ATTORNEY GENERAL v. LORRAIN ESME OSMAN DATO MOHOMMED SHAMSUDDIN AND OTHERS

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HEADNOTE

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            Effect of Bill of Rights Ordinance upon section 77E of the Evidence Ordinance in respect of an order made by a master in December 1985 for a letter of request to issue to the High Court of Malaya to obtain evidence in Malaysia for the purpose of extradition proceedings. A summons to set aside the order of the master issued on behalf of the suspected person was struck out upon the application of the Attorney General.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. I am handing down this judgment in court as it involves matters of public interest concerning the effect of the Hong Kong Bill of Rights Ordinance 1991.

2. Lorrain Esme Osman (Osman) was arrested in London on the 6th December 1985 and has remained in custody since that time.

3. Following extradition proceedings at the Bow Street Magistrates Court, Osman was committed to custody on the 1st June 1987 to await his return to Hong Kong in respect of 42 charges alleging fraud, theft and corruption.

4. On the 11th December 1985 Master Betts made an ex-parte order on the application of the Attorney General under section 77E of the Evidence Ordinance (Cap.8) for the issue of a letter of request to the High Court of Malaya for the purpose of obtaining evidence in Malaysia to be used in extradition proceedings against Osman. Following the order made in Hong Kong for the letter of request, the High Court of Malaya made an order for the examination of witnesses in Malaysia on the 16th December 1985 after which the evidence gathering process commenced. Various challenges were made by Osman and a co-defendant Shamsuddin to the order made in Malaysia which applications were unsuccessful. Osman was represented at the proceedings when he expressed a wish to cross-examine witnesses, but later decided not to do so reserving his position. The order of Master Betts has been fully complied with.

5. By a summons dated the 22nd July, Osman seeks to set aside the order of Master Betts on the grounds that the order was made outside the jurisdiction of the master under s.77E of the Evidence Ordinance. On the 4th October, a summons was issued on behalf of the Attorney General to strike out the summons on the grounds that it is an abuse of the process of the court and or was not brought timeously. However, it was agreed between Mr Nicholls, Q.C., counsel on behalf of the Attorney General and Mr Martin Thomas, Q.C., for Osman that I should determine as a preliminary issue whether Osman has locus standi.

6. The relevant provisions of section 77E of the Evidence Ordinance are as follows :-

the High Court may order that a letter of request shall be issued and transmitted in such manner as the High Court may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong, requesting such court or tribunal to assist in obtaining evidence for the purposes of those criminal proceedings.

 

(2) ....

        (3)    An application to the High Court for an order under this section may be made ex parte supported by affidavit -

 

         (5)    The power to make rules of court under section 54 of the Supreme Court Ordinance shall include power to make rules of court with respect to this section (including the procedure to be followed) and for supplementing its provisions."

No rules of court have been made under subsection 5.

7. Mr Thomas submitted that the law in Attorney General v. "L" [1990] 1 HKLR 195 as expressed by Godfrey J. was correct unitl the Hong Kong Bill of Rights Ordinance came into operation on the 8th June 1991.

8. Godfrey, J. held in that case that an application for an order under s.77E of the Evidence ordinance should be made by ex parte originating summons and no one should be named in the title to that summons.  He also held that a suspected person is not a party to the cause or matter which is commenced by such summons. In his judgment at 197, Godfrey, J. said :-

"The application did not involve and was not made in the course of any lis inter partes. 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 reRacal Communications Ltd. [1981] AC 374 at p.380.Parties are never named (because there are no parties)in the title to an ex parte originating summons, or notice of motion.

9. However, Mr Thomas submitted that since the introduction of the Bill of Rights Ordinance there has been a fundamental change which enables a suspected person to have locus standi to challenge the making of an order under s.77E at least in the circumstances where criminal proceedings have already been commenced against the person in question.

10. As the argument on behalf Osman is based solely upon the provisions of the Bill of Rights Ordinance, it will now be convenient to set out those provisions to which the argument before me was directed.

            "2.    Interpretation

            (1)    ...

            (2)    ...

(3)    In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters.

            (4)    ...

            (5)    ...

            (6)    ...

            3.     Effect on pre-existing legislation

 

'person' includes any body of persons, corporate or unincorporate."

