GARY WILLIAM MOORE v. THE ROYAL HONG KONG JOCKEY CLUB

1988, No. A7520

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. From about August 1985 until February 1986, the Independent Commission Against Corruption (ICAC) with the assistance and co-operation of The Royal Hong Kong Jockey Club (the defendant) carried out a lengthy and detailed investigation of suspected race fixing in Hong Kong which involved several jockeys, trainers, owners, an employee of the defendant, and a number of other individuals who are not directly connected with the defendant which has come to be known as the Shanghai syndicate. As a result of the investigation, a large number of arrests were made on the 20th February 1986, one being that of Gary William Moore (the plaintiff) on suspicion of involvement in race fixing. After his arrest, the plaintiff was granted bail.

2. The plaintiff was a very well known professional jockey in Hong Kong from 1971 to 1986 during which time he was the champion jockey on seven occasions. At the time of his arrest the ICAC did not have any evidence upon which the plaintiff could be charged with any criminal offence. However, it was believed that he might be a potentially important witness for it was the intention of the ICAC to prosecute as a matter of priority the core members of the syndicate. Accordingly, it was hoped that this could be achieved by enlisting the assistance of some of the jockeys, and in particular the plaintiff, having regard to his standing and experience. The plaintiff was given a choice either to co-operate by becoming a witness for the Crown or to remain silent in which case depending upon evidence that might be obtained from the other persons who had been arrested, he might be charged. The plaintiff decided co-operate and made four statements to Mr P.A. Anderson, formerly an Assistant Director of Operations of ICAC, on the 20th, 25th, 26th and 27th of February, 1986. In those statements the plaintiff disclosed that he knew Bill Chan (Chan) a race horse owner with whom he had a "punting" relationship. As a result of this relationship Chan would arrange to place bets for the plaintiff which, if he won, would be paid over to him but if he lost, Chan would bear the losses. The statements were described as "non-prejudicial" the basis that they would not be used in evidence against the plaintiff in any court or in any disciplinary proceedings. In fact Mr Anderson gave an express assurance to this effect on behalf of the ICAC together with a further assurance that none of the statements would be passed to the defendant for use in disciplinary proceedings in respect of breaches of the rules of racing. Two other statements were made by the plaintiff to the ICAC the first in London on the 5th May 1986 and the second in Hawaii on the 12th February 1987. When he made the statements, the plaintiff admitted that he had been asked by Chan to prevent horses running on their merits, but denied that he had ever done so. Upon the evidence in the statements Chan was regarded as one of the core members of the syndicate in respect of whom the plaintiff was considered to be a vital witness.

3. Following his arrest, the plaintiff's licence was suspended by the defendant. However, on the 28th February 1986, the plaintiff was released from bail and left Hong Kong for France where he had been retained to ride. When the plaintiff left Hong Kong, it was on condition that he would in due course return to give evidence at the trial of Chan. The suspension of the plaintiff's licence was lifted by the defendant on the 1st March 1986.

4. At the beginning of 1987, the defendant, without the consent or authority of the plaintiff, came into possession of the four statements that the plaintiff had made to the ICAC in February 1986. In May 1987, the Stewards of the defendant had come to the conclusion that the plaintiff had been guilty of serious breaches of the rules of racing and decided that he should be charged as soon as his statements became officially available, for it was conceded that they could not proceed to use them without the authority of the ICAC. Since that time all the statements have been officially received by the defendant.

5. After the committal proceedings in September 1987 an indictment was preferred against Chan and other accused on the 15th October 1987 alleging conspiracy to cheat at gambling. One of the witnesses named in the indictment was the plaintiff.

6. Although the plaintiff had been allowed to leave Hong Kong upon the clear understanding that he would return to give evidence in the trial of Chan, it was nevertheless recognised that the defendant might be aggrieved by the assurances that had been given that the evidence obtained could not be used in any disciplinary proceedings. However, the ICAC were of the opinion that the public interest would be better served by the prosecution of the core members of the syndicate in preference to the jockeys.

