GREGORY MICHAEL HALL v. COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

Headnote

                The expression "corrupt practices" in Section 12 of the ICAC Ordinance Cap. 204 is not confined to the offences mentioned in Section 10(1) of that ordinance.

                Where the Commissioner has obtained evidence of corrupt practices in the course of his investigations, he is entitled to pass that evidence to those in a position to take appropriate action.

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JUDGMENT

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Cons, V.-P.:

1. Mr. Gregory Michael Hall is a jockey licensed to ride in events organised by the Royal Hong Kong Jockey Club. He lives at No.1 Worldwide Gardens, Shatin. At 16 minutes past 3 in the morning of Thursday 20th February this year two investigating officers employed by the Independent Commission Against Corruption arrived at his home. They were armed with a search warrant issued by the Commissioner of I.C.A.C. under Section 17 of the Prevention of Bribery Ordinance Cap. 201. They took possession of various documents found in Mr. Hall's flat including certain bank records. Later at the I.C.A.C. office in Murray Road Carpark Building one of the officers put a great number of questions to Mr. Hall. The interview indeed lasted the greater part of that day. There were however various breaks, during one of which Mr. Hall's safe deposit box at the Hongkong & Shanghai Banking Corporation was opened and cash taken therefrom. By some stage in the afternoon the investigating officer concluded that the evidence was by then sufficiently strong against Mr. Hall to warrant a general caution, which he administered. The interview finally closed sometime around 4 o'clock. A written record of the questions and answers had been kept throughout by the other investigating officer.

2. In the end the Commissioner decided not to institute criminal proceedings against Mr. Hall. He did however forward a file of evidence to the Stewards of the Royal Hong Kong Jockey Club. That file "provided details of the I.C.A.C. investigation concerning Mr. Hall and also described certain malpractices connected with horse racing". I quote from an affidavit of the Commissioner filed in the proceedings below. The file itself has at no time been produced, but it is common ground that it contained, inter alia, copies of the bank records and the record of the interview with Mr. Hall to which I have already referred.

3. On the 2nd April the Stewards of the Club caused Mr. Hall to be informed that five charges would be preferred against him for infringements of the Rules of Racing, these being rules which he was bound to observe as a condition of being granted his riding licence. A synopsis of the evidence in support, subsequently supplied to Mr. Hall's solicitors, indicated that both investigating officers were expected to give evidence at the Stewards inquiry and to produce the bank records and the record of their interview with Mr. Hall. With a view to preventing this, Mr. Hall applied for and obtained leave for judicial review, seeking by his Statement in support the following reliefs:-

4. The review was conducted by Power J., who in a reserved judgment granted relief generally in the terms requested, save that the first two declarations were qualified by the words "except as to information relevant to proof of corrupt behaviour," the third by the words "except in respect of information to be used to prove corrupt behaviour" and the final order by the words "except in the case of information to be used by the Royal Hong Kong Jockey Club to prove corrupt behaviour".

5. "Corrupt behaviour" is not defined in the formal order, but is confined by the judgment to "acts which constitute an offence under one of the relevant ordinances", those ordinances being the Independent Commission Against Corruption Ordinance Cap. 204, the Prevention of Bribery Ordinance Cap. 201 and the Corrupt and Illegal Practices Ordinance Cap. 288.

6. The Attorney-General, who has appeared in this Court for the Commissioner, observes that the final part of the relief granted is in effect an injunction against the Crown, a relief precluded by Section 16 of the Crown Proceedings Ordinance Cap. 300. Mr. Litton who has appeared throughout for Mr. Hall, has not argued against that observation, but the crux of the appeal is the correctness of the three declarations.

7. I would for myself, as does Mr. Attorney, start from the basic premise that where an individual, whether holding public office or otherwise, has come into possession of particular information, then, contractual relationship apart, he is entitled to pass on that information to any third party as he thinks fit, unless this is prohibited by statute or by some specific principle of law. If authority be needed for this proposition it may be found in the comment of Sir Robert Megarry, vice-Chancellor ⁽¹⁾, that -

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England, - (and I would interpolate Hong Kong) - it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden."