Articles 10 and 11 referred to in s.8 were relied upon by Mr Thomas. Article 10 reads:-

                    "Article 10

Equality before courts and right to fair and public hearing

 

         All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

Article 11 reads where relevant:-

                              "Article 11

Rights of persons charged with or convicted of criminal offence

         (2)    In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality -

 

11. Mr Thomas argued that the present position is now contrary to Article 10 as the relevant statutory provisions must be construed so that a suspected person will be legally entitled under 0.63, r.4 of the Rules of the Supreme Court to inspect documents filed under s.77E of the Evidence Ordinance to enable him to have locus standi to challenge the making of the order. Order 63, rule 4 provides :-

"4.(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-

 

        (2)   Nothing in the foregoing provisions shall be taken as preventing any party to a cause or matter searching for, inspecting and obtaining a copy of any affidavit or other document filed in the Registry in that cause or matter or filed therein before the commencement of that cause or matter but made with a view to its commencement.."

12. However, I agree with Mr Nicholls' submission that O.63, r.4 has nothing to do with whether a person is a party to proceedings, but governs the rights of the public to court documents.

13. In his submission that Article 10 applied, Mr Thomas submitted that the article incorporates right of access to the court and equality of arms. That the expression "determination of any criminal charge" does not limit the right of access to a court to the trial, but includes access during the earlier stages of the criminal process such as detention on remand. With regard to the principle of equality of arms, he contended that no elements of the examination of the case may be settled when one party is present or represented, but the other is not.  He argued that the right of access to court and the principle of equality of arms are applicable not only where the purpose of seeking access is to enable the accused to challenge specific matters relating to the alleged offences, but also to challenge a point of procedure, and in this respect he drew comfort from Osman's challenge to the evidence gathering exercise by the Crown in New York. In the proceedings in the United States under Attorney General of Hong Kong v. Lorrain Esme Osman and Others, U.S.D.C. (S Dist of NY) unreported 2.7.91, Sweet, D.J. suppressed the evidence that had been obtained by the Crown because the order obtained by the Crown did not set out the procedure which authorised the taking of depositions without notice to the applicant. Mr Thomas submitted that Osman had been improperly denied his right to contest the subpoenas prior to the depositions and to appear, act and participate in the depositions with the result that the transcripts having been obtained improperly, they had in turn been improperly transferred to Hong Kong. However, the reason for the decision in the United States did not relate to a breach of any rights to which Osman claims he was entitled, but was due to a technical failure by the Crown to set out the procedure in the order with the result that it was held that the Federal Civil Rules which require notice to be given applied.

14. Mr Thomas said that the order of Mater Betts was not contrary to the Bill of Rights Ordinance, but that its effect enables a challenge to be made as a matter of procedure. He therefore contended that the interpretation by Godfrey, J. in Attorney General v. "L" of s.77E of the Evidence Ordinance and the Rules of the Supreme Court are inconsistent with the provisions of the Bill of Rights Ordinance for it effectively bars a person affected by the order from coming to court to mount a challenge so thereby depriving the suspected persons of locus standi.  Accordingly he argued that the order should be set aside under 0.32, r.6 of the Rules of the Supreme Court and s.6(2) of the Bill of Rights Ordinance.

15. In support of his submission, Mr Thomas referred me to three decisions of the European Court of Human Rights :  Neumeister v.Austria (No.1) [1968] 1 EHRR 91 (ECHR), Kamasinski v. Austria [ 1989] 13 EHRR 36 (ECHR) and Kostovski v. Netherlands [1989] EHRR 434 (ECHR). In Kamasinski the court held that it is an inherent part of a "fair hearing" in criminal proceedings that the defendant should be given an opportunity to comment on evidence obtained with regard to disputed facts even if the facts relate to a point of procedure.  Kostovski concerned a conviction based to a decisive extent on reports of statements by two anonymous witnesses. Both witnesses had been heard by the police in the absence of the applicant and his counsel. One of the witnesses was heard by an examining magistrate, also in the absence of the applicant and his counsel. Neither of the witnesses was heard by the trial court. It was therefore held that the applicant had not received a "fair trial" resulting in a violation of Article 6(3)(d) and Article 6(1) of the Convention which are respectively the equivalent of Article 11(2) (e) and Article 10 of the Bill of Rights Ordinance. However, neither of these cases are relevant to the instant case for they are concerned with the decision making process of the trial. Neumeister related to a decision for detention on remand which had been given after the prosecuting authority had been heard in the absence of the applicant or his legal representative. The court did not consider that the principle of "equality of arms" extended to the examination of requests for a provisional release so that there had been no breach of Article 6(1) of the Convention which, as I have said, is the equivalent of Article 10 of the Bill of Rights Ordinance. This case does not therefore support Mr Thomas' proposition that the Bill of Rights Ordinance applies to an application under s.77E of the Evidence Ordinance.

