HKSAR v. Mccall Howard Kenneth and Another

HCCC 446/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 446 OF 2016

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Before:  Deputy High Court Judge Andrew Bruce SC in Chambers

Date of Hearing:  21 and 22 September 2017

Date of Ruling:  25 September 2017

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RULING ON ADMISSIBILITY

OF EVIDENCE

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INTRODUCTION

1.Howard Kenneth McCall and Lam Aroon (the 1^st and 2^nd Accused respectively) were arraigned on an indictment containing 3 counts.  The 1^st count against 1^st Accused alleges trafficking in a quantity of methamphetamine hydrochloride (usually referred to as Ice).  The locality of the trafficking is in Portland Street in Kowloon.  He pleaded not guilty to that count but tendered a plea of simple possession in full satisfaction of this count on the indictment.  The Prosecution was not prepared to accept the lesser plea.  The 2^nd count in the indictment, which is against both Accused, alleges trafficking in dangerous drugs including ice, a small amount of cocaine and 18 g of cannabis resin.  To this charge both Accused pleaded not guilty but tendered pleas of guilty to simple possession in full satisfaction of this count on the indictment.  The Prosecution was not prepared to accept the lesser plea.  In relation to the 3^rd count, which was against the 1^st Accused, the indictment alleges trafficking in a dangerous drug namely 756 g of powder containing 462.9 g of cocaine.

2.In an extremely simplified form, the facts which give rise to this indictment are that on 15 December 2015, the 1^st Accused was intercepted in Portland Street in Yau Ma Tei at about 8:30 pm.  He was arrested because the officer who arrested him suspected him of possessing dangerous drugs.  The search of the 1^st Accused revealed, amongst other things, the dangerous drugs the subject of Count 1.  The Accused was taken before the duty officer at the Yau Ma Tei Police Station.  After a number of police procedures were undertaken, the Accused was taken by the police to premises at 459 Hennessy Road in Causeway Bay.  The police arrived at 10:24 pm on 15 December 2015.  These premises could be the residence of the 1^st Accused.  The premises were opened with keys found in the possession of the 1^st Accused.  In those premises, the police found 2^nd Accused.  She was arrested.  The premises were searched and, amongst other things, the police found a quantity of dangerous drugs detailed in the 2^nd count of the indictment.  The 1^st Accused was taken by the police party to premises in No 23A Canal Road West in Causeway Bay.  They arrived shortly after 2 am on 16 December 2015.  The nature of these premises is less clear.  The premises do not appear to be the residence of the accused.  The subject of the police interest at Canal Road West was a cubicle within an apartment. Entry to the cubicle was obtained by a key found in the possession of the 1^st Accused.  Amongst other things, the drug is the subject of Count 3 on the indictment were found in these premises.  The drugs were found in a locked toolbox.  The 1^st Accused had a key to unlock that toolbox.

3.Both Accused were later charged with offences reflected in the present indictment.

4.I have taken the outline of the basic facts of the case from the witness statement of Police Constable 7791, Mr Yam Kai Ho dated 18 December 2015.  For the purposes of the present proceedings Counsel for the 1^st Accused, Mr McNamara, is content to proceed upon that basis.

THE OBJECTIONS

5.Counsel for the 1^st Accused objects to the reception into evidence of the product of the search at the premises in Hennessy Road and Canal Road West.  In simple language, the basis of the objection is that in each case the search was an unlawful search and was a search in violation of the rights guaranteed of the 1^st Accused under the Basic Law.  The basis for this contention is different in respect of the 2 premises in question. In relation to the premises in Hennessy Road, the contention on behalf of the 1^st Accused is in 2 parts:

(1)  The premises were searched in reliance on a search warrant issued by a magistrate on 20 November 2015 which warrant was, by the time of the search — some 25 days after the issue of the warrant — was invalid because the warrant was not executed within a reasonable time.