8. The judge below took the view that one specific principle of law which precluded the passing on of information in the present circumstances was the doctrine of what is commonly called now "public immunity interest". With every respect that cannot be so. Public immunity interest is a concept applicable in litigation inter partes; it has no place in the judicial review of administrative decision. Mr. Litton indeed does not seek to uphold the decision in this respect. He feels that his submission below was perhaps misunderstood. He puts forward public interest in the confidentiality of the Commission's investigations only as one factor to be taken into account in the construction of the relevant legislation.

9. Mr. Litton's basic approach is the antithesis of that of Mr. Attorney. It is that the Commissioner, being a creature of statute, can do no more than is found to be authorised on a proper construction of the statutory provisions. Anything further is ultra vires and unlawful. Alternatively, or perhaps additionally, he and his officers are restrained in the present instance by Section 30(1) of the Prevention of Bribery Ordinance which provides as follows:-

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30.(1)    Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance the fact that he is subject to such an investigation or any details of such investigation, or discloses to any other person either the identity of any person, who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year."

I should also set out Section 12 of the I.C.A.C. Ordinance which tabulates the duties of the Commissioner -

10. I may also mention here that Mr. Litton relies in addition on Section 20 of the Prevention of Bribery Ordinance as indicating that in its absence the tendering of a defendant's own statement in criminal proceedings against him would be a breach of Section 30, For my part I do not read it that way. The object of the section is to make clear that, in proceedings under that ordinance, a statement made under the compulsion of the Commissioner's Section 14(1)(a) or (b) powers, is not for that reason alone inadmissible.

11. Whichever be the correct basic approach it is essential to turn first to the words "corrupt practices", which appear in particular in paragraph (a) of Section 12 and again in paragraphs (c), (d), (e) and (f). From Mr. Litton's point of view these words demarcate the ultimate limit of the Commissioner's powers - "the discipline of statute" was, I think, the way he put it. For Mr. Attorney they set the extent to which the Commissioner might rely on lawful authority to escape the provisions of Section 30(1), for it is common ground that by implication the Commissioner has authority to do whatever is necessarily incident to the exercise of his duties.

12. Mr. Attorney suggests that "corrupt practices" are those which involve or promote corruption, which in this context would mean -

13. He concedes however that his definition is not as wide as it should be.

14. Counsel for the Commissioner below apparently declined to be drawn into suggesting any definition, although he contended "that the words must be given a very wide meaning and be held to encompass activities which are not criminal". The judge below rejected that contention -

Mr. Litton suggests a definition slightly wider than that of the learned Judge-

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Practices which, if engaged in by an individual knowingly, would amount to an offence under one of the ordinances."

15. For myself I see no reason to restrict "corrupt practices" in any way by reference to offences in particular ordinances. The express reference to those offences in paragraph (b) of Section 12 militates directly against any such construction, which would also, if the judge be correct, render the second half of paragraph (a) otiose or inconsistent. "Corrupt practices" under paragraph (a) would in any event be investigated under paragraph (b), with no discretion to the Commissioner to deal only with such as he considered practicable.

16. I accept that if my conclusion be correct the remit given to the Commissioner is far wider than accorded to those traditionally responsible for the enforcement of law and order. But that is not surprising, for in 1974, when the enabling legislation was introduced, those traditionally responsible had failed woefully to make any impact upon what was then considered to have become a dramatically serious situation. Nor do I foresee that this conclusion would let loose a flood of revelation to professional bodies or others of the peccadilloes of their members or staff, or even of marital infidelity to spouses hoping for divorce. The Commissioner is concerned only with practices which are corrupt. I do not think it necessary to attempt a definition sufficiently broad to encompass all the various forms that that insidious disease may take. It is not the practices themselves which are made criminal by the legislation. But I am confident that all will exhibit in some way or other a tendency to undermine integrity. To my mind that is the common denominator of all forms of corruption. I do not think it will prove difficult in any particular circumstance to decide whether the practice in question is or is not corrupt.

