J v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 1/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE

LAW LIST NO. 1 OF 2013

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J U D G M E N T

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Introduction

1. There are two applications before this court – an application by the respondents to set aside the leave granted ex parte by this court on 7 January 2013 to the applicant to apply for judicial review and an application by the applicant for an interim relief pending the outcome of the judicial review.

2. It is logical to deal firstly with the setting aside application.  Indeed, Mr Zervos SC, Director of Public Prosecutions, who appeared for the respondents has fairly conceded that the interim relief should be granted in the event that this court disagreed with his setting aside application. 

Background

3. These matters concern the investigation by the ICAC in respect of corruption offence(s) suspected to have been committed by a person (“Target”). It is believed that the applicant is acquainted with the facts relevant to the investigation.  Accordingly, on 2 March 2009, the ICAC applied ex parte and obtained an order (“Order”) from Deputy High Court Judge Pang (as he then was) authorising the issue of two notices under s.14(1)(d) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”).  Two s.14(1)(d) notices were duly issued and one of them was served on the applicant on 11 March 2009 (“Notice”).  The other one was served on “B” and I will touch upon B’s case below. 

4. The Notice is applicable in the case of a non-suspect and what it entails is that the applicant will have to appear before a named investigator at ICAC headquarters to answer orally, on oath or affirmation, questions relevant to the investigation over the Target.  Further, the applicant may be required by the investigator to produce relevant documents. 

5. It is not disputed that under the relevant provisions of POBO the issue of a s.14(1)(d) notice is subject to the supervision of the court.  Hence, the necessity of the Order.  For a detailed discussion of the relevant statutory provisions and the effect thereof, one can refer to the Judgment of the Court of Final Appeal (“CFA”) in A v The Commissioner of the ICAC, unrep, FACC 9/11.  More will be said about this Judgment below.

6. For the present purpose, it should be noted that the applicant contends that a s.14(1)(d) notice is subject to the existence of a number of jurisdictional facts.  Those relevant to the Notice are: an extant investigation into a POBO offence; J has access to relevant information; reasonable grounds for suspecting that an offence under the POBO has been committed; J is not a suspect; and the information sought is not readily available to the public.  I am quite prepared to accept this part of the applicant’s case for the purpose of leave application.  Indeed, Mr Zervos has not expressed any disagreement to the same.

7. The structure of the Order was such that the notices to be issued were to be in the terms of a draft notice annexed to the Order.  Under the draft notice, it was provided that the compliance with the terms of the document “should normally not be less than 14 days and not more than 28 days” from the date thereof.  Consequently, para 5 of the Notice provided as follows:

“I hereby specify the period within which you must comply with the above terms of this Notice as being within 28 days from the date of this Notice (‘the Specified Period’).”

8. It is undisputed that under the POBO the Commissioner of ICAC (“Commissioner”) is empowered to extend the period for compliance. Subsequently, on 12 occasions the period for compliance with the Notice was extended.  This delay in enforcing the Notice lies at the heart of the applicant’s complaints in the judicial review in question.

9. To complete a thumbnail sketch of the statutory regime, any non-compliance with the Notice without reasonable excuse is an offence which attracts criminal sanctions. 

10. The application for leave to apply for judicial review (“Form 86”) was filed on 2 January 2013.  As of that date, the applicant was obliged to comply with the Notice on or before 28 February 2013. 

11. On its face, the Form 86 is a well-drafted 31-page document bearing the names of senior and junior counsel and signed by the applicant’s solicitors.  I should make it clear that Mr Dykes SC who appeared at the hearing for the applicant (with Mr Parker) was not the senior counsel responsible for the drafting of the Form 86.

12. The Form 86 was supported by a short affirmation verifying the facts stated therein (“Affirmation”).  The Affirmation contained 5 exhibits, amongst which was a set of correspondence (40 pages) between the applicant’s solicitors and the ICAC (“J-3”).

13. On the strength of the Form 86, supported by the Affirmation, leave was granted by this court to the applicant on 7 January 2013 to apply for judicial review. 

