THE QUEEN v. EDWARD CHRISTOPHER HARRIS

                Office of Attorney General: Decision to, or not to, prosecute: abuse of the Court's process: should Court decline jurisdiction.

-----------------

JUDGMENT

-----------------

Silke, V.-P.:

1. The appellant, Edward Christopher Harris, was, on 19th February 1990, convicted after a trial before His Honour Judge Roy in the District Court of a single offence of incitement. The particulars of that charge were that he, on 21st April 1989 in Hong Kong, incited To Wing Lam to procure a girl under the age of 21 years to have unlawful sexual intercourse with a third party - himself.

2. He was acquitted on two similar charges of incitement, in respect of two different unidentified girls, the particulars of both alleging that on 24th April 1989 in Hong Kong he incited Nicole Marie Louise McKenzie - "McKenzie" - to procure a girl under the age of 21 years to have unlawful sexual intercourse with a third party - himself.

3. The appellant now seeks leave to appeal his conviction and, should it be necessary, the sentence of 18 months' imprisonment imposed upon him.

4. There being matters of law fit for the consideration of this Court I would give leave to appeal against conviction.

5. The Attorney General by way of Case Stated appeals against the acquittals.

Background

6. The appellant was a member of the Attorney General's Chambers and at the time of the charges in charge of the section dealing with vice prosecutions.

7. On 3rd November 1988 while his wife was away from Hong Kong the appellant telephoned an escort agency and asked for a girl to be sent to his flat. The girl was to be western, aged about 16 and was to wear white underwear. The girl who came to the flat was McKenzie. Matters of a sexual nature took place at that meeting, short of intercourse. There was a good deal of sexual talk. McKenzie was paid for her services and those of the escort agency by credit card. There were difficulties in obtaining payment and McKenzie telephoned the appellant for further information about his credit card - this about one week after 3rd November. The appellant had a discussion with McKenzie in the course of that conversation in respect of something he wanted and which she had and requested her to go to his flat again. This McKenzie was unable to do. There was explicit talk of a sexual nature relating to young girls. The appellant spoke of the rape of abducted young school girls. McKenzie was shocked. She told a friend about it and it was decided to tape any further telephone conversations with the appellant. When McKenzie telephoned him again in connection with the credit card she herself taped that conversation on a micro-cassette recorder.

8. McKenzie left Hong Kong on holiday on 30th November and while she was away there was a police raid, in connection with other matters, upon her flat. Among the items seized was the micro-cassette tape and also McKenzie's answering machine which had recorded on it a message left by the appellant.

9. Some time later, as the items seized did not involve the actual investigation then in progress, the tape was played and the Police Special Investigation Unit - "SIU" - became involved. Proper tape recording was then arranged for any conversation which the appellant might have with McKenzie or of messages left by him. She co-operated. There were recorded conversations on 31st March 1989, three on 13th April, two on 17th April and on 19th April and 21st April. There were also recordings of messages left by the appellant.

10. On 21st April a meeting took place in Central at which McKenzie introduced to the appellant an undercover police officer To Wing Lam - the man referred to in the charge upon which the appellant was convicted. That meeting was tape recorded. In the course of it the appellant asked To to procure Caucasian girls under 16 years of age for the purpose of sexual intercourse. The girls could be willing or unwilling and a payment of two to three thousand dollars which was proposed by To was agreed to by the appellant. There was explicit sexual talk.

11. On 24th April 1989 McKenzie telephoned the appellant. She told him that the necessary arrangements were being made by To and that a meeting was to take place between them on 27th April after which the appellant would be taken to a hotel room where a girl aged 13 to 14 years would be provided for the purpose of sexual intercourse. In the course of that conversation the appellant made particular reference to a girl aged 12 whom he would later identify and he desired her procuration for the same purpose. Hence, the second and third charges.

12. On 26th April McKenzie postponed the meeting informing the appellant by telephone. On 1st May the appellant left a message on McKenzie's answering machine enquiring if the arrangements were any further forward.

13. On 3rd May the appellant met the Attorney General and was confronted with his activities.

14. The truth and accuracy of the tape recordings were accepted at trial and I have read them in full. It is unnecessary to go into detail in respect of them at this point though it will be necessary to make reference to them in considering the second issue that is before us, the merits of the conviction. I should add here that it was agreed at trial that there had been no reports to the police of any abduction or rape of a western girl under the age of 21 from the time the appellant came to live in Hong Kong,  22nd November 1982, to the trial. It was accepted that police enquiries showed that in the block of flats, and in the adjoining block to it, where the appellant lived there were a number of girls in the 11 to 16 year age which group matched the description given by the appellant as to the girl whom he told McKenzie that he would later identify.

15. There was evidence that the appellant, over a period of some time, had had regular recourse to the services of those who provide sexual conversations on the telephone and for payment.

16. The first issue which lay for the judge's decision, as it does for ours, was an application to stay the proceedings against the appellant made on the basis: (l) that those proceedings amounted to an abuse of the process of the Court and (2) that the large volume of pre-trial publicity in the case had given rise to such prejudice that the appellant might not receive a fair trial or might not be perceived to be able to receive a fair trial.

17. The second issue can be disposed of now. This was a trial by judge alone without a jury and while the case had received an enormous amount of publicity, a trial judge is and must be taken to be capable of removing from his mind any matters prejudicial, or erroneous in fact, which may arise from such publicity and to concentrate his mind upon the evidence given in Court in the course of the trial. The appellant was not prejudiced in making his defence. I view the judge's decision on this aspect to have been entirely correct.