(2)  The other basis in law which would possibly permit the entry and search of such premises is section 52(1)(e) of the Dangerous Drugs Ordinance, Cap 134 which provide that such a search may be carried out without a warrant where it would be “not reasonably practicable” to obtain such a warrant. 

6.There was no search warrant at all in relation to the Canal Road West premises and accordingly the entry and it is contended that the search of those premises was not a search authorised by section 52(1)(e) because the Prosecution cannot prove that the obtaining of a search warrant was not reasonably practicable. 

7.There is no suggestion that the product of the entry, search and seizure at the 2 premises is otherwise inadmissible.

THE FACTUAL CONSIDERATIONS CONCERNING THE ENTRY AND SEARCH OF BOTH PREMISES

8.The search warrant in respect of the Hennessy Road premises was issued under section 50(7) of the Police Force Ordinance, Cap 232.  It was issued on 20 November 2015 in the Eastern Magistrates’ Court.  The information for the warrant was laid before the Magistrate by an officer of the Narcotics Bureau.

9.It is accepted by the Prosecution[1] that the Narcotics Bureau had received “Information/intelligence some time prior to 20 November 2015”.  Chief Inspector Chau Kin Hung of the Narcotics Bureau testified that the information available to Narcotics Bureau when the warrant was applied for related to the 1^st Accused and also the Hennessy Road premises.  A true copy of the warrant was produced as exhibit P1.  At the time, Chief Inspector Chau was attached to the operations section of Narcotics Bureau and was an officer concerned with police activities in relation to aspects of this case.  He testified that in general it was not the practice of the Narcotics Bureau in or about December 2015 to necessarily immediately execute search warrants that have been granted but rather they would wait and see how a particular case developed.  He told the Court that there was no written rule, but in practice the Narcotics Bureau would not seek an extension of a warrant thus issued for between one or two months.

10.Chief Inspector Chau told the Court at the time that warrant exhibit P1 was applied for they had no idea of the existence of the Canal Road West premises.  In due course, he said that the Narcotics Bureau did become aware of the relevance of these premises.  He was not able to say with precision exactly when that was but he estimated that it was one or two days prior arrest of the 1^st Accused by the Mong Kok Special Duties Squad.  At the time of that arrest, a decision had not been made as to whether or not to apply for a warrant in relation to the Canal Road West premises.  In cross examination, he told Counsel for the 1^st Accused that one or two days before the arrest of the 1^st Accused, he believed that it was possible that the Canal Road West premises were used for the storage or sale of dangerous drugs.  He told the Court that the Narcotics Bureau did not become aware of the possibility that there was an accomplice of the 1^st Accused at these premises until about 8:30 pm on the date of the arrest. 

11.In the meantime, a Special Duties Squad in Mong Kok headed by Detective Senior Inspector Lee received information to the effect that there was an expatriate about 50, 1.7 – 1.8 m tall, with white hair was actively selling drugs in the Mong Kok area.  What is clear is that the information received by the special duties squad in Mong Kok was not supplied by or derived from Narcotics Bureau.  A briefing was given to the officers of that SDS unit before they went on patrol.  The notebook of Detective Senior Inspector Lee reveals that at 8:40 pm he had been notified by a sergeant in his team that a male trafficker had been stopped.  (The 1^st Accused had been arrested at about 8:30 pm.)  Detective Senior Inspector Lee records against the time 9 pm “Notified by SIP OPS IB NB that ‘the above male’ was their ‘target.’”  At 9:50 pm Detective Senior Inspector Lee was told by an inspector in the Narcotics Bureau that “NB would give SDS 1 MKDIST ‘2 hideouts of the male’s for searching.’ [sic]” The notebook entry for that time concludes that the Narcotics Bureau inspector would furnish an “intel brief” later on.  The notebook then goes on to describe in very brief outline (no criticism is implied by this) of the search of the Hennessy Road and Canal Street West premises.  In relation to the Hennessy Road premises, the notebook refers to the service of a search warrant.  It is common ground that this is the search warrant dated 20 November 2015 which refers to the 7^th floor of 459 Hennessy Road Causeway Bay.  The testimony from Chief Inspector Chau was that this warrant was exhibit P1 and was supplied to the SDS team at the Hennessy Road premises just before they entered those premises.  The entry, search and seizures made by the SDS team at those premises purported to be on the strength of that warrant.