14. Three points are taken by Mr Zervos in respect of the granting of leave – material non-disclosure, no reasonably arguable case and abuse of process.  In support of his case, an affidavit (“Affidavit”) from Mr Eddie Sean, Senior Assistant Director of Public Prosecutions (the 2^nd respondent) has been adduced. 

Form 86

15. I need to go into some of the details of the Form 86.  Four decisions are being challenged.  In short, they concern the refusal by Mr Sean to apply for a fresh order to replace the Order or to go back to the court to revalidate the Order; the constructive decision of the Commissioner to the like effect; the enforcement of the Order against the applicant; and “the decision of the Commissioner to extend time for execution of the Order on 12 occasions, amounting to a total extension of 3 Years and 11 months”. 

16. The factual basis of the application, as stated in the Form 86, is quite simple.  By way of introduction, the point was made, in bold font, that the Order was made “3 years 9 months and 27 days ago”.  That same point was made (all in bold font) no less than 3 times in the Form 86.  Para 2 of that document stated as follows:

“In circumstances explained below the Putative Respondent, the Commissioner of the Independent Commission Against Corruption (the ‘Commissioner’), has extended the operation of the Order 12 times. The Commissioner now proposes to execute the Order on 28 February 2013.”

17. As stated above, the factual case advanced in the Form 86 is quite simple.  After dealing with the Notice and the service of it on the applicant in paras 5 to 8.9, the authors then jumped to the applicant’s challenge of the Notice and/or the Order by way of an Amended Summons dated 19 November 2010.  The challenge was based on the infringement of the applicant’s privilege against self-incrimination.  A short history of that challenge was then given in paras 9 to 15.  It was rejected by Pang J on 13 June 2011.  The matter was taken further to the CFA with a certification by the learned Judge that the case gave rise to points of law of great and general importance.  The applicant’s appeal was dismissed by the CFA on 13 November 2012.  Para 15 of the Notice stated as follows:

“Throughout the above-mentioned proceedings the Commissioner has not sought to enforce the Notice against the Intending Applicant. It is understood the Notice in respect of ‘B’ has likewise not been enforced.”

18. In the following paras (17 to 22) under the heading “The Present Positon”, the point about the staleness of the Order was repeated and an assertion was made about the Commissioner’s continuing duty of full and frank disclosure. Also, there was an exchange of letters between the applicant’s solicitors (dated 16 November 2012) and Mr Sean (dated 12 December 2012) (“Sean Letter”). Those letters, due to their importance, were separately exhibited in the Affirmation and did not form part of J-3.

19. The 16 November 2012 letter appears to have been drafted by counsel.  In short, it suggested that due to the staleness and the “distinct possibility” of change of circumstances which would undermine the jurisdictional facts that underpinned the Order, it was incumbent on the Commissioner to apply for a fresh order or to return to court to revalidate the Order.  The Sean Letter was quoted as follows:

“This Department has carefully considered the points you raised in your said letter over the validity of the Notice to your client [J] issued in March 2009, pursuant to Section 14(1)(d) of the Prevention of Bribery Ordinance, Cap. 201 (the Ordinance). We take the view that the Notice is still valid and we do not intend to take the steps you suggested. Please note that your client is required to comply with the Notice on or before 28 February 2013, i.e., the new expiry date approved by the Deputy Commissioner of ICAC on 27 November 2012.

…”

20. In respect of the notice issued to B, it was mentioned twice in the Form 86.  Para 7 stated that it “does not fall for consideration in this case”.  It was also mentioned in para 15, which has been quoted in para 17 above. 