Abuse of the process

18. Let me say at once that this Court is not a court of enquiry into matters pertaining to the Attorney General's Chambers. That the trial below did assume a strong colour of this, the Attorney General himself and members of his Chambers actually giving oral evidence in the course of it, does not concern us. It is the decisions taken that do. The issue is two-fold. One: the propriety of an Attorney General who, having made a considered decision not to prosecute, subsequently rescinding that decision and directing a prosecution; second, that prosecution having been brought before the Court is its continuation an abuse of the Court's process against which the Court should give relief.

19. On 26th April 1989 the police handed their investigation file to the then Acting Director of Public Prosecutions. The Attorney General was informed and discussions took place as to whether criminality was involved. The Attorney General, very properly, the appellant being a member of his Chambers, decided to seek the advice of leading and experienced counsel at the private Bar. The questions to which he required an answer were first: did the facts amount to a crime; and second: if so was there sufficient evidence to mount a prosecution.

20. The police file was delivered to counsel on 27th April with instructions requiring his opinion on those two issues.

21. On 1st May counsel gave his opinion that no criminal charges could properly be laid on the basis of the material submitted to him. The Attorney General considered that advice, as he considered the advice of members of his own Chambers, including that of the substantive Director of Public Prosecutions. On the same day he decided that there should be no prosecution.

22. On 3rd May there was a meeting between the appellant, the Attorney General and the Director of Public Prosecutions. The appellant was told that there was be no criminal prosecution and - although this is wrongly set out in the trial judge's ruling, the only flaw in an otherwise excellent and commendable transcript and Reasons - he was further told that if his conduct had been found to amount to being criminal then a prosecution would have been brought. He was told that his position in Chambers was untenable.

23. The appellant's services were later terminated by mutual resolution of contract. It is unnecessary to go into the details of that as it is not suggested by Mr. Scrivener, who with Mr. Plowman, appeared for the appellant in this Court that the appellant has suffered real prejudice by the subsequent mounting of the prosecution.

24. On 4th September 1989 a form of trial by newspaper began. There would appear to have been deliberate leaks of matters contained in the police investigation file. The Attorney General took further advice on the issue of criminality and a second opinion was sought from the same leading counsel. On 14th September counsel received a new set of instructions which asked him to consider specifically the inchoate offence of incitement - an unusual charge. On 18th September counsel's second opinion was delivered. That contained the advice that there was a prima facie case of inciting to procure underage girls for the purpose of unlawful sexual intercourse.

25. On 23rd September there was a meeting between the Attorney General, leading counsel and members of the Attorney General's Chambers. Certain clarifications were sought from counsel as to the contents of his opinion.

26. On 28th September the Acting Director of Public Prosecutions gave, at the Attorney General's request, his advice to the Attorney General. On 2nd October 1989 the Attorney General had a further meeting with members of his Chambers, considered all the opinions and advice which had been placed before him and made the decision to prosecute. That decision was made public in the Legislative Council by the Attorney General on 18th October 1989.

27. Mr. Marshall-Andrews, who with Mr. Ozorio has appeared for the Crown throughout, concedes that there was an error made at the time of the earlier decision not to prosecute.

The office of Attorney General

28. The Attorney General is appointed under Warrant by the Governor. He has no greater powers in relation to the Royal Prerogative than those conferred by the constitutional documents of this Territory on the Governor. It was accepted in The Queen v. Tsui Lai Ying and others [1987] HKLR 857 at p.867 that the accountability of the Attorney General in Hong Kong is on a different plane from that of his United Kingdom counterpart:

"This stems from the very nature of the two different systems of Government: ours being a non-ministerial system: the United Kingdom a full parliamentary, ministerial system with accountability to Parliament being the core of its existence. But, in Hong Kong, the Attorney General is still susceptible to having his conduct questioned by members of the Legislative Council."

29. But the circumference of the office of Attorney General in Hong Kong differs little if at all from the circumference of office of Attorney General of United Kingdom.

30. Section 15 of the Criminal Procedure Ordinance, Cap.221 in its subsection (1), provides to the Attorney General by statute that which the English Attorney General exercises under the Royal Prerogative and when he acts under its provisions that act must be taken to be the equivalent of the exercise of the Royal Prerogative. The subsection reads:

"(l) The Attorney General shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference."

31. While this is a statutory provision I do not view it as in any way limiting the right of the Attorney General to exercise the Royal Prerogative in connection with his duties as the presenter of prosecutions on behalf of Her Majesty the Queen.

32. A decision not to prosecute is a solemn one not to be lightly undertaken. The duties of the United Kingdom Attorney General, and the considerations applicable to his decision to prosecute, or not to prosecute, were detailed to the House of Commons on 29th January 1951 by the then Attorney General - Sir Hartley Shawcross. As indeed they had by an earlier Attorney General, Sir John Simon. These principles have guided his successors. On 25th March 1987 they were repeated in the Legislative Council of this Territory by the then Attorney General, Mr. Michael Thomas, Q.C. when making comment on the non-prosecution of Alan Bond. We have had presented to us the Hansard of that occasion and this without any objection.

33. Mr. Thomas began by making reference to that which Sir Hartley Shawcross said in 1951:

"It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution."

and went on to refer to Sir John Simon's statement twenty years earlier in the House that:

"There is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers called 'a case'. It is not true, and no one who has held the office has supposed it is."