12.In relation to the Canal Road West premises, the notebook of Detective Senior Inspector Lee reveals against the time of 2:02 am on 16 December 2015 that one of the keys in the possession of the 1^st Accused was used to open the relevant room.  The notebook reveals that Detective Senior Inspector Lee recorded “then, I exercised [illegible] power under s 52(1) of Cap 134 and explained to the male that I was the team’s inspector and believe drugs for inside with his accomplice who may be disposing of the drugs.”  The reference to s 52(1) of Cap 134 is clearly a reference to section 52(1) of the Dangerous Drugs Ordinance which provides a battery of entry, search and seizure powers to police officers and officers of the Customs and Excise Service in relation to dangerous drugs.  While Detective Senior Inspector Lee does not specifically refer to section 52(1)(e), it is fairly obvious that this is what he had in mind.  The notebook reveals that the premises were searched at 2:03 am on that date.  The search concluded at 2:45 am and the police party appears to have left the premises at 5:40 am.

13.Not only was the information supplied to the SDS team derived independently from Narcotics Bureau, it is plain from what the Court was told that the relevant officers in Narcotics Bureau, it is did not learn of the arrest from the SDS team.  Indeed, issues about how Narcotics Bureau learned about the arrest of the accused and developments in relation to learning about the Canal Road West premises possibly threatened the revelation of certain police methods.  I acceded to an application by the Prosecution to hear the testimony of Chief Inspector Chau in closed court.  The application was not opposed by Counsel for the 1^stAccused.  The sensitivity of Chief Inspector Chau in relation to the revelation of certain police methods (which was the basis of the application) became even more apparent during the course of his testimony. He was content to answer questions about what Narcotics Bureau knew in relation to both premises and the involvement of the 1^st Accused.  He was also content to answer questions about when Narcotics Bureau received that knowledge.  In the result, Chief Inspector Chau was able to answer the questions posed to him without revealing the means by which such knowledge was acquired and the possibility of a claim of public interest immunity was avoided. 

PRINCIPLES

Constitutional provisions

14.The starting point for any analysis of the issues in this case must start with Article 29 of the Basic Law which provides as follows:

“ The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.”

The reference in Article 29 to Hong Kong residents is extended by Article 41 of the Basic Law to persons in the Hong Kong Special Administrative Region other than Hong Kong residents.

“ Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”

The consequence of Article 41 is that even if the 1^st Accused could not be characterised as a Hong Kong resident, the rights guaranteed under Chapter III of the Basic Law extend to him.

15.It is also appropriate to refer to Article 14 of the Bill of Rights which provides as follows:

“ (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.”

Further, Article 17 of the International Covenant on Civil and Political Rights provides:

“ (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.”

The ICCPR is incorporated by reference into the Basic Law by Article 39.  Further, it is important to note that the 2^nd clause of Article 39 declares:

“ The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

16.If there is a difference between Article 14 of the Bill of Rights and Article 29 of the Basic Law, that difference is essentially irrelevant.  I make that point because Counsel for the Prosecution made the point that there was no evidence that the Canal Road West premises was a “home” within the meaning of Article 14 of the Bill of Rights.  It may not be.  However, Article 29 of the Basic Law refers to the “homes and other premises” [my emphasis].  The 1^st Accused had a key to the Canal Road West Premises which, at bare minimum, was more than capable of supporting the inference that he had some rights over the premises.  Indeed, if the submission of Counsel for the Prosecution was correct, it is somewhat destructive of the Prosecution case which is, of course, that there is a clear link between the drugs found in the Canal Road West premises and the 1^st Accused.  That link is, of course, the key.  The short position is that it is appropriate to proceed upon the basis that the Canal Road West premises are other premises of the 1^st Accused and his rights under Article 29 of the Basic Law are thus protected.