17. In the present instance the bank records found in Mr. Hall's flat indicate the receipt of moneys far in excess of the fees he could be expected to have earned from his riding activities. His answers to the investigating officers point at least to the sale by himself of privileged information, to the existence of persons who by deceit as to the true ownership of horses or on occasion by physical violence towards riders, were attempting to influence the outcome of particular races and to the suggestion of bribery of a senior official of the Club. In my judgment these matters would, if established, be properly said by any standard to be corrupt practices.

18. It is obvious that for practical reasons the I.C.A.C. should carry out its investigations with great concern for confidentiality. That is reflected in statute. Hunter J. observed in Khan v. O'Dea and Another⁽²⁾, after referring to particular sections of the Prevention of Bribery Ordinance -

19. It is equally obvious that the legislature intended that there should be exceptions. Otherwise Section 30 would not have included the words "without lawful authority or reasonable excuse".

20. The only express authority is to be found in Section 12(c) of the I.C.A.C. Ordinance, by which the Commissioner is required to report to the Governor on particular conduct of Crown servants. But there is a clear implication that he may release other details to the Attorney- General, for it is only with the Attorney's consent that prosecutions for the principal offences under the Prevention of Bribery Ordinance may be instituted: Section 31(1). It seems to me equally clear that where the Commissioner has evidence of a corrupt practice that does not fall within the ambit of those offences, but is within the jurisdiction of some body other than the Court, or where in the opinion of the Commissioner the practice could for some reason be better dealt with by that body than the Court, then it is the intention of the legislature that the Commissioner should have authority to refer that evidence to the particular body to take such action as it can with a view to reducing or eliminating corruption generally within Hong Kong. In the present instance that body is composed by the Stewards of the Club and in my judgment the learned judge below was in error to grant the relief that he did.

21. Having reached my conclusion in the manner just outlined I do not find it necessary to express a concluded opinion as to which of the two approaches of counsel is the more correct. I would only observe that if Mr. Attorney be right the relief which Mr. Hall was seeking could only have been based upon some private right, which is not amenable to the procedure of judicial review. It may also then have been necessary to consider the application in the present circumstances of the decision of this Court in Khan v. The Attorney-General ⁽³⁾. But these questions were apparently not argued below.

22. However it is necessary to consider a further point raised by amendment to Respondent's notice. Again this was not argued below, but no objection has been taken by Mr. Attorney or by Mr. Ching who appears for the Stewards of the Club, they having been given leave to intervene in the proceedings below. It is that-

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The learned judge should in any event have held that the supply to the Stewards of RHKJC by the Commissioner and his officers of documents or documentary evidence obtained in consequence of execution of search warrant issued under Sec. 17 of Cap 201 was unlawful."

23. In the A.G. v. Ocean Timber Transportation Ltd.⁽⁴⁾ this court held that the Royal Hong Kong Police, having seized documents under Section 50 of the Police Force Ordinance, were not entitled to forward copies thereof to the Royal Fiji Police Force with a view to a possible prosecution in that territory. That case however by itself does not assist Mr. Hall, for it accepts that documents seized may be shown or copied to others if that is necessary to further the particular purpose for which the documents were seized. In the present circumstances, for the reasons I have already indicated, that would include a reference to the Stewards of the Club and at one stage Mr. Litton accepted that this point would stand or fall with the main issue in the appeal. However at the very last moment, after Mr. Attorney had concluded his submission in reply, Mr. Litton drew our attention to the words of Section 10C(1)(c) of the ICAC Ordinance which provides the actual authority to seize, Section 17 of the Prevention of Bribery Ordinance providing merely for the issue of a warrant and the power to detain persons on the premises during the course of the search -

Section 10 refers to what have already been called the relevant offences, together with blackmail committed by or through the misuse of office by a Crown servant and the offences set out in Subsection 5. The section does not, in any way, refer to corrupt practices.