34. Mr. Thomas made reference to section 15(1) of the Criminal Procedure ordinance, set out above, and made it clear in firm words that the Attorney General has a discretion. Having made reference to a number of matters which play their part in the making of a decision, and emphasising that the list was not exhaustive, Mr. Thomas indicated that the decision whether to prosecute ultimately depends on a broad view of the interests of justice. And, at page 1271, the Hansard Report goes on.

"There are good reasons why any Attorney General goes not normally explain in public a decision not to prosecute in a particular case. It is rare for any public announcement to be made of that decision because it would reveal unfairly that someone had been under suspicion for having committed a criminal offence and even where that fact is known, to give reasons in public for not prosecuting the suspect would lead to public debate about the case and about his guilt or innocence. The nature of the evidence against the suspect would have to be revealed. Then some might say that was proof enough for guilt, and the suspect would find himself condemned by public censure. Sir, in our legal system the only proper place for questions of guilt or innocence of crime to be determined is in a Court, where the accused has the right to fair trial in accordance with the rules of criminal justice, and the opportunity to defend himself. So, members will readily appreciate that it would be quite wrong for any Attorney General, having decided that the issue should not proceed to trial in the Courts, to say anything in public that might be taken to indicate a belief in the suspect's guilt, or which might lead to a public discussion of that very question."

35. He then dealt specifically with the matter of the Bond prosecution.

36. The decision to prosecute or not to prosecute is that of the Attorney General alone. It has to be an informed decision which means that, if he sees fit, he consults with his advisors. As Sir John Simon put it:

"he would in some cases be a fool if he did not."

37. It is a decision taken bearing in mind all the factors which lie for his consideration.

38. Here, the Attorney General did not, and again quite properly, make public his original decision not to prosecute or the reasons for it. Despite this there was the highly unfortunate "trial by newspaper". It is not for this Court to speculate as to why the Attorney General saw fit to change his mind. The evidence as it stood on 1st May was precisely the same as it was on 2nd October. Once taken a decision should be final lest public confidence in the office of Attorney General be eroded. As the holder of the office of Director of Public Prosecutions, who had resumed his office on 1st May and then, later in that month, moved elsewhere put it in the course of his evidence at trial:

"It was my belief for reasons of trust and fairness that one should not go back on a decision not to prosecute conveyed to a suspect."

39. I consider that he had the rights of it. I do not suggest that there can never be an occasion when a decision so solemnly taken may not be resiled from but, in my judgment, the decision here, taken oh behalf of Her Majesty The Queen, was not such a one. But that is by no means the end of the matter for the vital question in this appeal is what, if any, protection the Court should offer to the person being prosecuted in such circumstances and was Judge Roy correct in permitting the prosecution to proceed.

The Court's power

40. My brother Fuad, in a useful judgment, surprisingly unreported, Keung Siu Wah v. Attorney General, Civil Appeal 112 of 1989, considered the application of judicial review proceedings to decision of the Attorney General to prosecute. He referred with approval to Cheung Sou Yat v. The Queen [1979] HKLR 630 - which concerned the validity of the consent of the Attorney General required under the provisions of the Prevention of Bribery Ordinance to the laying of charges - and that which Huggins, J.A. (as he then was) said in relation to a submission that the Court, even if it were manifest that the Attorney General had acted unfairly could not interfere. Huggins, J.A. felt that that might be right, but he went on that, as it was unnecessary for him to decide that particular issue in Cheung Sou Yat, he did not desire to be inhibited in subsequent cases by some incautious dictum. Also in Cheung Sou Yat Cons, J. (as he then was) stated he was unable to accept that the exercise or refusal of the Attorney General's discretion could never be called in question. Yang, J. (as he then was) took the view that it was to go too far to say that in no circumstances might the Courts question the Attorney General's exercise of his discretion. Fuad, V.P. concluded, having reviewed Tsui Lai Ying and a large number of authorities in other jurisdictions including the Australian case of Barton v. R. [1980] 32 ALR 449, that it was a

"..... constitutional imperative that the Courts do hot attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised".

41. Tsui Lai Ying and Connelly v. D.P.P. [1963] 48 Crim.App.R. 183 were concerned with matters of a criminal nature but the position, be it related to civil or criminal proceeding in my view does not differ. I accept that which Fuad, V.P. said at p.24 in Keung Siu Wah as stating the true position:

"It seems to me that my brothers were anxious to reserve a right to the Courts to intervene to prevent an abuse of process which prejudices a defendant on the lines of Lord Reid's statement in Connelly v. D.P.P. [1964] 1254 (HL) at p.1296 '.... 1 think there must always be a residual discretion to prevent anything which savors of abuse of process.'"

42. We have been referred in the course of argument to Connelly and to D.P.P. v. Humphrys [1977] AC 1 which Mr. Marshall-Andrews calls the seminal cases on abuse of process. Mr. Scrivener submitted that the Crown has stated the principles which arise from them on far too narrow a basis, the majority in Connelly being in favour of the wider approach as was, he says, the majority in Humphrys. In Humphrys Lord Dilnorne favoured the narrow approach, Lord Hailsham expressed no view and Lord Fraser reserved his opinion. Lord Salmon and Lord Edmund Davies took the wide approach.