17.The inviolability of a person’s home or other premises is qualified by the 2^nd sentence of Article 29 which prohibits unlawful or arbitrary intrusion into such home or premises.  Clearly that contemplates the existence of lawful means of entering such premises.  Article 29, together with the balance of the Basic Law was not adopted and promulgated in a vacuum.  It was adopted and promulgated against the background of a system of law which included laws regulating entry, search and seizure in respect of premises.  Although it does not arise here, it is recognised that an entry into the home or premises of a person may be lawful but still arbitrary and would thus be prohibited.  As regards this case, what is at issue in respect of both premises is the lawfulness of the entry by the police, and, if the entry was not lawful whether it violated the rights of the 1^st Accused.

Statutory provisions relating to search and seizure

18.The search warrant in question was issued under section 50 of the Police Force Ordinance, Cap 232.  Section 50(7) provides (so far as relevant):

“ (7) Whenever it appears to a magistrate upon the oath of any person that there is reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom, or any other article or chattel which is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, such magistrate may by warrant directed to any police officer empower him with such assistants as may be necessary by day or by night —

(a)   to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such newspaper, book or other document or portion of or extract therefrom or any such other article or chattel which may be found therein;”

Although the search warrant in this case was not applied for under the Dangerous Drugs Ordinance, Cap 134, it is pertinent to note the search warrant provisions in section 52(1E) of that Ordinance which are as follows:

“ Where it appears to any magistrate upon the oath of any person that there is reasonable cause to suspect that in any place there is an article liable to seizure under this Ordinance, or with respect to which an offence has been committed or is about to be committed against the provisions of this Ordinance, the magistrate may, by his warrant directed to any police officer or to any member of the Customs and Excise Service, empower such officer or member by day or by night to enter the place named in the warrant and there to search for and seize, remove and detain any such article.”

19.The Dangerous Drugs Ordinance also has a provision for a warrantless entry, search and seizure.  Section 52(1)(e) provides as follows:

“ (1) For the purposes of this Ordinance, any police officer and any member of the Customs and Excise Service may —

…

(e) without a warrant issued under subsection (1E) where it would not be reasonably practicable to obtain such a warrant, enter and search any place or premises if he has reason to suspect that there is therein an article liable to seizure; (Amended 62 of 1994 s. 8)”

It is also pertinent to note that section 52(1)(e) was amended in 1994.  The effect of the amendment was to add the qualification that warrantless entry search and seizure under that provision was permissible “where it would not be reasonably practicable to obtain [a warrant issued under subsection (1E)]”.[2]  For completeness, it is appropriate to note that there are provisions under section 50 of the Police Force Ordinance for warrantless entry and search of premises but none of them are applicable to the present circumstances.

CONTENTIONS OF THE PARTIES

20.Counsel for the 1^st Accused accepts that it is recognised in Hong Kong that the product of an unlawful search is not automatically inadmissible in a trial based on the use of such evidence.  Nevertheless, he contends that the constitutional rights of the 1^st Accused have been violated by reason of the unlawful search in respect of both premises and that violation is serious and the evidence ought to be excluded.  He contends that a ruling that the evidence is admissible would be, in effect to give the police carte blanche to effect warrantless searches.  Counsel for the 1^st Accused contends that the warrant which had been issued in relation to the Hennessy Road premises was stale and therefore of no effect.  He contends that the entry, search and seizure in purported reliance on that warrant was unlawful and in violation of the protections accorded to his client under Article 29 Basic Law.  Counsel for the 1^st Accused says that search is not rendered lawful by the application of section 52(1)(e) of the Dangerous Drugs Ordinance because that provision only permits a warrantless entry, search and seizure by the police if the obtaining of a search warrant under section 52(1E) of that Ordinance was not reasonably practicable.  His contention is that the obtaining of an up‑to‑date warrant was eminently practicable.  Accordingly, so Counsel contends, the practice of the Narcotics Bureau of not executing warrants obtained by them until they have awaited developments is simply not good enough.  In relation to the Canal Road West premises, there was no warrant in existence but the Narcotics Bureau knew at least 1 – 2 days before the raid of the existence of those premises and their connection with the 1^st Accused.  He makes the point that Chief Inspector Chau accepted that it was possible that there were drugs being stored and/or sold from the Canal Road West premises and that more than amply justified the application for a search warrant.  Accordingly, it is submitted by Counsel for the 1^st Accused, it was manifestly inappropriate to rely on a warrantless entry, search and seizure in purported reliance on section 52(1)(e) of the Dangerous Drugs Ordinance in relation to these premises.  Again, it is submitted that it follows that search in relation to the Canal Road West site was in breach of the constitutional rights under Article 29 of the Basic Law.

