitted that when Mr Hill went to the Attorney General's Chambers, he was acting outside the framework of the law and the procedure laid down so that he was not acting as a magistrate and that the signing of the documents in these circumstances amounted to an abuse. By his presence at the Attorney General's Chambers, it was asserted that Mr Hill had evinced bias for he was ingratiating himself with the Attorney General by doing him a favour, thereby affecting his judicial independence. Therefore, having regard to the structure for the magistracy in Hong Kong with its lack of security of tenure, there was evidence of a real suspicion that reasonable members of the public observing these circumstances would think that there was a real likelihood of bias. The laying of the information and the procedure that led to the issue of the warrant of arrest involved the consideration by Mr Hill of the information in order to determine whether there was sufficient evidence presented to him to justify granting the application for the warrant of arrest.

10. As I have said, applications of this nature are normally heard in the magistrate's chambers ex parte in the presence of the prosecuting authority and the investigating officer. Accordingly the maxim audi alteram partem has no application. Nevertheless, the function of the magistrate is judicial so that the rules of natural justice apply. The only legitimate criticism that can be levelled at Mr Hill was his willingness, partly for his own convenience on a Saturday morning, to go to the Attorney General's Chambers to fulfil his function. There was clearly no legal objection to the magistrate hearing the application in the Attorney General's Chambers anymore so than hearing the application at his home, in a hotel, or on the golf course when it is necessary to do so as a matter of urgency. There was no evidence to the effect that Mr Hill did not carry out his duties properly by considering the sufficiency of the evidence before he granted the application for the warrant nor was there any allegation of malice, bad faith or bias in the personal sense. Criticism is directed to the fact that in the mind of the reasonable man, Mr Hill might have been influenced to attend the Attorney General's Chambers with a view to safeguarding his future, knowing that the Attorney General is an important member of the Judicial Service Commission when an application for a renewal of contract or a promotion post is being considered.

11. My attention was drawn by counsel to a number of authorities on the issue of natural justice including Wiseman v. Borneman [1971] A.C. 297 where Lord Guest adopted the words of Tucker L.J. in Russell v. Duke of Norfork [1949]1 All E.R. 109 at p. 118 :-

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth."

In another case Valente v. The Queen 23 C.C.C. (3 Edn) 193 in which Grandpre J. is quoted at p. 201 as follows :-

"The apprehension of bias must be a reasonable one held by reasonable and right-minded persons applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal that test is 'what would an informed person viewing the matter realistically and practically, and having thought the matter through concluded.'"

12. Having regard to all the circumstances, would a reasonable person have come to the conclusion that Mr Hill by carrying out his function to decide whether a warrant should be issued at the Attorney General's Chambers, believe that his judicial independence had been affected knowing that the Attorney General is a member of the Judicial Service Commission and therefore able to affect his future. In my judgment, this contention is wholly unrealistic, for I do not have the slightest doubt that it would have ever occurred to any reasonable and right-minded person. The argument that there was bias or any breach of the rules of natural justice must therefore fail.

13. The circumstances in this case appear to have been unusual and unique. The prosecution quite naturally wanted to keep the proceedings confidential otherwise "the cat might have been let out of the bag". Indeed, what justifiable criticism can be attributed to the prosecution when all they were doing was making an application to a magistrate for authority to arrest an alleged offender for serious offences. The magistrate was not trying the case so that he did not have to consider the other side. He was merely considering the sufficiency of the evidence placed before him for the purpose of deciding whether the application for the warrant of arrest should be granted. If he had heard the application in his chambers or at his home, no possible objection could have been taken. The nub of the applicant's complaint is that the application was heard in the chambers of the prosecuting authority. That I agree was unfortunate, but, nevertheless, understandable for Mr Hill was, in any event, coming into Central, and as I have said it also suited his own convenience as well as the prosecuting authority. I am sure that at the time he did not realise that he might be placing himself in an invidious position which would, three years later, result in the present proceedings. Although the circumstances were exceptional, the invitation from the Attorney General's Chambers should not have been made whilst Mr Hill was most unwise to have accepted the invitation. I trust that such a practice will not be repeated. However, that situation is far removed from the submissions that have been made on behalf of the applicant that it was an abuse of the court's procedure, oppressive, or that there was an infringement of his civil rights. None of these complaints has the least merit.

14. The motion is therefore dismissed with costs.