43. I accept that a Court is entitled to safeguard its process from abuse. But it is a grave and serious matter for a Court to refuse jurisdiction. Mr. Scrivener has referred us to a line of cases where the Courts have intervened when - and I use this word not as a term of art but merely for convenience - an agreement has been come to between the Crown and the subject such as the granting of an immunity. I do not conceive these cases, useful though they may be, to have direct bearing on the situation here. There was no "promise" made to the appellant other than in the widest of laymans terms. There was an unilateral decision come to which was communicated to him. I would accept that it is unnecessary for the appellant in order to succeed to prove prejudice. As I have earlier indicated there was in my view no prejudice, in the real sense of that word, occasioned to the appellant. He was in no way prejudiced in the conduct of his defence. But, I am not unmindful of the course his life took from the time when, as he understood it, no prosecution would be brought against him and the disruption of that life by the institution of the proceedings.

44. The issue of double jeopardy, or of the "quid pro quo" cases, does not arise. However unthinkable it might be that the Crown would enter into a bargain or an agreement with a criminal, nevertheless it is a fact of life that immunities are granted and promises given to criminals for the purpose of securing their evidence at subsequent trials. If the Crown resiles on its promise then the protection of the Court may well be given. Mr. Scrivener has referred us to The Queen v. Kwok Chi Leung, Criminal Appeal No. 165 of 1985 (unreported), a murder conviction, where the Crown was held to its bargain, it being unfair for the murder conviction to stand when, in the faith of the position the Crown advised it had taken as to prosecution, the appellant made an incriminating statement acting to his detriment, upon which the conviction was based. It is Mr. Scrivener's main contention that it is a matter of public concern that a public officer, in this case the Attorney General, who gives a promise or undertaking or makes a public statement which is intended to be relied upon be held to the promise, undertaking or statement. It would be unconscionable or, at the least, unfair to allow the prosecution here to continue.

45. I view the success of this prosecution to be irrelevant to the issue which this Court has to decide. It matters not, if there be shown an abuse of the process of this Court by the bringing of the prosecution, whether the end result of that prosecution is a conviction.

46. When a Court comes to consider whether it should refuse jurisdiction in respect of a prosecution brought before it - and that in my respectful opinion is the real issue for decision here - then, while being careful to protect its process from abuse, it should be very wary indeed of taking that which I have earlier described as a grave and serious course. I have no doubt that the failure by an Attorney General to honour his decision can erode public confidence in the office of Attorney General. But that, despite Mr. Scrivener's submission to the contrary, is not for the Courts. Mr. Scrivener accepts that the Attorney General cannot be stopped from initiating proceedings, even in circumstances such as arose here, but it is his strong submission that once he does then it lies in the Court to control those proceedings so as to ensure fairness.

47. I accept that there must be within the Courts a fundamental right to ensure that justice is administered both fairly and properly. In this context I bear in mind Brooks [1985] 80 Crim.App.R. 164 and the Canadian case of R. v. Crneck, Bradley and Shirley [1980] 55 CCC 1. There was nothing unlawful in the change of mind of the Attorney General. Delay here does hot concern this Court. The Attorney General has not manipulated or misused the rules or the procedure. The concept of a fair trial is not one-sided. As Lord Diplock said in Sang [1980] AC 402:

"It requires that those who are undoubtedly guilty shall be convicted as well as those about whose guilt there is any reasonable doubt should be acquitted."

To do that there must be a trial.

48. This was not an easy decision for the judge to make. There were may and conflicting matters to be resolved. I am not however persuaded, helpful and attractive though the arguments of Mr. Scrivener have been - and, if I may be permitted to say so, the manner of presentation of the arguments by both Mr. Scrivener and Mr. Marshall-Andrews - that the decision to which Judge Roy came to accept jurisdiction was wrong.

Appeal on the Merits

49. I now turn to the appeal on the merits which we had heard de bene esse for the course we had taken during the appeal was to first hear arguments in full from both sides  on the abuse of process issue which would be, should we have found for the appellant, decisive of the appeal.

50. Mr. Scrivener takes two main points, the first is that the trial judge erred in finding an intention in the appellant to incite To - the undercover policeman - to commit the criminal act of procuring a girl under 21 for the purpose of sexual intercourse. He suggests that the judge failed to consider the circumstances in which the words and conduct alleged to be incitement were uttered. He has directed our attention to the matters raised at trial by Mr. Plowman in his written submissions and particularised in paragraph 2A, (a) to (j) (p.259). Further that the trial judge did not properly consider the evidence given by the appellant's wife - the only witness who gave evidence not in open Court - and the evidence given by Senior Woman Inspector Wong Wai Sze. This mainly on the issue of fantasy. The second matter is the judge's treatment of that which he referred to as lies by the appellant in the course of his evidence in the general issue.

51. For myself I entirely accept that the appellant fantasized. If the evidence of his wife is to be believed then that which he said of her interests in the course of explicit sexual conversation with McKenzie and with To was quite untrue. His predilection for paid sexual telephone conversations was spoken to by her. The contents of the tape recordings clearly indicate the appellant's pleasure in scatological conversations with the all pervasive sexual overtones. The defence was that everything was fantasy: there never was any formed intention to put those fantasies into effect: the appellant's course of conduct was still part of the general fantasies.

52. The evidence of the Senior Woman Inspector again related to the appellant's fixation with violence in sex and with underage girls.