21.As noted already, Counsel for the 1^st Accused recognised that under the law of Hong Kong the obtaining of evidence in which is the product of an unlawful entry, search and seizure in violation of the constitutional rights of a person does not automatically result in the exclusion of such evidence.  He recognises that there is a discretion reposed in the Court of trial to exclude the product of an unlawful search in violation of the constitutional rights of the 1^st Accused.  Such a discretion is informed by the considerations outlined in HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232 and, on a proper application of those principles the evidence should be rendered inadmissible.

22.Counsel for the 1^st Accused contends that the discretion reposed in the Court of trial ought to be exercised in favour of the 1^st Accused so as to exclude the product of the searches of both premises.  He relies in particular on the proposition that a ruling in favour of the Prosecution in a case such as the present one would be to encourage future breaches and when taken with the clear violation of rights guaranteed under the Basic Law that is a proper basis to exclude such evidence.

23.The position of the Prosecution contends that so far as the Hennessy Road premises are concerned that the warrant which was purportedly executed by Detective Senior Inspector Lee had not expired and was a valid basis for entering those premises, searching them and seizing the exhibits which the Prosecution seeks to produce in respect of those premises.  The Prosecution submits, in the alternative, that if the warrant is stale and invalid then entry, search and seizure was justified by section 52(1)(e) of the Dangerous Drugs Ordinance.  The Prosecution contends that the circumstances of this case support the proposition that the obtaining of a search warrant under section 52(1E) was not reasonably practicable within the meaning of section 52(1)(e).  In the further alternative, if it is held that the obtaining of such a warrant was reasonably practicable that an application of the discretion in relation to the admission into evidence of the product of such search ought to be exercised in favour of the Prosecution applying the principles in HKSAR v Muhammad Riaz Khan (above).

ANALYSIS

The nature of the constitutional guarantees at stake

24.The starting point for any analysis is to recognise the nature of the right guaranteed by Article 29.  The right guaranteed by Article 29 is that the homes and other premises of Hong Kong residents shall be inviolable.  Clearly, the use of the word “inviolable” indicates a great deal about the fundamental nature and scope of the right guaranteed.  The article has its roots in common law rights of long standing.  Those rights were articulated in, amongst other decisions, Entick v Carrington (1765) 95 ER 807.  Although that decision is founded in the law of trespass (“our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”) it was concerned with the entry of an agent of the State.  The principle thus established is of fundamental importance.  However, in the last 250 years the rights articulated in cases such as Entick v Carrington have developed and are concerned with not only the protection of rights by the trespass remedy but extend to the protection of an individual’s right to respect for his private life and home.  The concern is not merely with crossing the boundaries of a person’s home or other premises.  So far as homes are concerned, in the context of a warrantless search of a home, Cory J in R v Silveira [1995] 2 SCR 297, §148 observed:

“ The home is the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society. To condone it without reservation would be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion that they may be enemies of the state. This is why for centuries it has been recognized that a man’s home is his castle. It is for this reason that the Narcotic Control Act prohibits entry into a private dwelling‑house without a warrant and it is for this reason that a search warrant must be obtained from a judicial officer on the basis of reasonable and proper grounds.”

