"We had a strong case. The matter was in the hands of the lawyers--the Attorney General and Mr. GUNSTON. We did not want to do anything which GODBER might regard as harassment or which could otherwise conceivably be held against us when the case came to court."
They did cause GODBER to be put on the Watch List. Therefore, the possibility that GODBER might try to escape was clearly adverted to by Mr. DAWSON and his colleagues in the Anti-Corruption Office. But the result of placing GODBER on the Watch List meant only that the Immigration officers were alerted. Nothing was said to the police constables patrolling the security areas or manning the entrance gates and police guard posts. Indeed, so far as I can acertain, no one in the police, outside the circle of certain officers in the Anti-Corruption Office, Mr. DAWSON and Mr. SUTCLIFFE, knew officially that GODBER was under investigation. Of course, there were plenty of rumours. Mr. Paul GRACE said that he suspected that something of this sort was afoot; and, as he said, news of the search of GODBER's flat on 4th June "spread like wildfire throughout the Force". But no one was told anything officially. Presumably, the reason for this was that GODBER, as yet, had committed no offence; and there was the inhibiting effect of section 30.
But, if the constables patrolling the security areas or manning the entrance gates at the airport had been shown, or given, a photograph of GODBER and had been given instructions to stop and detain him if he attempted to pass the land/air barrier, surely this could not be said to be disclosing to the constables that GODBER was subject to an investigation under the Prevention of Bribery Ordinance. This would have been no more than putting him on a kind of police Watch List. There would have been no breach of section 30. But, of course, one has to bear in mind that the Royal Hong Kong Police Force is a disciplined service; and it may be that action such as I have suggested would have been out of the question unless further action had been taken to interdict GODBER.
During my inquiries, the question naturally arose as to why GODBER was not interdicted in accordance with Colonial Regulation 60, the relevant part of which reads:-
"60(1) The Governor may interdict an officer from the exercise of powers and functions of his office
if ... criminal proceedings have been, or are likely to be, instituted against him."
As I have said, the Attorney General told me that, after studying the strength of the police case following the raid on 4th June, he never felt so frustrated in his life. To me, that indicates that, no matter what GODBER said, it was almost certain that he was going to be brought to trial. Nevertheless, it was the Attorney General's statutory duty to consider any representations made by GODBER on or before 11th June before finally making up his mind on the matter so that he could appropriately consent "to the institution of" a prosecution. Can it, therefore, be said that between 4th and 11th June criminal proceedings were "likely to be instituted”?
The Commissioner's evidence on this reads:
"I considered the interdiction of GODBER under Colonial Regulation 60; but I considered that the serving of a letter under section 10 of the Prevention of Bribery Ordinance could not be construed as criminal proceedings having been instituted against him until he had either failed to submit the explanation called for or the explanation when submitted had not been accepted by the Attorney General who would then notify me or the Director of the Anti-Corruption Office that he had consented to the institution of a prosecution against GODBER."
I agree. But the question was not whether criminal proceedings had been instituted, but whether such pro- ceedings were "likely to be instituted”. Apart from the Commissioner himself, it does not appear that anyone connected with the investigation adverted to the question of interdiction. The Attorney General's advice was not sought on the matter. Consequently, the Governor's decision [or that of his delegate-presumably he has delegated power to the Establishment Secretary in matters of this kind] was not sought. I do not know what advice the Attorney General would have given or what the Governor's decision (or rather that of his delegate) might have been. My point is that the question of interdiction was not considered at the correct level.
It is not for me to say what advice the Attorney General would, or should, have given to the Governor, if his advice had been sought. But, to say the least of it, he might well have come to the conclusion that he could properly advise the Governor that proceedings were "likely to be instituted". In reaching his decision, I imagine that the Attorney General would have had to consider the possibility of criticism at the hands of counsel for the defence in any subsequent prosecution, the argument being that, in advising the Governor to interdict, he (the Attorney General) had prejudged the whole issue and could not be said to have brought his mind to bear on any representations which GODBER might make. The Attorney General would also have had to consider the inhibiting effect of section 30. So far as GODBER himself was concerned, interdiction could not have amounted to a breach of s. 30. He had been given the section 10 letter. But what about the effect on others of the interdiction of GODBER? Nevertheless, I repeat: The question of interdiction was not considered at the correct level.
If, of course, GODBER had been interdicted, not only would he have ceased to exercise the powers and func- tions of his office; he would, as a matter of course, have been asked to hand in his police warrant card; and,
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