53. But on the evidence generally and bearing in mind all the items to which Mr. Plowman drew the attention of the trial judge in his submission and which I have considered, it was for the judge looking at the evidence overall, and in particular that of the meeting of 21st April, to decide whether or not this was all a continuing fantasy or was an attempt to translate fantasy into reality. He carefully considered all of the evidence and I do not think that that consideration led him to a false conclusion. It was open to him to find that the detailed arrangements made by the appellant through McKenzie and To and his anxiety to know whether those arrangements were coming to fruition went beyond the bounds of a mere continuing fantasy. I have no doubt that on the evidence before him properly evaluated, as indeed it was, he was entitled to say as he did at page 25 of his Reasons:

"It is the conclusion of this Court based on the evidence before it that the accused is undoubtedly a potentially dangerous sexual deviate who enjoys indulging in conversation of a sexual nature. It may well be that his sexual deviancy began with fantasy but it is clear in the Court's view that this had progressed to the stage where his fantasies became reality. I cannot accept the proposition that he engaged in prolonged conversations with McKenzie and To simply because these were opportunities for sexual discussion which were free of any payment. I reject that theory."

54. In coming to those conclusions the trial judge was, and properly, aware that it was for him to assess the credibility of the appellant and the evidence he gave. He expressed the view that:

"Much of the accused's credibility was destroyed by lies to the Court which were exposed in cross-examination."

55. This related to his original denial of the use of an escort agency and subsequent confession that it had been used - partly to his evidence that he had engaged in sexually deviate behaviour with his wife which she emphatically denied - and his denial of unfaithfulness to his wife which unfaithfulness he subsequently admitted. Mr. Scrivener suggested that these arose from answers to questions which the appellant might, from embarrassment, wish to avoid answering truthfully. Further that the matters raised were entirely different from the offences charged and had no relevance to them nor did they assist the Court to consider whether the appellant had incited the procuration of young girls.

56. But the only use the trial judge made of these matters was in his assessment of the appellant's credibility. It is not suggested that he considered these lies of themselves to be probative of guilt. Lies can in conjunction with other evidence tend to support an inference of guilt. They can support it in the sense that they can confirm or tend to support other evidence which of itself is indicative of guilt. Nothing that was said in The Queen v. Chu Hon Yiu, Criminal Appeal No. 498 of 1989, (unreported) was intended to derogate from that principle. But that is not the use to which the trial judge put them here. In commenting on Mr. Plowman's submission that these were peripheral issues he said:

"That may well be so but if the accused is prepared to lie about those matters it increases the possibility he may also be prepared to lie about other issues."

57. I consider the manner in which the trial judge treated that which he found to be lies to be proper.

58. Having given earnest consideration to the main and unique issue raised in this case and to the evidence on the general issue upon which the trial judge founded his verdict of guilty, I am not persuaded that he fell into error I would dismiss the appeal against conviction.

The case stated

59. This came to the attention of the Court, although it had been known to the parties and to the judge well within the statutory time, at the fifty ninth minute of the eleventh hour. In fact the final form of Case was filed only after the substantive appeal had begun. It revolves around one narrow issue and the manner in which the charges were laid has bearing upon it.

60. It was the case for the Crown at trial that McKenzie was incited as one of the two principals in the act of procuration which was a joint enterprise, the procuring a girl for a third party. McKenzie was incited as a party to the offence. The respondent's case is and was that McKenzie was, on the Crown's evidence, a middle woman in the negotiation for procurement and that the Crown had failed to prove that the respondent knew and intended that McKenzie herself would commit the act of procuration. The charges as I have indicated played their part for the first charge upon which the respondent was convicted made no reference to McKenzie but did to To. The second and third charges upon which he was acquitted made no reference to To but only to McKenzie. If the Crown sought to rely upon joint enterprise then it is surprising that the form of the charges did not make this clear.

61. In his Reasons for Verdict in relation to the acquittal on the second and third charges, the trial judge stated that it was not the Crown's case that one person can procure through another. He recited the arguments on both sides as indicated above and made a finding of fact that the tapes to him seemed to show that it was To who was to do the procuring: McKenzie describing it at one point in them as "Just a bit of private enterprise on his part, you know." He went on to say that McKenzie had no role to play in the actual procuring, her role was to be confined to introducing To to the appellant, to meeting the respondent in Causeway Bay and to going with him to an hotel where To would arrive with the necessary girl. He accepted that had the charges been framed as ones of inciting McKenzie to conspire with To to procure the girl or inciting her to incite To the position might have been different. The Crown never suggested, nor in my view would they have been entitled to, that McKenzie was aiding and abetting this inchoate offence. He concluded that McKenzie was the conduit to To the procurer.

62. The question posed is. "Whether I erred in law in the circumstances in finding the respondent not guilty on the second and third charges and discharging him accordingly on those charges."

63. In my judgment, the trial judge did not so err in law. The whole tenor of the evidence was that McKenzie was, as he described her, the middle woman; that To was always the procurer. This was not a charge of conspiracy. I agree with the trial judge that had it been so the position might have been different. McKenzie was clearly a substantial participant in the background to the charges but the full actor and the person directly incited, even by the use of McKenzie as a conduit, was To.

64. In the event, I would answer the question framed in the negative and, under the provisions of section 84(c) (i) of the District Court Ordinance, dismiss the appeal by way of case stated.

Fuad, V.-P.:

65. I agree with the judgment just delivered by Silke, V.-P. but with one respectful reservation. I prefer not to express an opinion on the question whether or not the Attorney General should have resiled from his original decision not to prosecute Mr. Harris. This was, in my view, entirely a matter for the Attorney General. He was, in these unusual circumstances, entitled (and, in my view, bound) to consider whether the public interest would better be served by sticking to his earlier decision or by directing the prosecution to continue. He might have felt (and I assume that this is what happened here) that the public interest demanded the latter course and that this consideration outweighed any possible erosion of confidence in the Attorney General's decisions. It seems to me that the public would have good reason to feel more concerned that the prosecution of a serious charge was not allowed to go forward simply because the Attorney General obstinately adhered to a decision he was later convinced was erroneous.

