M v. ATTORNEY GENERAL

1988 No. M. P. 511

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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DECISION

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1. This is an application for judicial review; leave having been given by Mr. Justice Barnett on the 18th March of this year.

2. The applicant seeks an order of certiorori to remove into this court and quash a decision made by the Commissioner of Police on the 7th October of last year that the applicant was not entitled to a certificate of no criminal conviction for the purposes of his application for a resident's visa in Portugal.

3. At the opening of the hearing, on Mr. Westbrook's application, I made an order that the name of the applicant should not be published but that he should be known as Mr. M. The application concerns his previous but spent conviction. Such an order was necessary to avoid injustice. Those matters still apply. I said at the time that I would consider this matter further. I now make the order permanent in relation to these proceedings.

4. The background of the matter is this. Since 1978 it has been the practice of the Commissioner of Police to provide the appropriate certificates relating to the previous conviction's or absence of them to persons, and only those persons, who have applied to a foreign government for a resident's visa or its equivalent. There is no legal obligation on the Commissioner to provide this service. The practice is for the applicant to apply in person by signing a form, paying a fee, and producing proof that he has made a visa application. He is then finger-printed and the records of the Royal Hong Kong Police are checked against his personal particulars. Generally speaking, the police records contain criminal convictions resulting from prosecution initiated by the police rather than other institutions or departments but there are exceptions. After the check has been made, one of three letters is sent to the applicant himself, either:

5. Where a conviction has been recorded which is "spent", a chop to this effect is placed upon the letter showing the conviction.

6. These letters are provided to the applicant so he may make use of them in his application for a visa to an overseas country. This is the only circumstance in which such letters are provided.

7. It is said in the affirmation of the Senior Super-intendent Ferguson that some forty foreign governments ask for certificates of no criminal conviction in respect of those in Hong Kong who apply for resident's visas or permits for those countries.

8. This application was made to the Commissioner on the 21st of September last year. The applicant paid his fee, provided a supporting letter from the Portugese Consul General and signed an application form. He signed that application form in these terms: (It is Exhibit F to Superintendent Ferguson's affirmation. )

"I have applied for a 'Certificate of No Criminal Conviction' and agree to give my finger-prints in connection with this application. I also agree that these finger-prints can be forwarded to the Consulate/Immigration Authority concerned together with details of any criminal convictions that may be recorded against me. "

9. It appears that on the 9th August 1984 the applicant was convicted on his plea of guilty of an offence of utter-ing a forged document in the Causeway Bay Magistrates Court. He was fined $1,000 and this is his only conviction. It is accepted that, subject to other provisions of the ordinance, the conviction is 'spent' within the meaning of Section 2, Sub-section 1 of The Rehabilitation of Offender's Ordinance 1986 Cap. 287 - to which I will refer in due course. Consequently, a certificate was issued on behalf of the Commissioner dated the 7th October 1987, which sets out the applicant's conviction together with a chop to the effect that it is 'spent' in Hong Kong. Correspon-dence then followed between the applicant and the Commissioner. The Commissioner was unwilling to provide the applicant with a certificate in any other form.

10. I turn now to consider the ordinance itself. Most developed systems of law now recognize a need for statutory provision of a man's right to 'live down' a pass conviction in certain specified circumstances. This has long been recognized in Hong Kong and other jurisdictions by judges who have to pass sentences. The Hong Kong Ordinance provides that a man may be rehabilitated in respect of any one offence provided that certain conditions are satisfied. The conditions are broadly, that he is sentenced otherwise than to death, imprisonment or a fine of more than $5,000, and that he has never been convicted of any other offence and he has not been convicted for at least 3 years. When those circumstances are satisfied the Ordinance provides that evidence of that conviction shall not be admissible in any proceedings; that the conviction or failure to disclose it shall not be lawful grounds for dismissing him or excluding him from or prejudicing him from any employment occupation or profession and by Section 2(1)(ii) (with which this case is mainly concerned) that if the individual himself is asked any question about himself, or any other person is asked such question about him, such a question shall be treated as not referring to that conviction. It follows that if any person who keeps a record is asked a question which he must answer, he must answer it without reference to the conviction even if otherwise, it would have been his obligation to disclose it. Similarly, if the individual is asked questions to which he must give answers for any purpose, he is protected and he can treat those questions as not referring to that conviction.

11. Of course, this provision inevitably causes difficulty. It has been characterized in the course of an argument as a licence to lie or to conceal but that pejorative description of the provision is unfair. The aim of the provision is to respect the wider interest of a rehabilitated offender. The mandatory words of Section 2(1)(ii) are to be noted. It provides that the individuals previous convictions, offences or circumstances 'shall be treated as not referring to that conviction' when the question is asked about the individual's previous spent conviction.

12. Also, by section 6 of the Ordinance any person who has the custody of, our access to, records and who otherwise than in the course of his duty discloses any information in those records, commits an offence and is liable to a fine. That is a wider provision than the earlier provision. It concerns information in the records not just the conviction.

