CHU PIU WING v. THE ATTORNEY GENERAL

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P.,

1. This is an appeal from the decision of the Full Bench granting the, application of the Attorney General for committal to prison of the appellant for contempt on the basis of his refusal to obey a writ of Subpoena Ad Testificandum whereby he had been summoned before a disciplinary tribunal set up under Regulation 5 of the Police (Discipline) Regulations Cap. 232. An application to set aside the writ as oppressive and an abuse of the process of the court was dealt with by the Full Bench at the same time and was dismissed.

2. The facts leading to these proceedings are as follows. The appellant had formerly served as a constable in the Royal Hong Kong Police Force. He left the Force in 1973 having served for some 11 years. Thereafter he worked in various jobs and became associated with gambling establishments, although at the time of the events with which we are concerned he claimed to be a taxi driver.

3. On 29th September 1981 he was arrested by officers of the Independent Commission Against Corruption and, under caution, he made a statement in which he admitted having paid "protection money" to certain police officers in respect of the gambling establishments.

4. The investigating authorities were apparently interested in bigger game and he was asked to co-operate by giving information which might lead to further arrests.

5. In his affirmation in support of the application to set the writ aside the appellant maintains that he agreed to give further information upon certain conditions. These conditions are as follows:

This evidence was not controverted in the court below and the judgments of the judges in the Full Bench proceed on the basis that it was true. That is the position also before this court and Mr. Jonathan Daw who appears for the Crown has not sought in any way to contest the truth of these statements in the appellant's affirmation.

6. Upon these assurances and upon another assurance to which we will come in a moment the appellant made two further statements, one on 30th September after he had been released on bail and one on 22nd October. These statements give a long and circumstantial account of his involvement with a number of other persons, including some who were identified by him as serving police officers, in activities of a clearly criminal kind relating to the gambling establishments with which he was associated. On 23rd October he made a further short statement identifying from photographs certain persons who had already been named by him in his earlier statements.

7. The information contained in these three statements had nothing to do with the offences to which he had confessed in his original statement of 29th September.

8. Before he made any of these three statements he had also been assured by the interrogating officers that if any information which he gave verified the material which they already had in hand he would not be prosecuted for the offences to which he had confessed in his first statement. Notwithstanding this assurance he was subsequently prosecuted for offences arising out of the matters to which he had confessed and he received a sentence of six months imprisonment which has since been served. The explanation given to him for proceeding against him in this way was that the information which he had given "had not proved very useful".

9. On 29th September 1983 a disciplinary tribunal was set up under Regulation 5 of the Police (Discipline) Regulations Cap. 232 to inquire into certain charges brought against two of the police officers to whom the appellant had referred in his statements of 30th September and 22nd and 23rd October. The tribunal sat for the first time on 10th October 1983 and there were several adjournments before the first witness was heard on 6th December.

10. In the meantime the appellant had been requested by letter to attend on two occasions but he had not appeared at any of the adjourned sittings.

11. On 28th November 1983 a writ of Subpoena Ad Testificandum was issued under rule 17 of Order 38 of the Rules of Supreme Court and was served upon the appellant on the 29th.

12. On 6th December he appeared before the tribunal accompanied by a solicitor Mr. TONG Yee-chun. The adjudicating officer explained that legal representation was not permitted at such disciplinary hearings and Mr. Tong withdrew. The police prosecutor, Mr. Crosby, then called the appellant as his first witness. The appellant was not sworn, since proceedings before such tribunals are governed by Regulation 21, which provides that evidence shall not be taken upon oath. Having given his name, address and occupation the appellant was then asked by the prosecutor whether he recognized anyone in the room. It is understood that those present included the two suspect police officers. He refused to identify anybody or to answer further questions. The adjudicating officer then warned him that his attitude might amount to contempt but, after a short adjournment, granted to him for consultation with his solicitor, he maintained his silence. The adjudicating officer then told him that any evidence he might give would not be used against him in any criminal proceedings. This assurance produced no change in his determination not to testify and he was then bidden to attend on the following day. The proceedings before the tribunal continued with the calling of six other witnesses.

13. On 7th December the appellant appeared once again and refused to answer any questions. He was once again warned of the possibility of action being taken against him in the High Court. The hearing was adjourned to 19th December but for various reasons the tribunal did not in fact sit again until 3rd January 1984. The prosecutor had, in the interim, consulted the Attorney General. The appellant was, on the 28th December, 1983 served with a document signed by the Attorney General in which he was promised immunity from prosecution in the following terms:

"I hereby inform you that on condition that you give full and true evidence before the police disciplinary tribunal currently hearing charges of official misconduct against ________ and _______, no prosecution will be instituted against you in respect of any criminal offence against the provisions of the Gambling Ordinance or the Prevention of Bribery Ordinance connected with the above mentioned charges which may be disclosed by you in the course of your evidence during the said proceedings. "

Notwithstanding this assurance the appellant once again refused to testify.