21. Those were all the material facts stated in the Form 86.  After referring to the “Legal Context”, “Standing” and “Time”, the document then set out the “Grounds of Review” from paras 40 to 85.  Para 40, under the heading “Overview”, encapsulated the thrust of the complaint as follows:

“The original Order of Deputy Judge D. Pang was obtained on 2 March 2009. 3 years 9 months and 27 days have since lapsed. It is highly probable that the circumstances (on the basis of which the ICAC sought authorisation from the Deputy Judge D. Pang, and on which the Judge granted his approval) have changed to the point whereby the present state of affairs can no longer justify the Order as it was originally envisioned. Indeed, the Judge had originally authorized a compliance period of not more than 28 days. Even though he can be taken to have anticipated that the Commissioner might exercise his discretion to extend that time, the Judge must have expected that the circumstances in which the Order would be executed would remain more or less the same as those that informed his decision. It is highly improbable that the Judge had expected that the Order would be extended up to 1430 days.”

22. There were 6 grounds of review.  Grounds 1 and 2 alleged ultra vires based on improper exercise and delegation of the Commissioner’s extension power by and to the Secretary of Justice (acting by Mr Sean).  These grounds were premised upon the terms of the Sean Letter (see para 19 above).

23. Ground 3 alleged illegality by reason of a “breach of the continuing duty of full and frank disclosure/candour on the part of the Commissioner”.  The complaint was that given the passage of almost 4 years, it was “manifestly improbable that nothing has changed in relation to the circumstances of the underlying ICAC investigation”.  In the same vein, ground 4 alleged another illegality by reason of the evasion of the supervision of the court over the Order.  Para 75 of Form 86 stated as follows:

“It is submitted that the use of the extension of time procedure to circumvent the proper supervision of the Court, which is required under the POBO, is ultra vires.”

24. Ground 5 alleged that the exercise of power to extend time for compliance with the Notice was illegal or irrational.  Ground 6 contained a wrap-up allegation that the decision to enforce the Order was unlawful.

25. The thrust of the case advanced in the Form 86 was the inordinate delay in enforcing the Order/Notice.  The multiple extension of the time for compliance was unlawful and therefore open to judicial review.  It was highly probable that the jurisdictional facts underpinning the Order/Notice had changed. 

26. I regret to say that the picture presented in the Form 86 is very far from the truth. 

The true picture

27. There is before this court a Chronology of Events (“Chronology”) which is not disputed by the applicant.  It is a very useful document because the significance of some of the events can only be properly appreciated once they have been put into the proper time frame.  The Chronology is attached to this Judgment as “Annex I”.

28. Once the relevant events are examined, it can readily be seen that what in fact happened was that soon after the Notice was served on the applicant he, as well as B, launched a legal attack over the Order and Notice on two arguments. It appears that the applicant and B were acting in tandem.  Both the arguments were pressed all the way to the CFA.  Whilst the proceedings were on foot, the applicant sought and obtained from the Commissioner the time extensions for compliance with the Notice on the ground that the legality of the Order/Notice was under challenge.  The upshot is that it had taken over 3½ years to resolve the two arguments and the compliance of the Notice was, by consent, held in abeyance.  I believe that, with the benefit of the Chronology, I need only refer to the proceedings taken out by the applicant and B to illustrate the above. 

29. On 26 March 2009, a Summons was taken out by the applicant to set aside both the Order and the Notice.  The Summons was returnable on 31^st March 2009 and it was based on the ground that the Commissioner was investigating “a matter which is not in law any offence under Hong Kong law”.  I was told by Mr Zervos that B had also taken out a Summons in similar terms (such information is consistent with the evidence before the court).  It appears from the Judgment of the CFA (see below) that the issue raised in these Summonses was where an advantage was offered in Hong Kong, whether s.9(2) of POBO applied even if the offeree was a public official of a place outside Hong Kong and the act or forbearance concerned was in relation to his duties in that place outside Hong Kong. 

30. It appears that at the hearing on 31 March 2009, the applicant’s Summons was adjourned whilst that of B was proceeded with (in this regard, the Chronology is inaccurate).  B’s Summons was dismissed and he duly appealed against the dismissal.  Pending the determination of B’s appeal, A managed to secured the agreement of the Commissioner to extend the time for compliance with the Notice on the basis that the issue in his Summons was of the same nature and the outcome of B’s appeal would affect his case.  The ability of A to take advantage of the delay caused by B’s appeal whilst keeping his own powder dry has resulted in considerable added delay to the enforcement of the Notice. Perhaps the Commissioner would handle a similar situation differently in the future. 