7. With the trial of Chan due to commence in January 1988, although in the even it did not start until May, the ICAC were faced towards the and of 1987 with the problem of the plaintiff's return to give evidence, for without his evidence they believed the case might fail. The ICAC were also concerned that if the plaintiff were to give evidence, his credibility as witness would be attacked if he had not previously been dealt with by the defendant in respect of those breaches of the rules of racing which it was anticipated he would disclose during the course of giving evidence. It was therefore felt that the plaintiff's credibility would be improved if he could say that he had been charged and dealt with by he defendant before he gave evidence. The defendant had in fact drawn up 254 charges alleging breaches of the rules of racing which they proposed to prefer against the plaintiff. With this end in view, Mr Anderson saw the plaintiff in France towards the end of October 1987 in which he discussed with him a proposed deal whereby the defendant would charge him with a relatively small number of charges arising out of his dealings with Chan and hold the balance in abeyance provided that he agreed to assist the defendant in any disciplinary proceedings which might be brought against Chan. However, the plaintiff refused to accept the deal that had been proposed.

8. Ultimately it became apparent that the plaintiff would not return to Hong Kong to give evidence at the trial unless he was granted an absolute immunity by the defendant from any disciplinary proceedings. It is clear from the evidence that the defendant was reluctant to grant an Immunity, but was eventually persuaded to do so by the prosecution in the public interest. The immunity that was eventually agreed and signed by the plaintiff was dated the 10th March 1988 and reads as follows:-

" The Royal Hong Kong Jockey Club

From : The Chief Executive

   The Royal Hong Kong Jockey Club

To : Gary William Moore

Dear sir,

1. At the request of the Director of Public Prosecutions, on behalf of the Commissioner of the Independent Commission Against Corruption ("ICAC"), conditional on your fulfilling paragraph 2 below, the Stewards of the Jockey club have resolved to afford you absolute immunity with respect to the contraventions of the Club's Rules of Racing, if any, disclosed by (a) your interviews at the offices of the ICAC on the 20th, 25th, 26th and 27th February 1986 and your interviews in England and Hawaii on, respectively, 5th May 1986 and 12th February 1987, (b) any information which the Club currently has in its possession or which may subsequently come into its possession and whether from a third party or otherwise or (c) to be provided by you or to be revealed by you whilst giving evidence at the Chan Trial.

2. The conditions referred to above and to be fulfilled by you are:-

2.1 if and when requested so to do by the ICAC you will attend in Hong Kong for interview by the ICAC and attend and give viva voce evidence at the trial of, inter alia, one Chan Wai Lim ("Chan") with respect to the charge which has been preferred against him as particularised in the copy Statement of Offence annexed hereto (Annexure A) and which trial is presently scheduled to take place from and including the 2nd day of May 1988 ("the Chan Trial"). The terms and conditions on which the ICAC may request you attend for interview and give evidence at the Chan Trial are a matter for agreement between you and the ICAC; and

2.2 Without the prior approval in writing of the Club the contents of this letter will be maintained by you as confidential and will not, save when required so to do bylaw, be communicated by you to any third party, excluding your legal advisers, the, ICAC, Counsel and Solicitors for the prosecution in the Chan Trial and as part of your evidence at the Chan Trial.

3. In consideration of your fulfilment of the conditions set out in paragraph 2 above the Club agrees not to publish or supply or disclose the contents of the statements made by you to the ICAC to any other Racing Authority or Jockey Club or any third party provided, that this shall not preclude the Club from conforming to the requirement of any statute or order made by a court of competent jurisdiction.

4. Your acceptance of this offer of immunity shall not be binding on the club until you have been fully and competently advised hereon by independent legal advisers as confirmed by you by your signature in the appropriate space at the foot of this letter.

    I, Gary William Moore, confirm that I understand the foregoing and that I have been fully and competently advised by independent legal advisers thereon. I therefore accept the offer extended to me in the terms of this letter.

 

 

Sd. (Gary william Moore)

Witness ........."

9. The trial of Chan and the other accused commenced on the 2nd May 1988. The plaintiff attended as a witness at the trial and gave evidence from the 17th to the 20th May 1988. After the plaintiff had completed his evidence he returned to France.

10. One the 30th May 1988 the trial judge declared a mistrial after one of the witnesses, another jockey, had spoken of one of the jurors about the case.

11. Subsequently the plaintiff was contacted as to whether he would attend the retrial of Chan which was fixed to commence on the 16th January 1989. At first, the plaintiff indicated that be would be prepared to return to Hong Kong for this purpose, but has since resiled from this promise and is no longer prepared to do so. When the plaintiff's decision not to return to Hong Kong for the retrial came to the knowledge of the Stewards of the defendant, a decision was made on the 5th November 1988 that the immunity should be declared null and void and that charges be preferred under the rules of racing against him. Pursuant to this decision, the plaintiff was informed that an enquiry would take place on the 12th December 1988 with regard to a number of charges. He was also informed that the evidence to be adduced would be based upon the statement that he made in London on the 5th May 1986.