Premises other than a residence might, in one sense, attract a lesser concern for the rights of those who occupy such premises.  However, in Article 29 both the homes and other premises are inviolable.  That said, it may be that the powerful privacy concerns do not attach to the same extent to other premises as they do to a home.

25.Against that, the community has a vital interest in the enforcement of the law and the safety of the community.  The statutes reveal a multitude of provisions to justify intrusion into the private life and home of members of the community and the provisions of the Police Force Ordinance and the Dangerous Drugs Ordinance referred to above are examples of this.  There is an obvious necessity for such provisions.  It is difficult to understate the interest that the community has in combating crime including combating the scourge of unlawful trafficking in dangerous drugs.  The cost to the individual and to the community of such criminal activity is such as to recognise a high interest in fighting such conduct.  Generally, in the fight against the unlawful trafficking in dangerous drugs, the law requires that those who enforce the law in this area and wish to enter homes or the other premises of individuals should obtain a judicially authorised search warrant.[3]  The authorisation for the issue of such a warrant requires a magistrate to balance the intrusion into constitutionally protected rights with the obvious need for enforcement of the law.  However, so critical is the fight against the unlawful trafficking in dangerous drugs that section 52(1)(e) contemplates warrantless entry, search and seizure in drugs cases in urgent circumstances.  That provision provides that such an entry and search in consequence seizure might be permitted where the obtaining of a warrant under section 52 was not reasonably practicable.  As has already been noted, formerly section 52(1)(e) permitted warrantless entry and search on reasonable suspicion without the condition that such a search may only occur if the obtaining of a warrant is not reasonably practicable.  However, in 1994 the law was amended following a decision of the High Court which held that section 52(1)(e) without such a condition was inconsistent with the Bill of Rights.  The plain implication of the amendment of this section to permit such a warrantless entry and search but only if the obtaining of a warrant was not reasonable practicable was an attempt to balance the value placed on the inviolability of homes and other premises and legitimate law‑enforcement concerns with a specific focus on the fight against unlawful trafficking in dangerous drugs.

26.Thus, it can be said, that the primary acceptable mode of the invasion of the inviolability of homes and other premises was via a search warrant approved by a judicial officer.  Such an officer in making a determination as to whether to grant or to refuse such a warrant is required, amongst other things, to balance the constitutional guarantees respecting the inviolability of homes and other premises with the necessity generated by the needs of law enforcement.  As Stock VP observed in Philip KH Wong, Kennedy YH Wong & Co v Commissioner of ICAC (No 2):[4]

“ The starting principle is the inviolability of private premises from arbitrary intrusion. The right to security of one’s home and of the place in which one works is a right historically protected by the common law and now widely recognised in constitutional and other human rights instruments. It is therefore incumbent on every magistrate or judge to whom an application to permit such an intrusion is made to remind himself of the seriousness of the act which he is asked to authorise and not to permit the apparent simplicity of the procedure or the frequency with which it is invoked to devalue its significance. The duty upon him has been described as ‘a high duty … to protect individual citizens from arbitrary infringements of their liberties, as well as a responsibility to facilitate the conviction of the guilty in the interests of the whole of society.’”

In Keen Lloyd & Ors v Commissioner of Customs and Excise & Department of Justice,[5] the Court of Appeal reiterated these concerns:

“ These observations highlight the importance of careful scrutiny of an application by a judicial officer, the need to approach the application judicially with an independent mind balancing the conflicting interests and the duty on the part of an applicant to place all material information before the judicial officer.”