14. On 27th January the Full Bench granted leave to apply for a warrant of committal and Notice of Motion was filed by the Attorney on 9th February. The hearing before the Full Bench commenced on 16th March. Mr. Daw appeared for the Attorney General and it seems that the appellant was not then represented. The hearing was adjourned for the purpose of legal aid being being accorded to him and the hearing re-commenced on 19th April. Mr.Y.W. Yung then appeared for the appellant. The hearing continued to 25th April and at its conclusion judgment was reserved. On 8th May by a majority the Full Bench granted the Attorney's motion and dismissed the application to set aside the subpoena with costs against the respondent. The court imposed a sentence of 6 months' imprisonment but ordered that the Committal Order should be suspended, the purpose being to give the Respondent a further opportunity for complying with the Subpoena. The Committal Order remains in suspension pending the determination of this appeal.

15. The argument before this court followed very much the course which it took before the Full Bench. Mr. Neil Kaplan, Q.C. appeared together with Mr. Y.W. Yung for the appellant and Mr. Daw once again for the Crown.

16. The first point taken for the appellant is that his position is covered by the rule which protects the identity of a police informer from public disclosure. For this counsel relies upon Marks v. Beyfus (1890) 25 Q.B.D. 494. That was an action for malicious prosecution. The plaintiff called as a witness the Director of Public Prosecutions, who said that the prosecution had been instituted by himself and not by the defendants and that he had a statement in writing from an informant whose name he declined to give. On appeal from a decision of the Queen's Bench Division refusing a new trial, the Court of Appeal ruled that the prosecution was a public one, that the action arose out of that prosecution and that on the ground of public policy the informer should not, as a matter of law and not of privilege, be disclosed. The court added, obiter, that this was a rule which could be departed from only in a case where disclosure of the name of the informant was necessary or right in order to show the prisoner's innocence. Since it was decided in 1890 Marks v. Beyfus has consistently been accepted as sufficient authority for the proposition that the rule which, on grounds of public policy, protects informers from disclosure in public prosecutions covers also civil proceedings in which it is sought to have a witness disclose either the identity of a police informer or the substance of his information for the purposes of a civil suit.

17. Rogers v. Home Secretary (1973) A.C. 388 and D. v. National Society for the Prevention of Cruelty to Children (1978) A.C. 171 show that the rule is not limited to those who are "police" informers but to anyone who gives information with a view to the taking of action upon it by a proper authority. These cases also make it clear that the question is still one of public policy and that, although the anonymity of the informant and the confidentiality of the material are important factors to be considered in estimating the needs of public policy, they are not in themselves grounds for excluding such evidence, although Lord Denning (dissenting) in the later case took a different view. What is conceded on all sides in the present case is that, in discerning public policy the court may have to balance one public interest against another.

18. The several speeches of their Lordships in D. v. N.S.P.C.C. strikingly illustrate the wide variety of instances in which the public interest may be invoked in having information excluded from evidential exposure. At page 233 Lord Simon of Glaisdale puts it this way:

"The various classes of excluded relevant evidence may for ease of exposition be presented under different colours. But in reality they constitute a spectrum, refractions of the single light of a public interest which may outshine that of the desirability that all relevant evidence should be adduced to a court of law. "

The question here however is whether the appellant is an informant of a kind who is within the extended rule in Marks v. Beyfus at all. The majority of the Full Bench thought that he was not. Mayo, J. enlists the opinion of Lord Diplock in D. v. N.S.P.C.C. (at page 218) to support that view.  Lord Diplock was, however, dealing solely with the question of confidentiality in the passage cited by the learned judge which therefore, in our view, does not help to determine the very issue we are now concerned with. The true ratio of Lord Diplock's opinion is to be found a little further down on the same page where, dealing with police informers, he says:

"By the uniform practice of the judges which by the time of Marks v. Beyfus ... had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure. "

This, we apprehend, is the passage upon which Mantell J. relied in dissenting upon this point in the court below. In that, it seems to us, with respect, that he was quite clearly right. But we think that the majority were right to hold that the appellant should not be regarded as a police informer in any sense which would oblige the strict rule in Marks v. Beyfus to be applied to him.