12. On the 21st November 1988, the plaintiff instituted the present proceedings seeking, inter alia, declarations that he has attended and given evidence at the trial of Chan in accordance with the terms of the agreement, that the agreement does not contain any term or condition that the plaintiff do attend and give evidence at a retrial or at any other trial of or proceedings against Chan subsequent to the discharge of the jury on the 30th May 1988 and that the defendant is not entitled to prefer any charges against him or hold any enquiry involving the plaintiff in respect of contraventions of the rules of racing. An interlocutory injunction was granted to the plaintiff on the 9th December 1988 pending the full hearing of the action. The statement of claim was subsequently amended and included allegations that the defendant did not act fairly or in accordance with the rules of natural justice, but these allegations have since been abandoned.

13. Apart from his contention that he has fulfilled the terms of the agreement by attending the trial in May 1988, the plaintiff also argues that there is a duty of confidentiality on the part of the defendant that precludes the defendant from using the statements made by the plaintiff to the ICAG in support of evidence to be preferred upon the disciplinary charges.

14. By the re-re-amend defence, the defendant contends that the mistrial declared by the judge on the 30th May 1988 was a nullity in law or was not a trial within the meaning of the terms of the agreement.

15. On behalf of the plaintiff, Mr Clarke submitted that there are two questions to be answered by the court, viz. :-

1. Having regard to the agreement of the 10th March 1988, did the plaintiff attend and give evidence at the trial of inter alios Chan with respect to the count of conspiracy to cheat at gambling being the trial which at the 10th March 1988 was due to commence on the 2nd May 1988?

and 2. Are the defendants entitled to make use of the statement of the 5th May 1986?

Mr Clarke contended that if the answer to the first question is "Yes", then the defendant's institution of disciplinary proceedings and their threat to continue them are both unlawful and the plaintiff is entitled to injunctive relief. However, if the answer to the first question is "no" and the answer to the second question is also "no", the plaintiff is still entitled to injunctive relief in relation to the statement.

16. The thrust of Mr Clarke's argument was that the plaintiff was only required to attend and give viva voce evidence at Chan's trial due to commence on the 2nd May 1988 and that it was this trial and no other upon which the parties had focused their attention. He cited R. v. Tsui Lai Ying & Others [1987] H.K.L.R. 857 at 871 that the form of immunity was not in the usual form for it did not refer to the witness attending at any subsequent trial or trials arising out of the offence in question. In fact the ICAC had submitted a draft form of immunity to the defendant that was not used in which the second paragraph is material and reads:-

"That you give full and true evidence at any preliminary enquiry and trial or trials of the said Chan Wai-lim alias Bill Chan, Tang Fei-wan alias Allen Tang, Tam Man-chau, Chan Yuk-pui and Wong Yung-sang in connection with the alleged offence of conspiring to cheat at gambling, contrary to common law and section 15 of the Gambling Ordinance, Cap. 147."

He therefore contended that there was no agreement that the plaintiff should ever attend a re-trial and that he has refused to do so because the agreement does not so refer.

17. Mr Clarke submitted that the trial was not a nullity because it was not void ab initio and of no legal effect so that no venire de novo could be ordered. He gave certain illustrations as to when a trial can be constituted a nullity and cited in support of his argument R. v. Neal [1949] 2 K.B. 590; R. v. Rose [1982] A.C. 822 and R. v. Newland [1988] 2 W.L.R. 382. However, none of these cases are relevant to the instant proceedings because they related to appeals from cases where a jury had returned a verdict or a sentence had been passed after a plea of guilty. A venire de novo can only be ordered when the trial is a nullity from the outset. There was no irregularity in this case for the judge merely exercised his discretion to abort the proceedings and to discharge the jury after the incident to which I have referred was reported to him by the juror and after hearing argument from counsel.