66. I have had the advantage of reading in advance the judgment about to be given by Kempster, J.A. and I agree with that judgment also. I wish to add a few comments of my own only on the abuse of process issue.

67. Many authorities from England, Canada, Australia and New Zealand have been cited to us. They demonstrate that in so far as the criminal process is concerned, the parameters of the power of a Court to stay a prosecution otherwise properly brought before it are still unsettled. In my respectful opinion the justification for the Courts assuming this power is accurately formulated by Richardson, J. in the course of his judgment in the New Zealand Court of Appeal in Moevao v. Department of Labour [1980] 1 NZLR 464. Richardson, J. reviewed and discussed the leading cases in the Common Law jurisdictions decided up until then, and had this to say at pp.481-482:

"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.

These aspects of the public interest have been given some emphasis in contempt of Court cases which also arise for consideration under the inherent jurisdiction (Attorney-General v. Leveller Magazine Ltd [1979] AC 440, 449; [1979] 1 All ER 745, 749; Taylor v. Attorney-General [1975] 2 NZLR 675; Solicitor-General v. Radio Avon Ltd [1978] 1 NZLR 225, 230). In my opinion they are the underlying justification for restraining a prosecution which is an abuse of the Court's processes. In Taylor's case Woodhouse J observed at p.689:

'The inherent jurisdiction of the Court arises in relation to and for the purpose of giving proper support for the functioning of the Court as a Court of justice... [A]s one experienced officer of the Court in England has said, 'The juridical basis of [the inherent] jurisdiction is ... the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner': Master Jacob, 'The Inherent Jurisdiction of the Court', Current Legal Problems 1970 23, 27-28. Thus it is the due administration of justice - at the time and for the future - that is the concern and province of the Court: not the personal but extraneous problem that may face the individual litigant or witness or Judge in some particular case.'

Considerations of these kinds are, in my view, at the heart of the abuse of process principle. The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court's processes and so diminish the Court's ability to fulfil its function as a Court of law. As it was put by Frankfurter J in Sherman v. United States 356 US 369, 380 (1958): 'Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake'.

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

There is a further constraining consideration. Different persons may well have very different views as to what constitutes an abuse of process in the particular case. In Connelly v. Director of Public Prosecutions [1964] AC 1254, 1337; [1964] 2 All ER 401, 432, Lord Hodson said that he would find a discretion to determine whether or not a prosecution should be stopped 'immensely difficult to exercise at all, nor should l know how to exercise it judicially'. The twin problems of an absence of objectively ascertainable standards and the relative unfamiliarity of the Courts with the weighing of all the considerations which may bear on the exercise of prosecutorial responsibility require the Courts to tread with the utmost circumspection. While the Court must be the master and have the last word, it is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of tile administration of criminal justice that a Court would ever be justified in intervening."

68. I find it quite impossible to hold on the facts before us that it was an abuse of the Court's process to go ahead with the prosecution simply because Mr. Harris had earlier been told that he would not be prosecuted. Had the judge declined to proceed with the hearing on that ground, in my judgment such a decision would have been an exercise of discretion which could not have been supported.

Kempster, J.A.:

69. These proceedings began as an application by Christopher Harris for leave to appeal against his conviction in the District Court on 19th February last on one charge of incitement to procure a girl under the age of twenty-one to have unlawful sexual intercourse with him. On the last day of the hearing in this court, however, we effectively became seized also of an appeal by the Attorney General, by way of Case Stated, against the applicant's acquittal on two similar charges on the same occasion.

70. The course adopted by the Attorney General in relation to the applicant's prosecution bulks large in the arguments which have been addressed to us. It is common ground that on 3rd May 1989, after consideration, he personally told the applicant that he would not prosecute him for conduct which does not call for elaboration. He went back on his word. For reasons which, obviously, he felt compelling the Attorney General authorised a prosecution in relation to that conduct on 2nd October following; so informing the Legislative Council on the 18th. The news having been communicated to the applicant, then in Jakarta, he voluntarily returned to Hong Kong on 22nd October, having given the authorities notice, and was arrested. The Attorney General's change of stance gave rise to an application to HH Judge Roy to stay the hearing of the charges which subsequently had been laid. It was refused. On the applicant's behalf it is urged that the judge was in error.

71. The submissions in this regard necessarily invoked the inherent jurisdiction; by which is comprehended the procedure whereby courts are enabled to fulfill their role and to control and prevent the abuse of their process. Connelly v.D.P.P. [1964] AC 1254 at p 1301 per Lord Morris; Taylor v. A-G [1975] NZLR 675 at p 689 per Woodhouse J; A-G v. Leveller Magazine Ltd [1979] AC 440 at p 451 per Lord Diplock; Stewart Chartering v. C&O Management [1981] 1WLR 460 at p 461 per Lord Goff. Remedies for contempt or for intentional and contumelious conduct apart one such abuse is so to delay proceedings as to occasion a substantial risk that a fair trial of the issues will not be possible or to cause a defendant serious prejudice. Birkett v. James [1978] AC 297. Authority suggests that these principles are equally applicable to criminal proceedings. Bell v. DPP of Jamaica [1985]. AC 937. While it may be inherent in the constitutional function of every court that, to quote Lord Diplock in Bremer Vulkan v. South India Shipping [1981] 2WLR 141 at p 147, it has "a general power to control its own procedure so as to prevent its being used to achieve injustice", it is open to question whether such general power is possessed by what are sometimes called "inferior courts"; that is to say courts and tribunals other than the High Court. In the instant case, however, no such point has been or could be raised. By section 12(2) and (3) of the Supreme Court Ordinance (Cap 4) the inherent jurisdiction of the English High court is conferred on the High Court of this Colony and, by section 75(1) of the District Court Ordinance (Cap 336), thence to the District Court acting in the exercise of its criminal jurisdiction.

