NICHOLAS DAVID HUNSWORTH v. THE REGISTRAR OF THE SUPREME COURT AND ANOTHER

1996 M.P. No.1250

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The applicant is a solicitor of Messrs Johnson Stokes & Master. On 30 January 1996, the applicant applied to the Registrar of the Supreme Court for a copy of the originating process in M.P. No.236 of 1996 that are ex parte proceedings taken out by the Attorney General for an order that a Letter of Request be issued to the Judicial Court of Macau for assistance in taking evidence to assist in the investigation of criminal activities that might lead to criminal proceedings in Hong Kong. The ex parte originating summons was duly provided to the applicant. However, the applicant was dissatisfied with the document provided in that a draft order that was stated to be "annexed" to the ex parte originating summons was missing. The applicant's efforts to obtain a copy of the draft order was unsuccessful. In the event, the applicant and the Attorney General went before P. Chan, J. to resolve the impasse in an inter partes hearing on 5 February 1996. To the applicant's dismay, P. Chan, J. rejected the applicant's arguments and refused access to the draft order. It was further directed by the judge that the draft order was to be sealed in an envelope not to be seen without leave of court.

2. Against that decision, the applicant appealed to the Court of Appeal. On 2 April 1996, by a majority decision, the Court of Appeal dismissed the appeal on ground that it could not be entertained. It was held by the majority of the court that the matter is one of public law and ought to be ventilated by way of judicial review against the administrative decision of the Registrar of the Supreme Court, and not by appeal from the decision of the judge.

3. Leave to issue judicial review was granted on 18 April 1996. Though application for leave was taken out almost at the end of the three month period, no issue was taken on delay.

4. Registrar of the Supreme Court, being the 1st respondent herein, indicated that he did not wish to attend these proceedings. Relevant papers were served on P. Chan J. who also indicated via the Judiciary Administrator that he has no wish to be involved in these proceedings.

5. The decision being judicially reviewed is the Registrar of the Supreme Court's refusal, dated 30 January 1996, to allow inspection and taking copy of the draft order filed on 22 January 1996 in M.P. No.236 of 1996. Though the ex parte originating summons referred to the draft order as being "annexed hereto", there was no dispute that it was not physically attached to the summons. It was only filed at the same time with the ex parte originating summons and the affidavit in support.

6. In considering the refusal by the Registrar of the Supreme Court, it is necessary to determine if the applicant had a right of access, as a member of the general public, to the draft order pursuant to O.63 r.4(1)(a) of the Rules of the Supreme Court. Upon establishment of a right, is there any discretion to refuse relief or impose conditions on the grant of relief in the judicial review?

Meaning of "Originating Process"

7. The applicant was applying for access to the draft order as a member of the general public. No special right or interest was relied on by the applicant in any form. The alleged public right was governed solely by O.63 r.4(1)(a) that provided:

"(1) Any person shall, on payment of the prescribed fee, be entitled during such hours as the Registrar may direct to search for, inspect and obtain a copy of any of the following documents filed in the Registry, namely --

(a) the copy of any writ of summons or other originating ,"

8. There is no statutory definition of "originating process"; nor had any party drawn my attention to any authority or dictionary reference on such term. Mr. Mitchell for the Attorney General did draw my attention to the case of Attorney General v. Sarah-Jane Limbrick & others QBD, draft judgment of Garland, J. dated 20 March 1996, which I shall return to infra.

9. In my view, "originating process" is the process that initiated the proceedings. In the context of documents, it is a reference to such documents as writ of summons, originating summons, notice of motion, or petition. It would be difficult to envisage any other form of documents save those exceptionally designed by the particular statutes to be the stipulated form for initiating those proceedings.

10. "Process" was defined in Jowitt"s Dictionary of English Law, 2nd ed., as:-

"the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed (Britt. 138)."

In the remaining lengthy explanation in the dictionary, emphasis was placed on the purpose of the document in citing the other party to appear. In its reference to the former process in common law actions, it has this to say :-

"Judicial process was that which issued out of the common law courts, either when the original writ was returned or without an original writs being issued at all." (emphasis added)

11. In the New Shorter Oxford English Dictionary, 1993 ed., "process" was defined as:-

"a mandate, summons, or writ by which a person or thing is brought to court for litigation"

12. I am convinced that "originating process" in the context of O.63 r.4(1)(a) is a reference to the documents issued with the intent of bringing another person to court for litigation.