18. Mr Ching who appeared for the defendant submitted that a trial means a completed trial and in this respect drew my attention to Words and Phrases Legally Defined, 2nd ed., to the definition of trial on page 222 and also the supplement to the same edition on page 278 and the case of Gardner Steel Ltd, v. Sheffield Brothers (Profiles) Ltd. [1973] 1 W.L.R. 916 where Stephenson, L.J. at pages 918 and 919 said:-

"But Mr Peppitt has called our attention to a definition in the current edition of Stroud's Judicial Dictionary, 4th ed. (1974), p. 2827. 'Trial; tried. (1) A trial is the conclusion, by a competent tribunal, of questions in issue in legal proceedings whether civil or criminal.' That seems to me to be a natural interpretation of the words 'trial' and 'tried '

It is further significant that Chan would not be able to plead autrefois acquit at a retrial for the jury did not return a verdict either for a conviction or for an acquittal. The circumstances show that the trial was only part heard when the judge discharged the jury with the result that the trial does not come within the meaning of the terms of the agreement made on the 10th March 1988.

19. However, the issue can in any event be decided as a matter of construction. Do the words as set out in the agreement merely restrict the plaintiff to attending the trial that was due to commence on the 2nd May 1988. The material words for consideration set out in paragraph 2.1 read as follows :-

"If and when requested so to do by the ICAC, ...... attend and give viva voce evidence at the trial of ...... (Chan) with respect to the charge ...... and which trial is presently scheduled to take place from and including the 2nd day of May 1988 (the Chan trial) ..."

Those words are plain and unambiguous and do not, in my judgment, restrict the plaintiff to attending once as was submitted by Mr Clarke, but on each and every occasion when requested for the trial. Accordingly, even if the trial had been completed, which as I have said I find that it was not, the agreement necessarily includes a retrial or any other trial for the offence referred to relating to Chan. The plaintiff's obligations did not therefore cease once he had gone into the witness box and completed his evidence. As a result, I am quite satisfied that upon a proper construction of the agreement dated the 10th March 1988, that the plaintiff is still contractually bound to attend the court for the retrial that I am told at present stands adjourned until next month. The answer therefore to the first question posed on behalf of the plaintiff is "No".

20. In respect of the second issue, Mr Clarke argued that the statements given by the plaintiff in February and May 1986 and February 1987 were given to the ICAC in confidence and upon the basis that they would not and could not be used to prejudice the plaintiff in court or in disciplinary proceedings. For the plaintiff, as contended that as the information given to the ICAC was confidential and confided to Mr Anderson, there arose a relationship of trust and that by virtue of the express assurance given that it was not to be used in court or in disciplinary proceedings, that there still exists a duty by a third party, the defendant, not to use that information obtained in confidence to the plaintiff's detriment. It was submitted that on the basis of fair dealing, the defendant is not entitled to use the information so as to take advantage of the concerns to breach the trust which had been given to the confidant the ICAC. Mr Clarke also argued that whilst the case concerns private rights in contract and confidence, there is also the public interest at stake, namely that persons in authority such as the ICAC and the defendant should keep their word and that when someone such as the plaintiff, has volunteered a great deal of information for the assistance of the authorities upon the faith of assurances that such information will not he used against him, the authorities should respect such assurances, both on the sound moral basis that they should keep their word and upon the equally sound practical basis that if it cannot be trusted, no one will ever assist them in the future. The defendant was not a party to the ICAC agreement with the plaintiff so that agreement is, in any event, not relevant to the instant Proceedings. Nevertheless, it would be a startling proposition if an agreement as to confidentiality between the plaintiff and the ICAC could result in the defendant being precluded from taking disciplinary proceedings when the plaintiff is in clear breach of his own obligations under his agreement with the defendant. That agreement was, in the first place, entered into with reluctance by the defendant at the request of the prosecution because the Stewards had accepted that the public interest to prosecute the criminal offences against the core members of the syndicate outweighed the interests of the defendants right to institute disciplinary proceedings. I accept that the agreement as to confidentiality between the ICAC and the plaintiff is in no way binding upon the defendant and, in any event, in my judgment, it would be a preposterous situation if that was the law. There has, in this case, been a deliberate repudiation by the plaintiff of the terms of his agreement with the defendant by his failure to return to Hong Kong for the retrial for what have beets described as personal reasons. Any right that the Plaintiff had to confidentiality was forfeited by his failure to honour his agreement with the defendant. The second issue that was argued on behalf of the plaintiff is misconceived so that the answer to the second question is "yes".

21. Accordingly, the declarations that have been sought by the plaintiff are refused and the action will be dismissed.