view to seeking the Attorney General's advice on what further steps might be taken to ensure GODBER'S continued presence in Hong Kong until the 11th June.
The question of GODBER being permitted to retain his passport was considered by the Commission. Generally speaking, no one, other than the Director of Immigration, has any power to demand that the holder of a passport shall surrender it; and the Director may only do so in certain circumstances, with which we are not concerned in this inquiry.
Mr. PENLINGTON's search warrant recited that there was reasonable cause to believe that in GODBER's quarter there were
"documents containing evidence of the commission of an offence under the Prevention of Bribery Ordin-
ance namely bank statements receipts and documents showing title to property”;
and Mr. PENLINGTON's warrant authorised Messrs. MORRIN, MCNUTT, Irvine and Henry to enter the flat, and
"search for, seize and detain the aforesaid bank statements, receipts and documents showing title to
property."
It certainly never occurred to those officers that, in the circumstances of this investigation, it might be arguable that GODBER's passport could be said to be a document "showing title to property”; and I do not think that, in the light of all the evidence before me, I should express a view as to that in this report. The officers seized every- thing which they considered to be relevant as regards "documents showing title to property". They did the job which Mr. PENLINGTON authorised them to do; and they did it well.
However, by the evening of 4th June, the police realised that they had a very strong case against Godber under section 10-so strong that Mr. DAWSON, very properly, caused GODBER's name to be put on the Immigra- tion Watch List. Indeed, it appears from Mr. PENLINGTON's evidence that this was discussed even before the issue of the search warrant. His evidence reads:
"Before the issue of the notice and search warrant, the question of preventing Chief Superintendent GODBER leaving the Colony had been discussed and it was agreed that he should be put on the Immigra- tion Department 'Stop List'. I understand that this was in fact done on the 4th June. My own view at this time was that if he attempted to leave by ship it would take some time to organise as it would have to be done illegally and that the placing of his name on the 'stop list' would be effective in preventing his leaving by air."
So, the police were acting on legal advice. Mr. DAWSON's evidence on this question reads:
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nor did I instruct that GODBER should hand over his passport. I feel that if this had been a legal measure, provision would have been made in law for it."
The police approach is understandable. It might be summed up in these words: "We either have power to demand or we do not. As regards the surrender of passports, we have no power to demand this. Therefore the question of GODBER surrendering his passport did not arise.”
In one sense, that is perfectly true. There is, however, another way of approaching the question. A judge or magistrate has no power to demand that an accused person shall surrender his passport. But it frequently happens that a judge or magistrate says to an accused: "I am considering the question of bail; and I am prepared to grant you bail on certain conditions, one of which is that you agree to surrender your passport. Do you agree?” I suppose the cynics would describe this procedure as a species of judicial blackmail. Be that as it may, courts of law have no desire to keep a suspect in custody, provided they can be assured of his continued presence within the jurisdic- tion of the court till the time fixed for his trial. Normally, a suspect appreciates the reasonableness of a request to surrender his travel documents as a condition precedent to the grant of bail.
The police did not think of saying something on these lines to GODBER on 5th, 6th or 7th June; and it would appear, there was nothing in the legal advice which they received which caused them to think on these lines.
This is much to be regretted. It is easy to be wise after the event; but I feel bound to say that in my view there would have been no legal objection to GODBER being asked by the police whether he agreed to surrender his passport. A point blank refusal by GODBER, to part with his passport, at a time when he should have been busily engaged with his solicitor preparing his representations, would surely have aroused police suspicion as to his intentions. It might well have caused them to put GODBER on full surveillance. Indeed, it might well have been sufficient to justify them applying to a magistrate for a warrant under section 18 of the Ordinance. This section says:
"18(1) If, in the course of an investigation of an offence ... suspected to have been committed by any person. it appears to the Director [of the Anti-Corruption Office]... that such person is preparing or about to leave Hong Kong, the Director... may apply to a magistrate for a warrant for the apprehension
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