Nature of an application under Section 77E

13. Attorney General v. L, [1990] 1 HKLR 195, concluded that an application under s.77E was civil in nature. However, with respect, no reason was given by the judge for his said ruling. The judge did note, in a different context before he made the said ruling, that "The jurisdiction exercised by the High Court Judge under s.77E is perhaps similar in some ways to that exercised by a magistrate issuing a search warrant: compare the observations of Lord Diplock in In re Racal Communication Ltd. [1981] AC 374 at p.380." Godfrey, J.A., has this to say on the same issue in M.P. No.489 of 1966:-

"I would, for my part, accept the Crown's submission that the proceedings initiated by this originating summons are proceedings in a 'criminal cause or matter'. The evidence the Crown seeks to obtain is sought with a view to the institution by the Crown of proceedings 'the direct outcome of which may be trial of [the person against whom the evidence is sought] and his possible punishment for an alleged offence by a court claiming jurisdiction to do so': see Amand v. Home Secretary [1943] AC 147, per Viscount Simon L.C. at p.156, and that, I would hold, is sufficient to justify the characterisation of the proceedings commenced by the originating summons here as criminal proceedings. It is irrelevant that no criminal proceedings against any person have yet been started: see Carr v. Atkins [1987] I QB 963. (The suggestion, which I made at first instance in Attorney General v. L. [1990] 1 HKLR 195, that proceedings such as those commenced by the originating summons here are civil proceedings, must be rejected.)"

Nevertheless, Godfrey, J.A. went on to find, in respect of the application before P. Chan, J., that "it is not a sufficient answer to the applicant's claim for the Crown to demonstrate that the originating summons here was an originating summons issued in a criminal cause or matter, the present application is indeed merely collateral."

14. Mayo, J.A. agreed with Godfrey, J.A. and further observed that the Attorney General did in fact "issue the originating summons for the letter of request pursuant to Order 5 rule 3 of the Rules of the Supreme Court." The Attorney General took out the present application under an "ex parte originating summons" in almost identical form as that of Form 11 under O.7 r.2. It is to be noted that the form used by the Attorney General was not identical to Form 11 in that there was no reference to any order in the Rules of the Supreme Court in the title. The reference in the title of "In the matter of an application under Order 5 rule 3 or Order 7 rule 2" as would usually be found in a civil cause or matter was absent. This difference is significant in that without such a reference to the particular Order in the title of the "ex parte originating summons", it would not be accurate to describe it as being taken out under any particular rule of the Rules of the Supreme Court. The highest one can put it was that the Attorney General had "borrowed" the format of Form 11 for his application under s.77E. It can be taken that the failure to refer to any order to the rules of Supreme Court was deliberate to indicate the distinctive nature of a s.77E application. I am therefore satisfied that there is no evidence to suggest that the Attorney General had any intention to, nor did he in fact, issue the present application as a civil process under any rule of the Rules of the Supreme Court. As there is no form provided in the Evidence Ordinance for an application under s.77E, nor did the Rules of the Supreme Court provide any form (for originating process or otherwise) for criminal process; it is more likely than not that the Attorney General had simply improvised by borrowing Form 11 as his originating process. By so doing, it would not be right to hold that he should thereby be taken to have instituted a Form 11 civil process, or had taken out any civil process pursuant to O.5 r.3.

15. Applications for an order to issue a letter of request for criminal proceedings pursuant to s.77E are to be distinguished from similar applications in civil proceedings under O.39 rr.1-3. Order 39 deals specifically with similar applications for an order to issue a letter of request for civil proceedings. There has never been any suggestion, including the decision in Attorney General v. L, that the requirements of O.39 r.3 apply to a s.77E application. But, if indeed a s.77E application is civil in nature, O.39 r.3 must necessarily apply. It is therefore beyond doubt that applications for such orders are governed by s.77E for criminal proceedings; and governed by O.39 for civil proceedings. This clearly established the criminal nature, or at least the non-civil nature, of a s.77E application.

16. For my part, applying the decision of Amand, supra, and the reasoning of Godfrey, J.A. in M.P. No.489 of 1996, I am of the view that an application under s.77E is criminal in nature. There could be nothing but possible criminal prosecution in mind that motivated such an application. I am not convinced calling it "collateral" would change the nature of the application for the purpose of the Rules of the Supreme Court. I am unable to see any civil character in such an application. The intended proceedings and the end product, if evidence obtained is supportive of prosecution, are wholly and solely criminal in nature. All references in Part VIIIA of Evidence Ordinance are to criminal proceedings. It is further a requirement that criminal proceedings have been instituted or are likely to be instituted that such an application can be made (see s.77E(1)).

17. For the above reasons, I refused to follow the observation in Attorney General v. L that a s.77E application is civil in nature; nor the obiters of two of the justices in the Court of Appeal in M.P. No.489 of 1996 that such application is collateral to criminal proceedings rather than truly criminal in nature. For my part, I am satisfied and find the present application by the Attorney General under s.77E to be criminal proceedings for the purpose of O.1 r.2(3).

