HARMONY GOLD LTD AND OTHERS v. SECRETARY FOR JUSTICE AND OTHERS

bjbj HCAL 16, 18 and 19/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 16 2007 --------------------- BETWEEN CHAN MEI YIU, PADDY 1st Applicant HARMONY GOLD LIMITED 2nd Applicant and SECRETARY FOR JUSTICE 1st Respondent COMMISSIONER OF POLICE 2nd Respondent LEUNG KING HUNG 3rd Respondent DETECTIVE SENIOR INSPECTOR A MAGISTRATE SITTING AT 4th Respondent EASTERN MAGISTRACY ON 16TH JANUARY 2007 ---------------------- AND CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 18 2007 --------------------- BETWEEN HSU MAY CHUN, KATHERINE 1st Applicant HARMONY GOLD LIMITED 2nd Applicant and SECRETARY FOR JUSTICE 1st Respondent COMMISSIONER OF POLICE 2nd Respondent LEUNG KING HUNG 3rd Respondent DETECTIVE SENIOR INSPECTOR A MAGISTRATE SITTING AT 4th Respondent EASTERN MAGISTRACY ON 16TH JANUARY 2007 ---------------------- AND CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 19 2007 --------------------- BETWEEN HARMONY GOLD LIMITED 1st Applicant CS SECRETARIES LIMITED 2nd Applicant LOONG PO MANAGEMENT LIMITED 3rd Applicant CHAN MEI YIU, PADDY 4th Applicant and SECRETARY FOR JUSTICE 1st Respondent COMMISSIONER OF POLICE 2nd Respondent LEUNG KING HUNG 3rd Respondent DETECTIVE SENIOR INSPECTOR A MAGISTRATE SITTING AT 4th Respondent EASTERN MAGISTRACY ON 16TH JANUARY 2007 ---------------------- (HEARD TOGETHER) Before : Hon Hartmann J in Chambers Date of Hearing : 25 September 2007 Date of Ruling : 25 September 2007 ------------------- R U L I N G ------------------- AUTONUMOUT The application before me is an unusual one. The applicants seek an order that this court should direct the Secretary for Justice to use his best endeavours to obtain an undertaking from the judicial and/or prosecuting authorities of Italy to embargo certain banking documents which were originally seized in Hong Kong and were subsequently transferred to Italy where they are now being held, I understand, in support of criminal proceedings instituted in that country. AUTONUMOUT The factual background is reasonably complex. Indeed, Mr Justice Saunders, who has had charge of this case but is presently out of the jurisdiction has, I am told, already written three judgments in respect of it. However, for the purposes of the matter before me, the background can be reduced to a short recitation. AUTONUMOUT The Italian authorities applied to the Secretary for Justice under the Mutual Legal Assistance in Criminal Matters Ordinance, Cap.525, for the issue of search warrants and production orders. The application was made, I understand, by way of a letter of request which set out in detail the basis upon which the requests were made. AUTONUMOUT Pursuant to the request, it appears that applications were made to a magistrate for the issue of search warrants to search the premises of certain offices and homes in Hong Kong and production orders aimed at obtaining bank records. AUTONUMOUT The magistrate authorised issue and, to the almost immediate knowledge of the applicants, searches were conducted in certain offices and homes. The searches were in terms of the warrants to be conducted by police officers. AUTONUMOUT The applicants have asserted, however, that, in fact, the searches were, for the main part at least, conducted by members of the Italian prosecuting authorities who accompanied the police. It is said that the searches were, in the result, unlawful. This has been denied by the Hong Kong police. AUTONUMOUT It should be said that the challenge mounted by the applicants goes not only to the manner of the search but also to an assertion that the letter of request itself was invalid, being vitiated by material misrepresentations. AUTONUMOUT The applicants challenges were made by way of judicial review. Leave having been granted, the material seized during the course of the searches at the offices and homes to which I have referred was placed under embargo and will remain under embargo until the judicial review process has been finalised or until a further order. Mr Justice Saunders, as I have said, has charge of the judicial review proceedings. AUTONUMOUT It appears, however, that it only recently came to the notice of the applicants that production orders were also issued and that one order in particular was addressed to UBS in Hong Kong; that institution complied with the order and delivered up certain of its records. Those records were taken to Italy by the Italian prosecuting authorities and at the time, it is conceded, there was no legal impediment to the removal. AUTONUMOUT The validity of the production orders, in particular the one concerning UBS, was not challenged as it was not appreciated at the time that they were even inexistence. By the time their existence was realised, certainly in respect of the one concerning UBS, the relevant documents had already been removed from Hong Kong. AUTONUMOUT It is not for me to speculate what would have happened if the applicants had known of the production orders earlier. However, on the basis that they were issued pursuant to the letter of request from the Italian authorities which letter also sought the issue of search warrants, and bearing in mind that the material seized under the search warrants was embargoed, I think it is more probable than not that, if the challenge had been made timeously, the material seized from UBS would also have been placed under embargo. AUTONUMOUT But my tentative observation, and it is no more than that, being essentially a deduction based on common sense, is really only of theoretical value. I say that because, of course, the material seized from UBS is no longer in this jurisdiction. Nothing in the ordinance gives me the power to direct that material removed from Hong Kong must be placed under embargo in the jurisdiction to which it has been removed. AUTONUMOUT I am not asked to attempt to direct the authorities in Italy to embargo the records seized from UBS. I have no extra-territorial jurisdiction in this regard. This is appreciated by the applicants. However, what the applicants seek, in order to outflank their difficulty, is an order from me directing the Secretary for Justice to use his best endeavours to persuade the authorities in Italy to embargo the records. AUTONUMOUT This application, a novel one, is made on the basis that fairness dictates that there must be an embargo, that fairness being underscored in the present case by international comity. AUTONUMOUT I am not prepared to make the order sought. I do not know that this court has any jurisdiction to direct the Secretary for Justice to attempt to persuade foreign authorities to a particular cause of action. Apart from anything else, how is this court to police its order? AUTONUMOUT For the Secretary for Justice, Mr Grossman makes a good point. It is equally open to the applicants, he has said, to communicate with the Italian authorities to seek their cooperation. When issues of fairness and comity are employed, the Secretary for Justice has no greater moral authority than the applicants themselves. AUTONUMOUT It seems to me that, if the documents are now in the possession of the Italian authorities, the proper course to be taken is for the applicants to apply direct to the courts in Italy for an embargo to be placed on those documents. The matter will then be determined according to Italian law. AUTONUMOUT In my judgment, while I am asked to direct the Secretary for Justice on the basis that, in part, comity demands that I do so, it seems to me that I run the risk of breaching comity if I take the course that I am asked to take by the applicants. Whether the documents should be placed under embargo is quite clearly an issue now of Italian law and is therefore to be decided by the courts in Italy. I can well understand those courts looking with disfavour upon an order made by myself that somehow the exercise of their jurisdiction is to be by-passed. AUTONUMOUT The application must therefore be refused. (M.J. Hartmann) Judge of the Court of First Instance, High Court Mr Alexander King, SC and Mr Steven Kwan, instructed by Messrs Haldanes, for the Applicants Mr Clive Grossman, SC and Ms Susana Sit, DPGC, instructed by Department of Justice, for the 1st, 2nd and 3rd Respondents PAGE - PAGE - A B C D E F G H 1udk 1udk &`#$ "@AB9D HHzbr Zk_UR %i?l ZorB r7Fv, 2wx^ #gP| %i?l r7Fv Zk_U #gP| & 6" ABC.dot setup Microsoft Word 9.0 Judiciary Title Microsoft Word Document MSWordDoc Word.Document.8