72. This Court has already held that the issue of a subpoena constitutes an abuse of the process were an accomplice had fulfilled his part of a bargain made with the Independent Commission Against Corruption as to the provision of information. It has also emphasised the importance of the accomplice's understanding of the promise made to him. Chu Piu Wing v. A-G [1984] HKLR 411.

"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 in the bargain .... 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."

per McMullin V-P at pp 417 and 418. These words specifically referred to a bargain and were not directed to the immunity which had been granted to the appellant by the Attorney General. They did not, therefore, involve any consideration of that law officer's responsibility in relation to prosecutions.

73. In Canada it has been held that where the government of that country, HM being expressed to be a party, had concluded an agreement with a trades union for the termination of a strike on terms precluding criminal proceedings against any member of the union as a consequence of any act committed during such strike it was an abuse of the process for the Crown, in its federal or provincial aspect, to prosecute in contravention of the agreement. R. v. Betesh [1976] 30 CCC (2nd) 233: -

"The abuse lies," said Graburn Co Ct J at p251, "in the Crown reneging on an agreement made and presented to a court. To renege on such an agreement constitutes an abuse of the process of the court. The Crown is expected to honour the agreements it has made in relation to prosecutions."

74. This conclusion necessarily involved an encroachment on the accepted principle that the decision whether or not to prosecute is for the Attorney General alone. The considerations which actuate his decision at any stage, even if, as in the instant case, they are made against an unfortunate background and he disclaims experience of the criminal law, being neither here nor there.

75. It has yet to be determined in this jurisdiction whether an Attorney General, exercising the prerogative by which the Crown controls the criminal process, reneges on a bargain or a promise of immunity to an accomplice who fulfills the conditions to which the promise is subject occasions a breach of the process of the court. A fortiori when he makes and then departs from a unilateral statement of intent in relation to a prosecution. It is common ground that the Attorney General's decision whether or not to prosecute cannot be the subject of judicial review as was the administrative act of the Director of Immigration when he failed to implement publicly stated government policy in A-G of Hong Kong v. Ng Yuen Shin [1983] 2WLR 735. Nonetheless, as Fuad V-P explained in Keung Siu Wah v. A-G Civil Appeal No. 112 of 1989 (unreported) at p 30: -

"... once the charge or indictment comes before a court for hearing it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised ... but one thing is clear - exceptional circumstances must exist before a court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine."

Likewise the High Court of Australia has held: -

"It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say that the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice."

Barton v. R. [1980] ALR 449 at p 459. More recently that court has also emphasised considerations of improper vexation, oppression and the maintenance of public confidence in the administration of justice. Jago v. District Court of NSW [1989] 87 ALR 577. The speech of Lord Diplock in Hunter v. Chief Constable [1982] AC 529 at p 536 and the judgments of the New Zealand Court of Appeal in Moevao v. Department of Labour [1980] 1NZLR 464 and Bryant v. Collector of Customs [1984] 1NZLR are to like effect.

76. More significant, perhaps, is that part of the speech of Lord Devlin in Connelly v. DPP in which, at p 1354, he said: -

"The Solicitor-General does not dispute that if the prosecution were in fact to behave in all the ways in which according to his arguments they could legally behave, there would be abuses which ought to be corrected. But in his submission the danger of abuse is a matter for the Crown; the Crown itself may be trusted not to abuse its powers and if a private prosecutor is abusing his, the Attorney General can intervene by means of a nolle prosequi.

The fact that the Crown has, as is to be expected, and that private prosecutors have (as is also to be expected, for they are usually public authorities) generally behaved with great propriety in the conduct of prosecutions, has up till now avoided the need for any consideration of this point. Now that it emerges, it is seen to be one of great constitutional importance. Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."

With that speech Lord Reid and Lord Pearce, making a majority of their Lordships hearing the appeal, agreed. The speeches of Lord Simon and of Lord Edmund Davies in R. v. Humphreys [1977] AC 1 disclosed the same approach to principle. Overall the weight of authority in England and in the Commonwealth generally demonstrates that the courts may exercise a discretionary power to stay if the conduct of the prosecution amounts to abuse in that it results in an unfair trial, oppression or prejudice to a defendant in the conduct to his case or if it involves the breach by the Crown of an agreement not to prosecute. The inroads which any exercise of the latter power may make on the Attorney General's responsibility must be acknowledged. I accept that the categories of abuse, like those of negligence, are never closed.

77. Insofar as it has been held that conduct by the prosecution tending to diminish public confidence in the prosecution process constitutes abuse it is to be observed that in Chin Piu Wing v. A-G such conduct arose in the context of a bargain between the accused and the authorities and in Jago v. District Court of NSW of delay.