31. On 28 January 2010, the CFA rejected B’s appeal (see B v Commissioner of the ICAC (2010) 13 HKCFAR 1).  On 9 February 2010, ICAC wrote to the applicant’s solicitors and asked them to arrange for the applicant’s attendance at ICAC on 26 February 2010.  A number of correspondences then followed, the substance of which is that the appointment at ICAC was postponed at the request of the applicant to 13 March 2010 to accommodate his availability. There was no complaint about the staleness of the Order or the Notice, or anything of that nature.  However, on 10 March 2010, a fresh Summons was taken out by the applicant to challenge the Order and Notice on the ground that they violated the applicant’s right against self-incrimination (“Summons”).

32. A minor amendment was made to the Summons on 19 November 2010.  It was heard on 14 to 17 February 2011 and 7 June 2011.  On 13 June 2011, the Summons was dismissed by Pang J.  On 7 July 2011, the learned Judge certified that the case gave rise to points of law of great and general importance.  Accordingly, the challenge of the applicant was taken to the CFA.

33. On 13 November 2012, the applicant’s appeal was rejected by the CFA (see A v The Commissioner of the ICAC, unrep, FACC 9 2012). 

34. Three days later, the applicant’s solicitors wrote to ICAC and alleged, for the first time, that the Order was stale – see paras 18 and 19 above. 

Duty to make full and frank disclosure

35. There is no controversy that the applicant was under a duty to make full and frank disclosure in his ex parte application for leave to apply for judicial review.  What is involved in discharging such a duty is trite.  I need only to mention two points.

36. Firstly, it is well-established that in order to discharge this duty all the material facts must be made in the affidavit supporting the ex parte application, and not in the exhibits which should only contain key documents (see Hong Kong Civil Procedure 2013, vol 1, p 651, 3^rd para).  Applying that principle to an application for leave to move for judicial review, the disclosure must be made in the Form 86 (the supporting affidavit is normally a short document verifying the contents of the Form 86).  Mr Dykes agreed with the above.

37. This principle reflects the position that the duty is fairly and squarely on the applicant, and not on the court to search through the exhibits to ensure that the facts stated in the Form 86 are true and the picture given accurate.

38. Secondly, there is a further safeguard to try to ensure that the ex parte Judge will be given the full facts.  Para 5 of the Practice Directions for judicial review (SL3) (see Hong Kong Civil Procedure 2013, vol 1, p 2156) states:

“Where the documents in support of an application for leave exceed 10 pages, a list must be provided on the filing of the application identifying the pages of the exhibits relevant to the application. Where only part of the page needs to be read, that part should be indicated in any convenient way other than highlighting.”

39. Mr Dykes did not quarrel with the above Practice Directions and accepted that there was no list given to the court for the ex parte application in question. 

Material non-disclosure

40. I believe that the material non-disclosure in this case is too plain to require elaboration.  Far from sitting on his hands, the Commissioner was asked and agreed to the extensions in question by reason of the on-going challenges to the Order.

41. The facts suggest that the applicant was quite content to have the Notice extended whilst the legal challenges were played out.  He never complained about the staleness of the Order or Notice until his challenge was rejected by the CFA.  Mr Dykes has rightly conceded that the point of staleness could have been taken before Pang J at the hearing in February or June 2011 (by February 2011 the Order was nearly 2 years old). 

42. Valiantly, Mr Dykes tried to defend his case by submitting that the consensual extension of time was not a material fact.  He submitted that the extensions were not so much a matter of consent but were inevitable because of the legal challenges.  Had the Commissioner refused the requests, he would have been compelled by a court order to do so.  When asked whether the court should have been told about the “legal obligation” to accede to the extension requests, Mr Dykes again responded in the negative.  With respect, the arguments are obviously untenable.

