HKSAR v. Un Mark William

HCCC 10/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 10 OF 2015

(ARISING FROM TWCC NO 1776 OF 2014)

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RULING ON DISCLOSURE

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Introduction

1.There has been an ongoing issue in relation to disclosure of unused material between the prosecution and the defence in this and other related cases.  Earlier in these proceedings the issue of disclosure was the subject of a decision by me on 24 September 2015.  It centred on the public comments made by law enforcement officers in relation to an international joint operation, known as “Operation Cocoon”, involving the Hong Kong Customs and Excise Department, the US Immigration and Customs Enforcement and the Australian Federal Police.  The public comments were to the effect that an international joint operation had been undertaken in relation to international drug syndicates that target and groom certain vulnerable persons and lure or trick them into transporting drugs to arranged destinations.  Arising from this operation was this and other cases. 

2.The defence argues that in light of the public comments and the information so far provided, there appears to be material concerning the operations of the syndicates in targeting and grooming potential couriers generally as well as material concerning the targeting and grooming of this and other defendants specifically. 

3.The position of the prosecution throughout has been that there is no unused material that is subject to disclosure.  Mr James McGowan, counsel on fiat for the prosecution, has recently revisited the issue.  He has been provided with five files which he has examined for this purpose and concluded at the end of his examination that there is no information or material in the files which can be classified as unused material and therefore disclosable.  In other words, there is no information or material in the files that can be of use or advantage to the defence in the trial of the defendant. 

4.In my decision on 24 September 2015, I explained that the prosecution has a duty of disclosure which is part of the defendant’s fundamental right to a fair trial.  I pointed out that it requires the prosecution to make full and timely disclosure to the defence of all relevant or possibly relevant material available or known to it whether here or abroad. In general terms, this includes such information or material that may in some way advance the defence case or weaken the prosecution case.  I also pointed out that in light of the foregoing, the prosecution was on notice to take all reasonable steps to identify and obtain such material.  It would appear that, following my decision, the prosecution has amassed the five files to address the issue of disclosure. 

5.A formal application has been made by Mr Michael Arthur, counsel for the defendant, for me to examine the five files to determine, on the facts and issues so far disclosed in relation to this case, whether anything contained in the five files is unused material and therefore disclosable.  This has been agreed to by both parties, with Mr Arthur noting in particular that the defence would be satisfied with me examining the five files for this purpose and would abide by my decision.  

6.For this exercise, I have borne in mind the relevant legal principles on the duty of disclosure as well as the guidelines contained in Chapter 12 of the Prosecution Code. 

7.I should say by way of general comment that from my examination of the files, it is clearly apparent that the relevant law enforcement officers and prosecutors from the Department of Justice for the purpose of complying with their duty of disclosure have used their best endeavours to identify and obtain all relevant material both here and abroad.  

8.From my general impression of the contents of the five files, it would appear that it mainly consists of the record and dissemination of information and intelligence between relevant law enforcement agencies and communications in addressing the issue of disclosure.  The information and material contained in the files is either not relevant to this case or known to the defence.  There are some documents that I wish to be further addressed on which I have marked and identified as follows: (1) File 1 A and B; (2) File 4 A, B and C; and (3) File 5 A, B, C, D and E.

9.Finally, I just wish to say that the sharing of intelligence between law enforcement agencies here and abroad is imperative in the interests of preventing and detecting criminal activity whenever and wherever it may occur.  Shared intelligence and investigative techniques are matters of great sensitivity and when necessary should be appropriately safeguarded.  It is when there is information outside the jurisdiction that may be relevant in the conduct of a defendant’s case that such information should be disclosed, firstly by being identified, and secondly, by being obtained through the Mutual Legal Assistance provisions if that is required. 

Mr James McGowan, counsel on fiat, instructed by Department of Justice, for HKSAR

Mr Michael JB Arthur, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the defendant