Originating Process for An Application under Section 77E

18. I am of the view that it is possible for originating process to be commenced without any document in hand. In such a case, there would not have been any "originating process", i.e. a document, for the purpose of O.63 r.4(1)(a). Probably, it was to eliminate the undesirability of having no document to commence an application empowered by statute that O.5 r.3 was enacted. However, by virtue of O.1 r.2(3), the Rules of the Supreme Court was stipulated to be applicable to civil proceedings only (save those expressly provided otherwise therein). Thus, generally, in respect of criminal proceedings, unless the empowering statute or law expressly provides otherwise; there is no general statutory stipulation, nor any other form of general legal requirement, that any application to be made to the High Court should be made by way of originating summons.

19. The different meanings "an application" can take on in different context was interestingly demonstrated by Harman, J. in Re Jaymar Management Limited [1990] BCLC 617 at 618. It was observed that "application" can be a reference to the originating summons, an ordinary or interlocutory summons, or even "the beginning of the hearing of this interlocutory summons". Application, when put in a non-specific context, simply means the act of applying to court. It may be in the form of writing, or it may be oral. Unless specifically mandated in some way, it could be by any form appropriate to the circumstances, or acceptable to the court.

20. An application for an order to issue a Letter of Request under s.77E of the Evidence Ordinance, is an application that would not entail the citation of any party to court for litigation. In the premises, it is not surprising that the statute provides that "An application to the High Court for an order under this section may be made ex parte supported by affidavit..." The distinction between the application and the supportive affidavit is clear.

21. I am of the view that on general principle as well as on specific construction of the section, an application for an order to issue a Letter of Request under s.77E of the Evidence Ordinance can be made without any ex parte originating summons.

22. Section 77E did not purport to specify any particular mode of applying. In the premises, the reference to "an application" in the section was put in a wholly non-specific context save that it could be made ex parte. In such circumstances, it would be open to the applicant to apply by whatever mode appropriate to the circumstances and acceptable to the court. I am of the view that there is no need for any ex parte originating summons to be issued for an application for an order to issue a Letter of Request pursuant to s.77E of the Evidence Ordinance. I am further of the view that the application can be made orally in chambers before the judge supported by an affidavit. It can even be made without any attendance before the court, if the judge is prepared to make the order on the supportive affidavit and excuses attendance. The affidavit filed at the time of securing the appointment before the judge is evidence in support of the application, and not the application. However, if the Attorney General believes an initiating document is desirable and wishes to borrow the form of an ex parte originating summons, I would endorse the opinion of the judge in Attorney General v. L, supra, that the suspect need not be named. I am also of the opinion that all the ex parte originating summons needs to provide is that it is an application for an order under s.77E of the Evidence Ordinance for a Letter of Request to be made to an identified tribunal or court. As the application is criminal in nature, rules in the Rules of the Supreme Court requiring details in an originating summons would not apply. Even if they do apply, it is a matter for the judge to decide if the originating summons should provide more information. Order 7 r.7 excludes application of O.7 to an ex parte originating summons save rr.2(1), 3(1) and 5(1) in so as they are applicable. Unless the judge so rules during the hearing, which one would not reasonable expect to happen in view of the lack of an opposing litigant in the application, there is no legal obligation to provide such information at the time of issuance of summons. The need for confidentiality during criminal investigation can be readily appreciated. This will be a matter I will revisit infra.

Applicability of O.63 r.4(1)(a) to a s.77E application

23. It was submitted by the applicant that I am bound by the Court of Appeal decision in M.P. No.489 of 1996 to the extent that it is not open to this court to consider the issue if O.63 r.4(1)(a) applies to an application under s.77E of the Evidence Ordinance; and in particular, to the present application under consideration. It was submitted that such a ruling must have formed part of the reasoning for the ratio in the decision of the Court of Appeal. I am unable to agree with such submission. It is trite law that only the ratio and the necessary reasoning in support thereof will bind a lower court. Obiters expressed that did not form part of the necessary reasoning in reaching the ratio are only persuasive not binding.