13. To the provisions of Section 2 there are many exceptions. These are set out chiefly in Sections 3 and 4. Even in relation to spent convictions information can be given in specified circumstances or for specified purposes. Also, as one would expect, there is an exception if the person concerned authorises the disclosure of the information. This is in Section 6(5) which provides:

"The individual to whom Section 2(1) applies, may authorise the disclosure of any information specified in Sub-section 3 which relates to him and Sub-section 1 shall not apply any person acting under that authority. "

14. By Section 6(4), the Governor may 'in such circumstances that he thinks fit' authorise the disclosure of such information. It is to be noted that whereas in Section 2(1)(ii) the question and the information is limited to a person's previous conviction, the information specified in Section 6(3) is wider. It is not necessary for the purposes of this case for me to consider the differences between those two sections further.

15. The situation is, therefore, that disclosure may be a criminal offence under Section 6(1) but disclosure by a Public Officer in the course of his duty will not be a criminal offence. However, such disclosure may still be unlawful under Section 2(1)(ii).

16. I am satisfied that under Section 6(5) an individual may authorise the disclosure of a recorded conviction and that if he does so, this will not only protect a Public Officer who discloses that information from criminal liability, but it will also make any answer lawful in circumstances where it might otherwise have been unlawful under Section 2(1)(ii). In other words, the authority which an individual can give under Section 6(5) is not simply relevant as a defence to a criminal charge under Section 6(1).

17. In the course of argument, Mr. Whaley for the Attorney General, submits that the ordinance does not have extra-territorial effect. I agree. The general rule is such. It is conveniently reiterated by Dixon Jin Wanganui Rongitikei Electric Power Board v. Australian Mutual Provident Society [1934] 50 CLR at P. 601;

"... unless a contrary attention appears, statutory provisions are understood as having no application to matters governed by foreign law. "

18. This principle applies with particular force in Hong Kong for prima facie the legislature does not have power to make laws with extra-territorial effect save where the power is specifically granted as under the Hong Kong Act 1985 and the orders made thereunder. Further, a reading of the ordinance itself reinforces the conclusion that the legislature never intended this ordinance to have an extra-territorial effect. Indeed it could not have such effect. Take this case; if the applicant answered a question on a form relating to his previous convictions and he chose not to disclose this spent conviction, writing out the form here in Hong Kong for the purposes of the application for a visa to Portugal, he would be protected in any proceedings in Hong Kong by Section 2(1)(ii). Within Hong Kong his failure to disclose such a conviction would be lawful but whether or not he would be protected in Portugal from failing to disclose would depend upon portugese law. It is unlikely that Portugal has a precisely similar provision.

19. These considerations and the provisions of the ordinance have led to the Commissioner's dilemma in this case. The Commissioner has no obligation to answer the request posed by the applicant, however, he does agree in practice to answer his request only in cases where a foreign visa is sought. Then, knowing that the information is for use in this way and for use outside the jurisdiction, he feels he would be a party to misleading a foreign government if he were not to give the true and factual answer in relation to a conviction which is recorded, if he simply provided a 'certificate of no conviction recorded.' He feels this Would amount to misleading a foreign government. So rather than refuse to give any answer (as he would be entitled) he chooses to supply the information to the applicant on his request so he may make such use of it as he chooses. It has never been suggested in the course of these proceedings that the court could make any order requiring the Commissioner to give an answer to the request. It is, however, conceded for the purposes of these proceedings that the answer given by the Commissioner is reviewable by this court for its legality.

20. The importance of the point is undoubted. In 1987 there were some 53,000 applications of this mature and on the evidence before me on affidavit the same procedure was followed in respect of each of those applications.

21. I turn now to the particular facts and the submissions made in this case. The applicant contends that reply which the Commissioner made is unlawful and that the only lawful reply he could make is that no convictions are recorded against the applicant. He relies upon the mandatory effect of Section 2(1)(ii) of the Ordinance. The relevant part of that section reads:

"Any question asked of ... any other person, (i.e. the Commissioner of Police) relating to that individuals, (i.e. the applicant's) previous convictions ... shall be treated as not referring to that conviction..."

22. Mr. Westbrook contends that as it is conceded that conviction is spent, a question was asked of the Commissioner relating to the applicant's convictions, and in his answer he failed to treat the question as not referring to that conviction. He contends as the words "shall be treated" of the section are mandatory, the Commissioner has no discretion in the matter and, therefore, his answer is contrary to law.

23. Initially, it is contended on behalf of the Commissioner that he was not asked 'a question' within the meaning of the sub-section and therefore that the sub-section does not apply. I cannot assent to that submission. In making his application to the Commissioner the applicant was clearly asking a question relating to his previous convictions. Any other decision on the facts of this case, in my view, would place an absurdly technical construction upon the word 'question' in the section.

24. The central point which falls to be decided by me is whether the answer he gave setting out the conviction and stamping it as 'spent' within Hong Kong law is a lawful answer having regard to the effect of Ordinance.