78. Mr. Scrivener, for the applicant, not seeking to draw analogies from the Law of Scotland, advances the persuasive premise that a considered statement of intent by an Attorney General gives a prospective defendant a degree of confidence no less than a statement qualified by conditions.

"Why" Mr. Scrivener asks rhetorically, "should the recipient of an unqualified, assurance be in a worse position than the recipient of one that is qualified?"

Although undertakings by law officers are not tantamount to royal pardons "it is quite unthinkable that such an undertaking would not be honoured" McDonald v. R. (1983) 77 CLR 196 at p 200. Albeit that statement related to a grant of conditional immunity where the promisee had fulfilled the required condition Mr. Findlay, the Crown Prosecutor at the material time, took the same view of the considered statement made by the Attorney General of Hong Kong to the applicant that he would not be prosecuted. It would certainly appear that the course of conduct presently falling for our consideration is unique.

79. The law relating to the inherent jurisdiction could, I believe, logically be extended to apply to the factual situation outlined. We could decline to follow or could seek to distinguish R. v Crneck & Ors (1980) 55 CCC 1, a persuasive authority in which only the party to a bargain was held entitled to complain of the prosecution's change of heart as constituting an abuse of the process. In determining whether or not the law should so be extended I am, I confess, loath further to restrict the constitutionally exclusive responsibility of the Attorney General in this field since any involvement by the courts in the prosecution process is liable to compromise and to be perceived to compromise their impartiality. A passage from the speech of Lord Dilhorne in R. v. Humphreys at p 26 seems in point:-

"A judge must keep out of the arena, he should not have or appear to have any responsibility for the institution of a prosecution, the functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought then it may soon be thought that the cases he has allowed to proceed are cases brought with his consent or approval."

80. I conclude that if public confidence has been shaken in the integrity of that part of the judicial process whereby decisions whether or not to prosecute are made and communicated it must be the concern of the Governor-in-Council rather than of the courts. I do not believe that the process of the District Court should be held abused here or that the Attorney General's conduct led to any unfairness or oppression in the course of the trial. No more do I find, nor was it suggested, that the applicant was in any way prejudiced in the conduct of his defence. Essentially Judge Roy was invited judicially to review the decision of the Attorney General to prosecute the applicant. In my opinion what transpired here should not entitle him so to do. He came to the right conclusion in refusing a stay.

81. Coming to the Reasons for Verdict, by paragraph 4 of the Reamended Perfected Grounds of Appeal it is contended that the trial judge erred in two critical findings of fact. The first was that on 21st April 1989 the applicant intended that To, an undercover Police Officer, should procure a girl under the age of 21 for the purpose of sexual intercourse and the second that he also intended to have sexual intercourse with the girl so procured. The conversation between the applicant, McKenzie, a prostitute, and To in Central, recorded on tape and then transcribed, fully warranted these findings. If it be suggested that the judge ignored the evidence of Mrs. Harris and of Inspector Wong it fails since, implicitly, he accepted it by finding that the applicant enjoyed indulging in conversations of a sexual nature. The consideration that the applicant may have indulged in sexual fantasy in no way vitiates the judge's conclusions on criminal intent while evidence of the applicant's state of mind on, say, 24th April was surely relevant to his intentions three days earlier. The nature of his conduct in the course of the negotiations with To could scarcely have been held to fall outside the parameters of incitement defined as "suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity." in Smith & Hogan's "Criminal Law", 6 Ed p 252. As to paragraph 5, the applicant's mendacity was, properly, only considered in the context of his credibility. Paragraph 6, invoking the state of mind of To, raises no issue of relevance.

82. To the extent that questions other than those of law have arisen and leave to appeal against conviction is required I would grant it and treat this as the hearing of the appeal. I would dismiss the appeal.

83. The Crown's appeal by way of Case Stated is argued on the footing that had the appropriate evidence been available both McKenzie and To could have been indicted as principals in the joint enterprise of procuring a girl under the age of 21 to have unlawful sexual intercourse with a third person contrary to section 132(1) of the Crimes Ordinance (Cap 200). The respondent (applicant) was therefore guilty of inciting both to commit that offence on the occasions appearing in charges two and three. But the judge found as a matter of fact that the respondent never regarded McKenzie as a procurer in relation to any girl and that what he incited her to do was to procure a procurer. Further, by none of the three counts was the respondent charged with inciting both McKenzie and To to procure a girl.

84. I would hold that in finding the respondent not guilty on the second and third charges the judge did not err in law in such circumstances. This appeal should also be dismissed.

Sentence

85. Having refused an application to adjourn the application for leave to appeal against sentence until such time as the Judicial Committee has heard petition for special leave or should that be granted the subsequent appeal, we now turn to the matter of the sentence of 18 months' imprisonment imposed upon the applicant.

86. The maximum sentence capable of being imposed by the trial judge on an offence of this nature was 5 years. The public would be properly concerned with the position of the offender who held the office be did in the hierarchy of the Attorney General and the nature of the intention of the applicant in the crime of which he was convicted, even if there were no actual victim. We cannot think of a more serious scenario in the purview of an indictment as charged of this nature. No more can we think of anyone who has suffered and who has brought upon himself a greater personal loss as a result of the crime than the applicant. we bear in mind that he voluntarily returned to face the music and also that he had the delay from May to October when he had thought himself capable of reconstituting his life. But all that having been said, in our judgment, the reasons for sentence of the trial judge and the sentence he imposed properly reflected those factors. We are not disposed to interfere. The application is refused.