24. The ratio of the Court of Appeal in M.P. No.489 of 1996 was that the applicant ought to have sought relief by way of judicial review of the Registrar of the Supreme Court's administrative decision and not by way of an appeal against P. Chan, J.'s subsequent direction to the Registrar of the Supreme Court. Bokhary, J.A. expressly stated that he was "not to be taken as in any way prejudging anything" in the future judicial review. Godfrey, J.A. rested his decision solely on the ground that "the grievance of the applicant here is a grievance which he must ventilate in proceedings by way of judicial review of the act of the Registrar, Supreme Court (who is responsible for the Supreme Court Registry) in denying him the right conferred on the members of the public by O.63 r.4(1)(a)." His observations on the public's right of access to the originating process in a s.77E application must necessarily be obiter. The argument that the Court of Appeal would need to find a good case for judicial review before coming to its decision is fallacious. All the Court of Appeal was required to decide, and which was what was decided by the majority, was that the process of an appeal was wrong and the correct process should be one of judicial review. It is for the judge dealing with the application for leave to issue judicial review, and the one hearing the judicial review if leave be granted, to consider the merits of the application. It can hardly be conceived that the Court of Appeal would venture to prejudge the merits in the future judicial review for the first instance judge. Mayo J.A. was in the minority, and, thus his views do not form the ratio. I have, therefore, no hesitation in concluding that there is no ratio inhibiting my consideration of the issue of whether O.63 r.4(1)(a) can apply to an application under s.77E of the Evidence Ordinance, and to the present application by the Attorney General in M.P. No.236 of 1996.

25. Whether O.63 r.4(1)(a) can apply to an application under s.77E would depend entirely on how the Attorney General chooses to initiate the application. If no originating document is issued, it follows that O.63 r.4(1)(a) can have no application. If an "ex parte originating summons" was issued, the issue would be determined by the nature of the proceedings.

26. As the present application under consideration constituted criminal proceedings, prima facie, the Rules of the Supreme Court would not be applicable by virtue of O.1 r.2(3). However, it was suggested by certain obiters in the Court of Appeal in M.P. No.489 of 1996 that notwithstanding the "collateral" criminal nature of such applications, O.63 r.4(1)(a) could still apply as being general and administrative provisions.

27. Bokhary, J.A. firstly observed that no rules were made under s.77E(5). He further observed that it was possible to provide in the Rules of the Supreme Court that O.63 r.4(1)(a) shall not apply to documents filed in s.77E applications. But it has not been done. He then commented:-

"It would appear therefore: that the entitlement is an unqualified one; and that the Registry has an administrative duty to play its natural role in facilitating the due exercise of such entitlement by any member of the public choosing to exercise it. So if the Registry fails or refuses to carry out that duty, such a member of the public would have a prima facie right to an order of mandamus directed to the Registrar to compel the carrying out of such duty."

I was informed that submissions were made to the Court of Appeal on the effect of O.1 r.2(3). However, the above quoted judgment did not refer to the provision of O.1 r.2(3) that governs the operation of the Rules of the Supreme Court. It is therefore unclear what was the view of Bohkary, J.A. on the interaction between O.1 r.2(3) and O.63 r.4(1)(a). Mr. Thomas submitted that as submissions were made to the Court of Appeal and the said judgment had considered O.63 r.4(1)(a) in the context of a s.77E application; it must be taken that Bohkary, J.A. had impliedly ruled that O.1 r.2(3) did not operate to exclude the operation of O.63 r.4(1)(a) in respect of criminal proceedings. I am not prepared to make such an assumption. I am satisfied that Bohkary, J.A. did not rule on the interaction between O.1 r.2(3) and O.63 r.4(1)(a). He had only approached the issue of applicability of O.63 r.4(1)(a) to a s.77E application solely on the following basis:-

"It was - and still is - possible to provide in the Rules of the Supreme Court that O.63 r.4 shall not apply to documents filed in section 77E applications. But that has not been done yet. And we are left with rule 4 in its present form."

28. Godfrey, J.A. has this to say on the issue:-

"The Court of Appeal in Hong Kong is a court of unlimited civil and criminal jurisdiction: see s.3(2) of the Supreme Court Ordinance, Cap.4. Appeals to this court in its civil jurisdiction are governed by the Rules of the Supreme Court (made under s.54 of the Ordinance). With certain exceptions, the Rules of the Supreme Court do not have effect in relation to any criminal proceedings: see O. 1 r.2(3). One of the specified exceptions is the case of criminal proceedings to which 0.59 applies (0.59 governs appeals to the Court of Appeal in its civil jurisdiction). This seems to cover, for example, the case of an appeal to the Court of Appeal on an application for judicial review relating to a criminal cause or matter: see s.14A of the Supreme Court Ordinance; and the case of an appeal relating to a criminal contempt of court: see s.50(1). I can find no reference in the Supreme Court Ordinance, or in the Rules of the Supreme Court, to any other proceedings in a criminal cause or matter to which 0.59 might apply (although I would accept that it would apply to an order for the issue, or refusing the issue, of a letter of request under s.77E of the Evidence Ordinance). Obviously, 0.59 does not apply to appeals in criminal proceedings generally, since appeals to the Court of Appeal in such criminal proceedings are governed by the Criminal Appeals Rules, made under s.9 of the Criminal Procedure Ordinance, Cap.221, and not by the Rules of the Supreme Court. But is the application presently before us made in a criminal cause or matter, or is it a collateral application, as the applicant submits? The application purports to be an application brought before the court in its civil jurisdiction. And the rights conferred on the public generally by Order 63 r.4(1)(a) are civil rights, applicable on the face of it to all originating summonses, no special exception being made for originating summonses issued in a criminal cause or matter. I am therefore of the opinion that it is not a sufficient answer to the applicant's claim for the Crown to demonstrate that the originating summons here was an originating summons issued in a criminal cause or matter; the present application is indeed merely collateral."