19. Can it be said that the appellant belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even run dry? We do not think it can. It is necessary to recall how absolute the rule in Marks v. Beyfus would seem to be. Both Esher M.R. (at page 498) and Bowen L.J. (at page 500) make it clear that where police informers are concerned there is no question of a judicial discretion to admit or not admit such evidence. This point is emphasized by Lord Simon of Glaisdale in his speech in D. v. N.S.P.C.C. (at page 234) where, in reference to the right of the individual to consent to disclosure of some matter which would otherwise be protected by a professional privilege, he goes on to say:

"By contrast the exclusion of evidence because its adduction would imperil the security of the State enures to the advantage of citizens generally, so that its exclusion cannot be waived by any party or witness before the court:".

The citation of Marks v. Beyfus immediately thereafter in support of this proposition makes it clear that in his view the anonymity of the police informer is a value to be protected for the well-being and security of the State.

20. As Mr. Daw tellingly observes the strict rule in Marks v. Beyfus if applied regularly to accomplices would disable the testimony of those who wished to turn "Queen's evidence". Not only would that be against the public interest but the practice of our courts would be seen to have been regularly in breach of a rule too well-known and long-established to have been broken per incuriam.

21. But that apart, the captured accomplice, as it seems to us, from the outset of his captivity and the commencement of his usefulness as a possible source of information, is likely in the great majority of cases wholly to lack that character of anonymity which marks the true police informer and renders him valuable as a source. There can be few members of criminal gangs who do not at least suspect that the cause of their arrest is connected with the earlier arrest of one of their number. Nor is it at all uncommon for the police with several persons in their custody to spice the interrogation of one prisoner with references to revelations or even recriminations made by another. And prior to all that, the daily newspapers will frequently have recorded arrests in such a manner as to make it clear to those not already arrested that they are already in jeopardy from the ever present possibility of collusion by one of their number with the authorities.

22. To that we would add a further consideration. Set against what we discern as the reality of the accomplice situation, vis-à-vis his confederates, the advantages available to the accomplice as a result of co-operation with the authorities, whether by way of total immunity or else in the prospect of reduced sentence, would seem to make the possibility of a drying up effect due to disclosure of identity distinctly unrealistic.

23. But then it is said that the appellant was, by means of this subpoena, being compelled to incriminate himself. Mr. Kaplan does not, of course, suggest that the appellant, even though called to give evidence upon subpoena could not legitimately have refused to answer any particular question the answer to which would clearly have tended to implicate him in criminal activities. He maintains, however, that the first question at which the appellant baulked was such a question.

24. What Mr. Daw complains of is the appellant's obdurate and total refusal to answer any questions touching upon the matters he had already disclosed to the I.C.A.C. and indeed to give any positive answer at all other than his name and address and his occupation. The appellant made it abundantly clear, even after the committal proceedings were instituted, that he was not prepared to tell the Tribunal anything whatsoever about his former colleagues.

25. Mr. Daw sought to persuade us that it would have been possible for the prosecutor to have elicited information from the appellant which would have been very useful for the purpose of the Tribunal while not incriminating the appellant himself. We do not think that that was ever a very lively possibility. Moreover the situation was complicated by several factors. The appellant's legal adviser had been, no doubt quite properly, excluded from the Tribunal and the appellant was without expert advice as to his rights when these questions were put to him. Then again he was in the position of a man who had reason to believe that he had already been tricked by the authorities. He had been promised that he would not be prosecuted if he gave information to the I.C.A.C. and he had nevertheless been prosecuted. Now it is true that the I.C.A.C. officers no doubt hoped to press criminal charges against the persons to whom this information related and it may be that what the appellant gave them was insufficient for that purpose. It is true also that the police in instituting the disciplinary proceedings had quite a different purpose in view in asking him to give the same information to the Tribunal. Nevertheless it would seem at least unlikely that the wealth of information made available to them by the appellant would not have been verified to some degree by what the I.C.A.C. officers already had in their possession. As. Mr. Kaplan points out no evidence by way of affidavit or otherwise has ever been tendered to support the suggestion that the information was not useful to the degree required. Despite that the appellant found himself subjected, without any assistance from his lawyer, to further questioning at a point when official assurances might well have sounded hollow. Again, there is the fact that the adjudicating officer at no time told the defendant that he need not answer questions which tended to incriminate him. Although it was, of course, for the appellant to claim privilege in respect of any particular question to which he objected, and although he made this impossible by his blanket refusal to co-operate at all, it would certainly have been preferable if the situation had been explained to him in greater detail.

