HKSAR v. Chan Yiu Shing and Others

(Ruling 15)

HCCC 41/2016

[2018] HKCFI 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON DISCLOSURE

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1.During the course of the trial proceedings, it emerged that the surveillance officers reported their observations from time to time on the beat radio to a console, and another officer would make a note of the report which was later checked and signed by the surveillance officer. The disclosure of the surveillance reports was only made a short time prior to trial, but it was later revealed that the surveillance reports disclosed were a recreation of the reports from the original logs which were in code and that certain information concerning surveillance tactics and the identity of some of the surveillance officers had been omitted or redacted.

2.The decoded surveillance reports were first disclosed as unused material on 5 September 2017.  They were in Chinese and no English translations were provided.  It was during the course of PW2’s evidence (PC 16143) that it was revealed that a record had been kept of the oral reports made by the surveillance officers.  Objection was taken by the prosecution to reveal the original reports on the ground that they would disclose police surveillance tactics.  There were further submissions from the parties in relation to these documents on 21 and 22 September 2017.  The decoded documents from 27 May 2015 were referred to as Document A and the decoded additional documents were referred to as Document B.  Document B consisted of decoded reports of Document A except some parts were omitted or redacted.  I was informed that the parts that were omitted related to surveillance tactics and that the parts that were redacted concerned the identity of surveillance officers who were not relevant to the proceedings. 

3.Mr Jonathan Man, for the prosecution, explained that the parts not included or redacted in Document B were done because they revealed surveillance tactics of the police.  On 22 September 2017, Mr Man submitted two lever arch folders, one was headed “Log 1-13” and the other one was headed “Log 14-16”.  The two folders consisted of operation logs which contained coded observations at particular times on a particular day in relation to this case.

4.It was requested of me by the parties to examine the original surveillance reports to determine, taking into account the facts and issues as disclosed in relation to this case, whether anything contained in them is disclosable.  This has been agreed to by the parties, with counsel for the defendants noting in particular that the defence would be satisfied with me examining the original surveillance reports for this purpose.

5.For the purpose of addressing the issue of disclosure that has arisen in relation to these documents, I have marked the relevant exhibits which the prefix “DIS”.  The exhibits are as follows:

DIS 1		Copies of confidential surveillance reports in Chinese commencing from 27 May 2015 (referred to as Document A).
DIS 2		A list of several surveillance documents.
DIS 3(a)		Copies of Additional Unused Materials served on 21 September 2017 (OCTB RN 15000292) (referred to as Document B).
DIS 3(b)		English translation of Document B (DIS 3(a)).
DIS 4		Two Lever Arch Folders. (1) 1-13 Log and (2) 14-16 Log (submitted to the Court on 22 September 2017).
DIS 5		Schedule with a list of omitted parts in Document B (DIS 3(a) and (b)).

6.The prosecution has a duty of disclosure which is part of a defendant’s fundamental right to a fair trial.  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.  In general terms, this includes such information or material that may in some way advance the defence case or weaken the prosecution case. 

7.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. 

8.From my overall impression of the omitted or redacted parts of the reports, which I have assessed from the decoded English translations and the schedule of omitted parts as set out in exhibit DIS 5, I am satisfied that they consist of matters that are either not relevant to the case, or relating to surveillance tactics and the identity or names of certain surveillance officers that on their face are not relevant to a fact or issue in this case.

Mr Jonathan Man, SADPP, and Mr Gary Leung, PP of Department of Justice, for HKSAR

Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st defendant

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant

Mr Thomas Iu, instructed by Jackson Ho & Co., assigned by Director of Legal Aid, for the 4^th defendant

Mr Keith Fung, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 5^th defendant