25. Mr. Whaley further contends that Section 2(1) does not apply to this case because of the exceptions provided in Section 4(1)(c) and Section 4(2)(b). The relevant parts of these sections are:

                "Section 4(1). Section 2 shall not apply to –

I have heard submissions from both counsel upon the applicability of these two sections to this case, and in particular reference has been made to the definition of the word "proceedings" in section 2(5), and the meaning of the words "permit" and "under any law" in section 4. I turn to the definition of the word "proceedings" in section 2(5). The relevant part reads:

"For the purposes of this section and Sections 3 and 4, "proceedings" means any proceedings in Hong Kong by any ... person having power to ... receive evidence affecting the determination of any such application or question. "

26. "Such application or question" is any application or question affecting the rights, privileges, obligations or liabilities of any person.

27. Mr. Whaley submits that the application to the Commissioner of Police for a certificate of no convictions is a proceeding within the meaning of the sub-section by a person having power to receive evidence affecting the determination of a question affecting the applicant's rights, in relation to his suitability for a visa, which he also submits is a 'permit' within the meaning of section 4(1)(c). I am unable to accept this submission. Even if the word "proceeding" could be apt to cover the applicant's application to the Commissioner of Police, I am satisfied that he is not a person 'having power to receive evidence' within the meaning of the sub-section. In my judgment these words mean a power to receive evidence granted by law or consequent upon the persons office and that is an end of the matter on this point. Nor is the applicant's right to obtain evidence in his own cause covered by the section.

28. Mr. Whaley further argued that the application to the Commissioner was an application 'under Hong Kong law' and was therefore covered by the section. This also, I reject. The words "under any law" in section 4(1)(c) and 4(2)(b) qualify the word "permit". The words under any law" in this context and in this ordinance can only mean "under any Hong Kong law". I find no difficulty in rejecting submissions to the contrary because of the general rule of construction, and also a consideration of the whole ordinance leads to the conclusion that it is applicable to Hong Kong only. I am satisfied, therefore, that the words "under any law" qualify the word "permit" and relate only to Hong Kong law.

29. The short answer to these submissions is that a resident's visa in Portugal is not a permit under Hong Kong law and that neither section 4(1)(c) or 4(2)(b) apply to the facts of this case.

30. I now turn to consider the question whether the applicant has authorised the disclosure of information specified in section 6(3) under section 6(5). Section 6 is concerned with recorded information and its disclosure or non-disclosure and it covers a recorded conviction. The authorisation given by the applicant in Exhibit F to Superintendent Ferguson's affirmation dealt specifically with criminal convictions recorded against him. I am satisfied that he gave authority for the disclosure of that information within the meaning of section 6(5) which in these circumstances must be read in conjunction with section 2(l). I reject the submission that Section 6(5) is concerned only with the provision of a defence to a person who releases that information under Section 6(1).

31. Further, authority to release the information to a third party (that is the consulate) implicitly gives the Commissioner authority to release the information to the applicant. In any event, in my judgment, it was never within the contemplation of this legislation that it would be unlawful to release this information to a person about that person's own record of convictions confidentially upon that person's own request.

32. I am satisfied, therefore, that the Commissioner had the applicant's authority to release the information which he did release in his letter to the applicant. He also had the applicant's authority to release that information to the consulate; but acting with care and propriety and in accordance with his practice, he released it only to the applicant. It was then open to the applicant to deal with that information as he chose.

33. It follows that in making his reply, the commissioner was authorised, he was not in breach of section 2(1)(ii), and the answers he gave were not unlawful. It also follows that the application for certiorori must be refused.

34. In these circumstances, the other submissions of Counsel do not fall to be decided. But in deference to Counsel I deal with the particular point upon which I invited argument in relation to the territorial effect of the ordinance. As I have indicated, I agree with Mr. Whaley's submissions that this ordinance has no extra-territorial effect. Mr. Westbrook, however, submits that the point is irrelevant to the present case. Although it was known that the information given was only for use in relation to an application for a foreign visa, and in that way was only for use or effect outside Hong Kong, he says that the section 2(i)(ii) applies (unless otherwise exempted) on the basis that the question was asked in Hong Kong and the answer was given in Hong Kong. Although it is no longer of importance in this decision, I agree with Mr. Westbrook's submission that the question was asked in Hong Kong and answer was given in Hong Kong and therefore prima facie 2(1)(ii) applies because the relevant acts were performed within the jurisdiction. I was troubled also about the situation which may arise in relation to the police disclosing relevant information about a 'spent' conviction to interpol. I had in mind that the legislature could not have contemplated requiring the police to break international conventions about such disclosure. However, I am satisfied that this problem does not arise. If the disclosure is made outside the jurisdiction of information for use outside the jurisdiction then the ordinance does not apply. If disclosure is requested within the jurisdiction (although I heard no argument upon the point) I am satisfied that Section 6(4) empowers the governor to authorise disclosure of such information "in such circumstances as he thinks fit. " This provision clearly covers the situation that concerned me.

35. This result is that this application is dismissed with costs to the respondent.