29. Again, I am unable to find any discussion in the above quoted judgment indicative of any consideration by Godfrey J.A. on the issue of interaction between O.1 r.2(3) and O.63 r.4(1)(a). The obiters underlined in the above quoted passage were arrived at without any consideration of the possible restrictions that O.1 r.2(3) may have over the operation of O.63 r.4(1)(a).

30. Mayo, J.A., who was in the minority, though appearing to agree with Godfrey, J.A. that a s.77E application is collateral to criminal proceedings; did not address the issue of the applicability of O.63 r.4(1)(a). He merely ruled the Court of Appeal did have jurisdiction to entertain the appeal. The ratio of his dissenting judgment was that P. Chan J. did not have any jurisdiction to make the order to restrict access under O.63 r.4(1)(a). There was, therefore, again no consideration of the possible restriction O.1 r.2(3) may have on O.63 r.4(1)(a).

31. After going through the above dissection of the judgments of the Court of Appeal in M.P. 489 of 1996, I am satisfied that there is no finding, be it ratio or obiter, in that judgment on the issue of interaction between O.1 r.2(3) and O.63 r.4(1)(a). I therefore reject the submission of Mr Thomas and hold that this court is at liberty to rule on this issue, though the obiters of the Court of Appeal that had been considered supra are to be given due weight and respect.

32. I am of the view that notwithstanding the apparent administrative and general character of O.63 r.4(1)(a), it was the intention of the Rules Committee as expressed clearly in O.1 r.2(3) that the Rules of the Supreme Court, save as expressly excepted in that provision, are to be applicable to civil proceedings only. It is therefore not necessary for rules to be made to restrict access to originating process in criminal proceedings. Such an act would be superfluous. In the premises, it should not be surprising to find no such rules being made notwithstanding the power conferred by s.77E(5).

33. I am further of the view that the reference in s.77E(5) to s.54 of Cap.4 (i.e. the section that empowers the Rules Committee to make rules) is not indicative of any legislative intent that applications under s.77E are civil, or only collateral to criminal proceedings in nature. There is no justification for the view that the Rules Committee under s.54 of Cap.4 was designed to make rules for civil proceedings only. The clearest foundation for a contrary view can be found in the first of the Orders. Order 1 r.2(3) expressly provides that some of the rules to be found in the Rules of the Supreme Court are to be applicable to criminal proceedings. It is beyond doubt that the Rules Committee does have jurisdiction to make rules for criminal proceedings in the Supreme Court; and had done so in O.1 r.2(3). But it had deliberately not included in O.1 r.2(3) the provisions of O.63.

34. The administrative and general nature of O.63 could not per se liberate that provision from the clear express restriction of O.1 r.2(3). Had it be the intention of the Rules Committee that documents in criminal process are to be governed in the same manner as civil process under O.63, one should not fail to find it clearly expressed in O.1 r.2(3) in similar manner as the other exceptions. No convincing argument had been advanced before me to support the view that the administrative and general nature of O.63 r.4(1)(a) alone could negate the clear restriction imposed by O.1 r.2(3) on all of the rules in the Rules of the Supreme Court save as expressly excepted therein or elsewhere. I find such a suggested implied repeal of the clear legislative intent of O.1 r.2(3) without support of authorities or reason. Mere reference to unreasoned obiters, albeit from the Court of Appeal, is insufficient to persuade me otherwise. The non-application of O.63 r.4(1)(a) to criminal proceedings is equally consistent with the administrative and general nature of that Order. Admittedly there is nothing in O.63 r.4(1)(a) suggesting that it should be applicable to civil proceedings only. However, equally, there is also nothing in that Order that is suggestive of its applicability to criminal proceedings notwithstanding O.1 r.2(3). Access to documents in criminal proceedings by the public has always been considered more restrictive than civil proceedings; and the need for confidentiality during criminal investigation has likewise been recognised. Such special considerations given to criminal proceedings will be considered in greater detail infra. In the premises, a legislative intent not to exclude O.63 r.4(1)(a) from the restrictions of O.1 r.2(3) can be readily understood.