24. I find myself in some difficulty here for the question has been so lightly argued. It would seem to follow that once the Commissioner had completed his investigation with regard to all the possibilities within Section 10 and decided not to prosecute, Mr. Hall would have a right to the return of his bank records. In one sense it may therefore be said that when the Commissioner passed copies of the records to the Stewards of the Club he was acting unlawfully. But I have grave doubts whether his conduct in doing so was a violation of public law sufficient to bring it within the ambit of judicial review. A private action for their return would seem more appropriate, or perhaps a challenge to their introduction in the Stewards inquiry. For my part I would not therefore hold as requested by the amendment to the Respothdent's notice.

25. For the reasons I have attempted to express earlier I would suggest that the appeals generally be allowed and the reliefs granted below be set aside. The Notice in Appeal No. 111 asks for positive declarations to the contrary. In my view these are not necessary.

(1)    Malone v. The Metropolitan Police Commissioner [1979] 1 Ch. 344 at p.357
(2)    8th February 1985 unreported Action 5850 of 82
(3)    unreported 18th January 1983 Civil Appeal 155 of 1982
(4)    [1979] H.K.L.R. 298

Fuad, J.A.:

26. I agree with the conclusions reached by my Lord the Vice-President in his judgment, but in view of the importance of the issues raised by these appeals, I wish to add a few observations of my own.

27. The principal plank upon which Mr. Litton's submissions on behalf of Mr. Hall were based was the proposition, which found favour with the judge, that the expression "corrupt practices" when used in s.12 of the Independent Commission Against Corruption Ordinance (Cap. 204) embraces only the offences mentioned in subsection (1) of s.10 of that Ordinance, "echoed" as he put it, in paragraph (b) of s.12.

28. As a matter of construction, I am unable to accept that proposition. The expression "corrupt practices" occurs in paragraphs (a), (c), (d), (e) and (f) of s.12 of Cap. 204. It is only in paragraph (b) that there is a reference to "alleged or suspected offences", marking one of the essential distinctions between that paragraph and the others. The duties to investigate complaints alleging "corrupt practices" and the conduct of Crown servants "connected with or conducive to corrupt practices", imposed respectively by paragraphs (a) and (c), are additional to the duty to investigate "alleged or suspected offences ..." in paragraph (b), although they may often overlap.

29. Moreover, s.10 of Cap. 204 is, it seems to me, another clear indication that the legislature had the distinction well in mind, for the powers of arrest given by that section are, as one would expect, exercisable only on reasonable suspicion of the commission of specified offences.

30. Having regard to the purposes for which Cap. 204 was enacted, in my view the words "corrupt practices" were clearly intended to include conduct which can fairly be regarded as a corrupt practice (giving those words their ordinary meaning) whether or not that conduct amounts to an offence. If the legislature had intended the limitation contended for, it would surely have said so.

31. I doubt if it is possible to define what the expression "corrupt practices" means without having regard to the field of activity in connection with which the question whether or not certain conduct amounts to a corrupt practice arises. This is not to say, of course, that the expression as used in Cap. 204 necessarily coincides with conduct classified as a corrupt practice by the Rules of Racing promulgated by the Stewards of the Jockey Club.

32. However, in my judgment, it is not necessary to determine the precise parameters of the expression to resolve the issues arising on these appeals. The learned judge was of the opinion that "the term [could] .... only be defined with proper certainty by saying that it refers to practices which involve the commission of offences under the relevant Ordinances", and Mr. Litton suggested, in seeking to uphold this view, that anomalies would arise if a wider meaning were given to the expression. The concern implicit in the judge's conclusion would, I think, only be justified if it were sought to make someone criminally liable for being involved in "corrupt practices which is not a relevant consideration here.

