RE ORDINARY COURT OF MILAN, ITALY

RE ORDINARY COURT OF MILAN, ITALY

The court held that a magistrate acting as public prosecutor under Italian law performing investigatory and prosecutorial functions is not a 'court or tribunal' within the meaning of s.75 of the Evidence Ordinance when making a rogatory request in the course of preliminary investigation; the request was made by the prosecutor in his own right and not on behalf of a court, therefore the Hong Kong High Court lacked jurisdiction to give effect to the letters of request and the master's order was set aside.

Citation
RE ORDINARY COURT OF MILAN, ITALY
Parties
Applicant: Acceptor Corporation Ltd.; Applicant: Gianfranco Troielli; Respondent: Crown Solicitor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 July 1995
Case Number
HCMP620/1994
Procedural Posture
Mutual Legal Assistance/letters Rogatory Under Evidence Ordinance / Application to Set Aside Master's Ex Parte Order (interlocutory)
Outcome
The master's order dated 29 April 1994 was set aside for want of jurisdiction; order nisi for costs to Applicants
Legal Topics
Letters Rogatory, Jurisdiction, Ex Parte Orders, Political Offence, Fishing Expedition, Discovery
Source Language
EN
Criminal Law Mutual Legal Assistance Evidence International Cooperation Letters Rogatory Jurisdiction Ex Parte Orders Political Offence +2 more

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Parties

Acceptor Corporation Ltd.

Applicant

Gianfranco Troielli

Applicant

Crown Solicitor

Respondent

Procedural Posture

Mutual Legal Assistance/letters Rogatory Under Evidence Ordinance / Application to Set Aside Master's Ex Parte Order (interlocutory)

Legal Issues

  1. 1 Whether the High Court had jurisdiction under s.75 of the Evidence Ordinance to give effect to the letters of request
  2. 2 Whether the letters of request were made by or on behalf of a 'court or tribunal'
  3. 3 Whether the evidence sought was for instituted criminal proceedings or mere investigation

Ratio Decidendi

The court held that a magistrate acting as public prosecutor under Italian law performing investigatory and prosecutorial functions is not a 'court or tribunal' within the meaning of s.75 of the Evidence Ordinance when making a rogatory request in the course of preliminary investigation; the request was made by the prosecutor in his own right and not on behalf of a court, therefore the Hong Kong High Court lacked jurisdiction to give effect to the letters of request and the master's order was set aside.

Court Disposition

The master's order dated 29 April 1994 was set aside for want of jurisdiction; order nisi for costs to Applicants

Orders

  • The master's order dated 29 April 1994 is set aside.
  • Order nisi that the Applicants have their costs.