43. I regret to say that the non-disclosure is both serious and culpable. There can be no doubt that counsel whose names appear on the Form 86 should have known, and in all probability did know, about the true facts.  It is singularly unfortunate that they had failed to act in accordance with the high standard expected of the Bar by the court and had betrayed the trust which the court normally placed on a document bearing counsel’s name. 

44. The 40 pages of correspondence (J-3) contained at least some of the letters exchanged between the applicant’s solicitors and the ICAC on the extension of time.  If there was a plot that J-3 might shield the applicant from the criticism of non-disclosure, it would not work.  By Mr Dykes’ admission, full and frank disclosure had to be made in the Form 86.  There was nothing before the court to suggest that J-3 was relevant.

45. In the premises, I have no hesitation in discharging my Order dated 7 January 2013 on the ground of material non-disclosure alone.  Further, I agree with Mr Zervos that, bearing in mind the history of this case since the service of the Notice and the manner in which the ex parte Order was obtained, the application in question was an abuse of process and my Order should be discharged on this ground also (should that be necessary).

Grounds of application

46. For completeness, I proceed to deal with whether leave should be granted in light of the full facts. 

47. I have always taken the view that Grounds 1 and 2 (see para 22 above) are not particularly impressive.  Had the leave application been based upon these grounds alone, no leave would have been granted on ex parte basis.  With the benefit of Mr Zervos’ analysis, it has become clear that those grounds are not arguable.

48. At the time when the letter dated 16 November 2012 was written (see para 19 above) the specified period for the compliance of the Notice was due to expire on 30 November 2012 (see Hearing Bundle, p 114).  On 27 November 2012, ICAC wrote to the applicant in response to the letter of the 16^th and extended the specified period further to expire on 28 February 2013.  The Sean Letter did not seek to affect the extension which was in place.  Instead, it merely answered the legal issues raised in the 16 November 2012 letter. 

49. Further, Mr Sean has in the Affidavit made it quite clear that he and his Department were acting as the legal advisor to the Commissioner.  It was not their function and they did not try to exercise any of the power possessed by the Commissioner.  Very fairly, Mr Dykes did not try to challenge such evidence. 

50. In respect of grounds 3 and 4 (see para 23 above), firstly, in light of the full facts it cannot be seriously suggested that the Commissioner has been evading the supervision of the court.  On the question of change of circumstances, Mr Sean’s evidence is that the investigation in question has been stalled by the legal challenges of the applicant and B and there has been no material change of circumstances since 2 March 2009. 

51. Mr Dykes sought to tackle Mr Sean’s evidence by submitting that the evidence is hearsay.  It should have come from the Commissioner himself. Further, it was said that the court may interrogate the Commissioner on the contention.  I am not impressed by the submissions.  The court does not blindly accept what has been put before it.  However, the history of the case is perfectly consistent with the proposition that the investigation has been stalled and there is no reasonable ground to disbelieve the evidence, albeit advanced via Mr Sean.  The court does not countenance any fishing exercise.

52. I also disagree with Mr Dykes that unless the current circumstances are exactly as those prevailing on 2 March 2009 the Commissioner is obliged to go back to the court.  That cannot be right.  The obligation can only arise in the event of material change of circumstances.

53. Finally, there is no merits in grounds 5 or 6 (see para 24 above). In light of the fact that the extensions were granted upon the requests by the applicant and in view of the legal challenges, I am unable to see how it can be said that the extensions were illegal or irrational.  It should not be forgotten that it is Mr Dykes’ submission that had the Commissioner declined to grant the extensions, it was open to the applicant to obtain a stay of the Order/Notice pending the determination of the legal challenges. 

54. Had I been required to do so, I would have held that there is no reasonably arguable ground upon which the leave application should be granted.

Conclusions

55. My order dated 7 January 2013 is discharged.  I make an order nisi that the costs of and occasioned by the discharge application, including the costs of the hearing on 26 February 2013, be to the respondents to be taxed if not agreed.  Such costs should be taxed on indemnity basis to reflect the serious and culpable non-disclosure.