35. I am of the view that O.1 r.2(3) applies to O.63 r.4(1)(a) and thus there is no public right of access to documents in criminal proceedings without permission of the court. It would probably not be difficult to envisage the readiness of the Registrar of the Supreme Court to allow public access to non-prejudicial and non-sensitive documents in criminal proceedings provided the administration of justice would not thereby be frustrated. However, there being no specific criminal administrative rules made in such respect, it is entirely a matter for the Registrar of the Supreme Court, as the administrator and custodian of such official documents in the exercise of his duties and discretion to decide.

36. No argument has been advanced that the Registrar's refusal herein was an unreasonable exercise of his discretion, the only claim made being one of an absolute right of access. In the premises, I hold that the Registrar was entitled to refuse access to the draft order, the Applicant having no such right pursuant to O.63 r.4(1)(a).

Ex parte originating summons with draft order "annexed"

37. I have already held that by virtue of O.1 r.2(3) and the criminal nature of an application under s.77E, O.63 r.4(1)(a) had no application to the "ex parte originating summons" filed in M.P. No.236 of 1996. The applicant had, therefore, no public right of access to the said "ex parte originating summons" as alleged. In the premises, it is not necessary to decide if the draft order had been "incorporated" by reference as part of the "ex parte originating summons" to subject it to the alleged public right of access. However, as substantial submissions had been made on the issue, it would only be appropriate for me to express a view on the issue.

38. The applicant sought access not only to the "ex parte originating summons", but also to the draft order that was referred to in the body of the summons. The draft order was filed at the same time with the summons as a separate document not physically annexed to it, notwithstanding the statement in the summons that the draft order was "annexed" thereto. The applicant relied on the principle of "incorporation by reference" to render the draft order part of the summons. On this issue, the applicant relied on an obiter in the Court of Appeal judgment.

39. Bokhary, J.A. observed that "the annexation joined the annexure and the thing to which it was annexed together so as to form a single document." Godfrey and Mayo, JJ.A. did not make any observation on this issue. I do not consider myself bound in any way by the obiter of Bokhary, J.A., not only because it was not necessary for the issue to be decided by the Court of Appeal; more importantly, the Court of Appeal was not aware of the truth that the draft order was never physically attached to the "ex parte originating summons". I am certain revelation of such fact would substantially affect Bokhary, J.A. in his observation over the issue. I am persuaded his reference to "annexation" is a reference to physical annexation. The logic is simple.

40. There is no authority at all to support a proposition that a mere reference to annexation, without actual physical annexation, is sufficient to make two separate court documents a single document. The principle that applies to contractual documents cannot be applied mutatis mutandis to court documents such as originating process or pleadings. It was necessary for specific provisions to be enacted in O.18 r.12(2) to incorporate particulars exceeding 3 folios that are set out in a separate document but are referred to in the pleading to form part of the pleading. The pleading still has to state whether the separate document has already been served, and, if so, when, or is to be served with the pleading. No such express rule would be necessary if a doctrine of "incorporation by reference" can operate as a matter of right to pleadings.

41. If mere reference without physical attachment is sufficient to render a separately filed document part of an originating process or pleading, the floodgate would be opened to abuse. The recipient of such originating process or pleading might not be able to know the contents of the other document referred to in the document served but not attached nor served therewith. If there can ever be such a doctrine of "incorporation by reference", where should the court draw the line on such indulgence? Would contemporaneous service and/or filing of the separate document suffice? Should it extend to subsequently served and/or filed documents? Would it apply to the more outrageous situation of service and/or filing of the referred document only upon complaint being made? One thing is, however, clear beyond doubt - that if such a principle can ever apply to originating process or pleadings, it cannot be an absolute principle in the sense that it would automatically apply as of right whenever a reference is found. For the avoidance of abuse, it must be subject to the discretion of the court in order that justice be done. In the premises, I am not convinced the alleged principle can be extended to originating process or pleadings. It would, and should be, a matter of indulgence from the court that the absence of physical annexation of the referred document should be excused. It should be that such discretion ought only be exercised on reasonable grounds being shown, and not as a matter of right.

42. For reasons given supra, I hold that mere reference in the body of the "ex parte originating summons" to "in the form set out in the draft order annexed hereto" per se without any physical annexation of the draft order did not, without more, render the draft order that was filed at the same time with the summons as a separate document part of the summons. There is no automatic right to have such physically separate referred document deemed part of the originating process or pleading that contained the reference. If ever appropriate, it would be for the court upon application to grant such indulgence in appropriate cases upon reasonable grounds being shown.

Mandamus as a discretionary relief

43. The Attorney General urged this court to postpone access to the draft order (in the event the applicant's public right being established) to prevent impairment to the pending criminal investigation. It is the applicant's submission that there is no room for exercise of such a discretion; or alternatively, it will be wrong for the court so to do.