26. Finally, there was the factor of the written immunity given to the appellant by the Attorney General and placed before the court on the 3rd of January. It is unnecessary to go into the terms of that except to remark that, as Mantell J. pointed out, it was conditional and limited in its scope. It is unlikely of course that the appellant looked at that with a lawyer's eye, but, although the adjudicating officer appears to have taken the view that it removed any right to decline to answer, the appellant remained potentially at risk.

27. In the end however it was for him to claim privilege in the usual way and it might be difficult in view of the attitude which he took to say that he had done so.

28. All of these factors relating to self incrimination may however be put together with one consideration which, as it seems to us, is decisive in this case. Mr. Kaplan's third and, in our view his strongest point is that the issue of the subpoena was an abuse of the court's process because of the promise which had been made to the appellant by officers of the I.C.A.C. It matters not that the police may have been blameless in this regard. Both the police and the officers of the I.C.A.C. are arms of the Executive in its investigative function. There is no doubt that the investigation set on foot by the police is one of great importance to the public weal. But what we have to decide is whether the public interest in having the ranks of the police purged of corrupt officers is opposed by any public interest which in this instance tells more strongly on the other side.

29. On the evidence before us it is clear that, whatever may have been in the minds of the investigating officers when they were treating with the appellant, he was satisfied in his own mind that they had undertaken to abide by his conditions. These included the undertaking - very important from his point of view - that he would be required to speak once and once only about his connection with the persons under investigation. When he confronted the Tribunal he did so as a man who had every reason to believe that the authorities had already reneged on a solemn promise. So far as we know it had never been suggested to him that the evidence he would be required to give before the Tribunal would be of the strictly limited and "harmless" character which counsel now says might have been sufficient to satisfy the needs of the prosecutor. It may well be that if that had been done the Tribunal would not have been confronted with a refusal as resolute and absolute as that which, understandably, has drawn the respondent's fire.

30. It is of course not for this court to pronounce upon the value of the material made available to the investigating authorities by the appellant. Certainly it is profuse and remarkably circumstantial. It may be that there are difficulties of which we know nothing which made the pursuit of inquiries suggested by it less fruitful than the investigators had hoped. But there is no doubt that the appellant must reasonably have believed that he had kept his side of the bargain. We think that there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain. It is a principle of the same kind which was upheld by the Privy Council, albeit in a very different matter, in the Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 W.L.R. 735. The appellant had every reason to believe that the subpoena was going to be employed to elicit from him very much the same material which he had already put in the hands of the I.C.A.C. Notwithstanding Mr. Daw's able argument we are far from satisfied that that was not precisely the intention of the prosecutor. In view of the undertakings which had been given we have no doubt that that was an oppressive use of a powerful instrument backed by the authority of the High Court. We would hold also that it was in the circumstances an abuse of the court's process.

31. To this we would add a further observation of a purely practical character. If accomplices to crimes who give information against their confederates are to be regarded as "informers" then we would think that the public interest, which is often well served by the co-operation of members of that class with the investigating authorities, is much more likely to be prejudiced by the breaking of faith in this fashion than it would be by any mere piercing of the veil of anonymity or breach of confidentiality which, as we have suggested, would not often be a very realistic safeguard of their interests and security.

32. As to the argument that the subpoena did not in any event oblige the appellant to testify, in view of what has been said already we do not think it would serve any useful purpose to deal with it in detail. We would endorse the view of all the judges in the court below and, despite the undoubted ingenuity of the arguments advanced by Mr. Kaplan in this regard, we would say merely that a Subpoena Ad Testificandum means what it says and that to interpret it in the way counsel suggests would largely deprive it of any practical effect.

33. A final twist of ingenuity in this argument proposed the idea that a subpoena issued out of the High Court was of its nature an instrument designed to assist inferior Tribunals only in cases when such Tribunals had power to take evidence on oath. It is true that under other Ordinances different bodies are empowered to compel the attendance of witnesses and, in some instances, specifically to oblige witnesses to testify. But we do not find the argument from silence impressive in the present case. We do not think that the absence of any power in the Police Force legislation to compel the attendance of civilian witnesses should be interpreted as an indication that the Legislature intended to inhibit the power of the High Court to give assistance by way of subpoena. In this matter we think we should follow the lead of McNeill J. in Currie and others v. Chief Constable of Surrey (1982) 1 W.L.R. 215, an authority which while not binding is directly in point. The case concerned disciplinary proceedings taken under precisely similar police regulations and the Tribunal in question had no power to take evidence upon oath. In a reserved and very fully considered opinion McNeill J. found that the subpoena was effective. It is, with respect, a decision which accords with common sense and we think we ought to follow it.

34. For the reasons given however we would allow the appeal, set aside the subpoena and discharge the warrant of committal.

4th September, 1984.