33. I have no doubt that if what Mr. Hall said during the interview was correctly recorded, and was the truth (and these are not matters for us to decide) his statement reveals the existence, (or the likelihood) in the context of racing, of corrupt practices in varying degrees of seriousness. Human nature being what it is, one has only to ask how it would be possible to safeguard the integrity of racing if jockeys were allowed to supply information to racegoers for money, or to bet on races, directly or by proxy, or under arrangements where they stood to, win but could not lose. There is also the sinister reference to betting syndicates; the revelation by Mr. Hall that he was threatened by strong-arm men and made to apologise for winning on one horse; and that the owners of another horse made their displeasure known to him when it won a particular race. The honesty and faithfulness of jockeys must be gravely compromised by activities of this kind. The thousands of men and women who throng the race courses each week would have no difficulty in recognising these practices as corrupt, or as being conducive to corruption, and they would plainly be right.

34. It is the Commissioner's conduct which is challenged. Once he handed over the information and material to the Jockey Club, what the Club chose to do with it in relation to Mr. Hall or to anyone else is not in point. The fact that the Stewards have disciplinary powers over jockeys and other does not affect the issues. There is no suggestion that the Commissioner acted outside the scope of the duties set out in s.12 of Cap. 204 when he started his investigations. He will not know when he embarks upon an investigation what the evidence might reveal. He may uncover evidence that indicates that an offence has been committed under one of the relevant Ordinances. He may find evidence of actual corrupt practices falling short of criminal conduct. But he may discover activities which show that, unless checked, corrupt practices might develop. If the Commissioner has been acting lawfully throughout his investigations, it would be surprising if he were not permitted to pass on the evidence he unearths to the body best equipped to prevent or eliminate corrupt practices whether by disciplinary action or otherwise.

35. Here the Jockey Club had sought the co-operation of the ICAC to eliminate corrupt practices in racing and so, in my judgment, the Court should lean against a construction of the relevant statutory provisions that would require the Commissioner to say to the Jockey Club: "I have done what you asked me to do and I recognise that it is my statutory duty to assist you. I have information that shows that corrupt practices are or may be present (or are in danger of developing), but I am not allowed to pass it on to you." Unless, the statutory language or binding authority compels it, such a bizzare result should be avoided. With all respect, this imaginary response reveals the stark reality of the stand taken in these proceedings on behalf of Mr. Hall.

36. In my judgment the true construction of s.12 of Cap. 204 does not lead to such a result. For the Commissioner to be able effectively to discharge his duties and to further the objects of the Ordinance which governs him, he must have implied powers to give information to the Jockey Club that will help them to eliminate corrupt practices or to reduce the likelihood of corrupt practices occurring. Indeed, I would hold that it is his duty so to do.

37. Apart from the import of the language employed in s.12 of Cap. 204, no authority was cited to us (now that it has been conceded that considerations of "public interest immunity" are irrelevant to the issues before the Court) that demands that there be specific statutory authority before there can be disclosure of information lawfully obtained. The reverse is the position in my view, and there would have to be express provision on the lines, for example, of s.4 of the Inland Revenue Ordinance (Cap. 112) or s.22 of the Census and Statistics Ordinance (Cap. 316) to prevent disclosure by the Commissioner, and thus to avail Mr. Hall.

38. I am not persuaded that s.30 of the Prevention of Corruption Ordinance (Cap. 201) stands in the Commissioner's way. If he has the power and the duty (as I think he has) to pass on the evidence to the Jockey Club under Cap. 204, this clearly arms him with "lawful authority", even if s.30 of Cap. 201, on its proper interpretation, is relevant, and if it is capable of application once an investigation is complete.

39. I have reached the conclusion that the Commissioner acted lawfully and, I would add, responsibly and sensibly. I would allow the appeals.

Clough, J.A.:

40. I have had the advantage of reading in draft the judgments of Cons V.-P. and Fuad J.A.. I agree with their conclusions. I only wish to emphasise that, for the reasons he has given, I find myself in the same difficulty as Cons V.-P. regarding the giving by the Commissioner of what I understand to have been copies of Mr. Hall's bank records to the Stewards of the Club. However, for the reasons given by Cons V.-P. I would not accede to the contention made in the amendment to the Respondent's notice.