44. It is the submission of the applicant that once a wrong is established, it is the role of the court to ensure proper observance of the law. Thus, in the exercise of its discretion, the court should only consider which remedy to apply and not whether to apply a remedy. In reliance, I was referred to the statement of Lord Scarman in R. v. Brent London Borough Council, ex parte Shah [1983] 2 AC 309 at 350H, that "The function of the Court is to ensure due observance of the law; that is all." Mr Thomas also relied on the often cited exclamation of Lord Brightman of how regrettable it would be if a successful litigant who has established he has been legally wrong has to be sent away from a Court of Justice empty handed except for an award for the legal expenses (see Chief Constable of North Wales v. Evans [1982] 1 WLR 1155 at 1172).

45. Notwithstanding the above authoritative observations, I have no hesitation in holding that mandamus is a discretionary relief and the court has unlimited jurisdiction to exercise such discretion in any way appropriate to do justice. Words such as "may" and "would be just and convenient" are readily found in s.21K of Cap.4 and Order 53. Such prerogative remedy has been described as "pre-eminently a discretionary remedy" (see "Should Public Law Remedies Be Discretionary" [1991] P.L., 64 at 66 by Sir Thomas Bingham, M.R.). It is trite law that notwithstanding an infringement of a public right, prerogative remedy may be withheld if public interest or good administration demands it.

46. Is mandamus subject to any different inhibition than other prerogative remedy? The applicant submitted that the discretion of the court in the remedy of mandamus is subject to greater restriction than other prerogative relief. I was referred to the observation of Lord Widgery, C.J. in R. v. London Borough of Hounslow, ex parte Pizzey [1977] 1 All ER 305 at 309, that:-

"Mandamus has often been described as being less discretionary than the other forms of prerogative order. In other words a man who says that he has been denied his rights and asks for Mandamus is very much closer to making a claim of right than is the average applicant for certiorari"

I accept to that limited extent mandamus stands in a slightly different position than other prerogative relief. It would probably be rare, in the run of the mill situations, for a court to deny a relief when a public right exists and a wrong has been established. However, it is not an absolute right. There will be cases that notwithstanding the infringement of a public right, the good of the society and the greater public interest may override the individual interest. There will be individual rights or human rights, however strong, that must give way to the demands of society in times of need. The need for national security, the need for comity of nations are well-established examples. It is always a balancing exercise for the court to consider the rivalling demands of the individual against the society. The echo of the wisdom of Sir John Donaldson M.R. in R. v. Monopolies Commission, ex parte Argyll Plc. [1986] 1 WLR 763, at 774D-G, should never fade from our hall of justice:-

"We are sitting as a public law court concerned to review an administrative decision, albeit one which has to be reached by the application of judicial or quasi-judicial principles. We have to approach our duties with a proper awareness of the needs of public administration. I cannot catalogue them all .............

Good public administration is concerned with substance rather than form ...........

Good public administration is concerned with speed of decision ...........

Good public administration requires a proper consideration of the public interest.

Good public administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical persons. But in judging the relevance of an interest, however legitimate, regard has to be had to the purpose of the administrative process concerned.

Good public administration requires decisiveness and finality."

47. It may not be that all of the above are applicable to the present case, they should be firmly borne in mind in this day and age when the issue of human rights are constantly before these courts.

48. Lord Donaldson further observed in R. v. Panel on Take-overs and Mergers, ex parte Datafin Plc. [1987] QB 815, at 840B, that:-

"the court has an ultimate discretion notwithstanding that it holds and declares the decision to have been made ultra vires: see, for example, Reg. v. Monopolies and Mergers Commission, Ex parte Argyll Group Plc. [1986] 1 W.L.R. 763. That case also illustrates the awareness of the court of the special needs of the financial markets. It further illustrates an awareness that such decisions affect a very wide public which will not be parties to the dispute and that their interests have to be taken into account as much as those of the immediate disputants."

49. Though both cases concerned with quite different factual matrix, I found the principles and logic enunciated therein of universal application. The remedy of mandamus does not enjoy any special privileges as submitted by the applicant, though an un-conditional right of the individual would be a matter to which the court must give due consideration and weight.

Exercise of the Discretion

50. It is not necessary for me to exercise any discretion in view of the ruling on the non-applicability of O.63 r.4(1)(a) to a s.77E application. However, as lengthy written submissions were submitted (after the hearing with consent of the parties), I shall express my views on the issue.