16. In reply, Mr Nicholls cited R. v. Piraino (1982) 136 DLR (3d) 83 where the Canadian High Court was asked to consider the issue of a fair trial under the Canadian Charter of Rights and Freedoms. In his judgment at p.85, O'Leary J. had this to say :-

"In my view, so far as the issue before me is concerned, the Canadian Charter of Rights and Freedoms gives to every citizen the right to a fair trial. It does not assure him the right that every rule that governs that trial, when examined individually, be fair to him. It does, however, assure him that any individual rule that is so unfair that it will result in an unfair trial being had will be struck down."

17. Mr Nicholls also drew my attention to R. v. Whitmore (1987) 41 C.C.C. (3d) 555, where it was held that s.455.3 of the Criminal Code which is concerned with the holding of an exparte hearing before the issue of process did not violate the Charter. In his judgment at p.571 and 572, Ewaschuk, J. had this to say:-

"       The applicants contend that s.455.3 of the Criminal Code violates s.7 of the Charter in that the holding of an ex parte hearing before issuing process is by definition fundamentally unjust.

         I reject this submission as totally devoid of merit. The doctrine of fundamental justice imports the procedural notions of the right of notice, the right of presence, and the right of participation at hearings where a person's rights may be affected. However, these procedural rights generally apply only where final decisions are made affecting a persons' rights - not at the initial hearing where a decision is to be made as to whether a hearing should later be held where the person's rights would actually be in jeopardy. In fact, the accused here have a right to a preliminary inquiry of which they will have full notice, the right to be present, and the right to full participation. Only if a Provincial Court judge forms the opinion that there is sufficient evidence to commit the applicants for trial, will the applicants be in jeopardy of losing their liberty by conviction following a trial again with full rights of particpation at the trial.

...................................................................

I am satisfied that s.7 of the Charter does not apply to s.455.3 so as to permit an accused person the right to be present at a pre-inquiry. As Mr Justice Kaufman stated in Re Cohen, supra, at 449:

 

'I think it is clear that the principal purpose of this section [s.455.3] is to provide a Justice with sufficient information to decide whether or not a summons of warrant should issue, and that by itself is sufficient justification to holding this hearing not only ex parte, as the Code requires but also in camera.'

It must be kept in mind that the criminal prosecution process involves a number of steps at which the accused has varying rights and degrees of rights. The pre-inquiry is but a preliminary step to a possible bail hearing, preliminary inquiry and finally trial - only at the latter of which is the accused in jeopardy of conviction should his guilt be proved beyond a reasonable doubt. The applicants are not entitled to import into a pre-inquiry all the panoply and trappings of a criminal trial: see Vardy v. Scott (1976), 28 C.C.C. (2d) 164 at p.174, 66 D.L.R. (3d) 431, [1977] 1 S.C.R. 293 (S.C.C.)."

18. Having regard to the authorities and upon a construction of the provisions of the Bill of Rights Ordinance, I am quite satisfied that Articles 10 and 11 cannot be invoked for the purposes of s.77E of the Evidence Ordinance for they relate to the determination of a criminal trial. The issue of evidence gathering does not form part of the trial, but is part of the machinery that leads to the collection of evidence. At this stage the Bill of Rights Ordinance will not apply for the rights and liberty of a suspected person are not at stake or in jeopardy. Upon the execution of the letter of request, the rights of the suspected person may come under attack if, for instance, depositions are taken without affording him an opportunity to be present for cross-examination of the witnesses. Further, the suspected person will have an opportunity to challenge the evidence obtained and object to its admissibility at the trial under s.77F of the Evidence Ordinance. In this case, Osman has not yet been charged for he cannot be charged until he comes to Hong Kong. As a result, I accept the submission of Mr Nicholls that Articles 10 and 11 do not apply for they only relate to the trial procedure and not to the preliminary issue of evidence gathering.

19. It is trite law that a statute does not operate retrospectively unless there is a provision to the contrary. As there is no provision to this effect in the Bill of Rights Ordinance, the Ordinance does not, in any event, apply. Further, until Osman returns to Hong Kong, he is not entitled to avail himself of any rights in personam under the Bill of Rights Ordinance.

20. Indeed it is a startling proposition that the Bill of Rights Ordinance could have the effect that was advanced of setting aside an order made almost six years ago that had fully served its purpose in 1987. I have no hesitation in rejecting this argument which is devoid of any merit.

21. I am therefore quite satisfied that Osman has no locus standi with the result that the summons to set aside the order of Master Betts will be struck out. There will be an order nisi for costs to the Attorney General.