51. It has been conceded by the applicant that he is not relying on any special or personal interest in seeking access to the said documents. He merely stood in the same position as a member of public exercising a public right. In the premises, it has been conceded by Mr Thomas that in a balancing exercise of rivalling interest, his client has nothing to outweigh the claimed public interest of preserving confidentiality during criminal investigation to ensure criminals are properly brought to justice. There is no need to refer to authorities on the importance of such public interest.

52. However, the applicant relies on the alleged principle that mandamus stood in a different class and that a public right, once infringed, must be capable of being redressed by such relief. For reasons given supra, I hold that notwithstanding the said special features, a balancing exercise can, and should, be carried out in the interest of justice. Though the applicant has satisfied the court of his sufficiency of interest and defeated the Attorney General's submission that the application should be dismissed for an absence of sufficient interest, it does not follow he should likewise succeed on this issue of discretion. It may be that the applicant, as a solicitor, was acting for a client in seeking such information. However, he has chosen not to disclose such information to the court, nor seek to rely on such special interest. There is simply nothing, apart from a right to exercise an un-conditional statutory right, that the applicant can place on the scale. Against that, the Attorney General is relying on the obvious public interest of a danger of compromising the administration of criminal justice. The un-conditional statutory right of access is based on the open justice policy, and probably also on the right to freedom of information. However, an un-conditional statutory right of access is not the same as an absolute right of access. There is nothing in O.63 r.4(1)(a), nor is there any authority or legal principle cited to me, to convince me that the said un-conditional right of access is an absolute one. Unless the right is absolute, the court's discretion in granting prerogative relief, that is founded on the responsibility of the court to administer justice and to uphold fundamental principles of justice and public good, cannot be ousted. I hold that the un-conditional right of access under O.63 r.4(1)(a) is not absolute. The duty of the court to ensure procedural rules not being misused to defeat proper administration of justice and public good must be readily enforced. In applying the above fundamental principles of justice, I have no hesitation in holding that the un-conditional right of access, without the support of any personal or special interest, would dwarf into relative insignificance as against the public need to bring criminals to justice. Cases on discovery of documents in criminal investigations or proceedings by civil litigants had long well established where the priority should be placed. Though in a different context, I found the principles and logic expounded in such cases of equal applicability to the issue at hand. In Conway v. Rimmer [1968] AC 910, Lord Reid observed at p.954 that the police are entitled to special considerations and crown privilege, and that it is essential that they should have it. He said:-

"The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities."

53. I may also add that many of today's criminals are syndicated, highly sophisticated and wealthy who have at their disposal almost unlimited resources of talents of all kinds, including legal talents. I, of course, accept the applicant as a mere member of the public having no special interest of whatsoever nature in making the application. Notwithstanding the applicant's said position, the pre-mature disclosure of confidential information during police investigation, even to a wholly innocent citizen, cannot be appropriate. In the premises, if it becomes necessary for me to exercise the discretion herein, I would undoubtedly have exercised it against the applicant and refused relief to him notwithstanding he has an un-conditional right of access. I would have found a refusal of access reasonable in the circumstances.

54. If I be wrong on that, I would have granted a mandamus only after the conclusion of police investigation and a decision on prosecution of the suspect has been made. I am satisfied that I have unrestricted discretion in postponing the effective date of a mandamus. No authority has been cited to contradict such a view. I wholly reject the suggestion that such an order is unworkable in that it would entail "secret communication" between the Attorney General and the court relating to the operative date of the mandamus. Such a suggestion is wholly unfounded. In granting the mandamus, all the court needs to make clear is that it should take effect upon the institution of prosecution against the suspect or conclusion of criminal investigation if no prosecution resulted; and requires the Attorney General to give an undertaking to the court that both the court and the applicant will be informed forthwith upon the occurrence of either of those events. The penalty of breach of such undertaking needs no reminder. There can be no risk of any reasonable and right-minded member of the public having a misguided perception of the situation. A suggestion that the court would be seen in these circumstances as acting in secret with a litigant is as ludicrous as suggesting that the court will favour the government because it is the ultimate source of funds for emoluments of all judges. I am unable to see how such an order can dent open justice or compromise judicial independence. Under such an order, justice will be seen to be done as well as being done.

55. I would also observe the applicant's submission that the court ought not attempt to remedy a mistake of the Attorney General is wholly unnecessary. It is stating the obvious. The issue is public interest, not saving the Attorney General from a mistake. It is wholly irrelevant whether the situation before the court upon which the court has to exercise a discretion was brought about by a mistake of the Attorney General or otherwise. The sole issue before the court is the balance of a claim of public interest against a claim of a citizen's public right under a subsidiary legislation. Such a fundamental principle should never require revisiting.

Conclusion

56. For reasons given supra, the application is dismissed. Costs ought to follow the event save in exceptional circumstances. I make an order nisi for costs to the Attorney General against the applicant.