Nevertheless, there is a statutory recognition that urgent situations will emerge where the obtaining of a judicially authorised warrant will not be possible and this is recognised in section 52(1)(e) of the Dangerous Drugs Ordinance.[6]

Validity of warrants which are stale

27.Another component of the tension between constitutional guarantees respecting the inviolability of homes and other premises with the necessity generated by the needs of law enforcement which is pertinent to the present case is the recognition that a search warrant, even if there is not an express restriction on the time for its execution either in the statute which provides the grant such a warrant or in the warrant itself, may be subject to an implied restriction on that time and that the warrants are to be read as containing an implied qualification that they would lapse after a reasonable period: Keen Lloyd & Ors v Commissioner of Customs and Excise & Department of Justice (above).[7]  In that case, it was held:[8]

“ The fact that ordinances creating a right to search private premises normally require the law enforcement agency to seek a warrant itself indicates recognition on the part of the legislature that this intrusion into the citizen’s right of privacy requires supervision by the judiciary in order to ensure that it is not abused or used cavalierly.

It follows that it is for the judicial officer charged with determining whether or not a warrant should be issued to decide whether a change in the matters relevant to the grant of a warrant has occurred, which might justify revocation of a warrant or the imposition of terms on its continuation.  In our view once a warrant has remained unexecuted for longer than the judicial officer who granted it would reasonably have anticipated, it is consistent with the requirement that the judiciary closely supervise the jurisdiction to grant warrants that the agency which has obtained the warrant return to the judicial officer who granted it and satisfies him that nothing has occurred, which would justify its revocation. It follows that if a warrant remains unexecuted for longer than the period within which the judicial officer is likely to have anticipated it would be executed it lapses unless it is extended by the judicial officer.”

As Higgins J (as he then was) observed in R v Applebee:[9]

“ A justice would normally assume that a warrant to search for stolen goods would be executed as promptly as was practicable and reasonable. If that was not possible or not desired, the warrant, if issued, should be revoked or surrendered. It may, in some circumstances, be appropriate for an issuing justice to grant an extended time for execution of a warrant. A warrant to search for evidence is, however, different in kind from a warrant to intercept telecommunications or other communications. In the latter case, interception over a period of time may be necessary to render the information obtained useful and relevantly intelligible.”

28.In Keen Lloyd & OrsvCommissioner of Customs and Excise & Department of Justice,[10] the Court of Appeal recognised the absence of express provisions for time limits in statutes creating warrant‑issuing powers recognised the undesirability of imposing imprecise and arbitrary periods for the execution of warrants.  Nevertheless, the Court recognised the need for warrants to expire within a reasonable time.  In this regard, the Court observed:[11]

“ 125. What constitutes a reasonable time period is fact sensitive and may be difficult to assess, which [McWalters JA] acknowledged himself in para 59 of the 1^stjudgment:

What is reasonable will inevitably be a fact specific question and no absolute figure can be laid down without descending into arbitrariness. In some case it may be hours rather than days, in other cases it will be days rather than weeks and yet other, weeks rather months. In most cases it will be days to weeks, perhaps one to 2 weeks.

126. We do not consider that this of itself is a forceful objection.  In the vast majority of cases one would expect warrants to be executed immediately or very shortly after their grant. There is nothing before us to suggest that any law enforcement agency is in the habit of obtaining warrants and not executing them promptly.  To the extent that a warrant is obtained and remains unexecuted for longer than was originally envisaged there would be no difficulty in returning to the judicial officer who granted it and seeking its extension.”

29.One rationale for this rule is that circumstances which may have existed at the time of the issue of a warrant may not exist for very long.  If ever there was an example of that, enforcement of the laws against unlawful trafficking in dangerous drugs must be that example.  For instance, a person might well occupy either as a residence or for other purposes (such as a drugs storeroom) premises for a very short while and someone else, wholly innocent, might occupy those premises later.  Drugs come and go in a heartbeat.  If such a change occurred between the issue of the warrant and its execution, a perfectly innocent (or no longer guilty) person may be the subject of a substantial intrusion into their rights for no good purpose.  Whether such a person would have any redress against the law enforcement officers who executed the warrant is at least open to question.

30.Indeed, it may be that if at the time information in support of a search warrant is provided to a magistrate and at that time the information is itself stale that could provide a basis for that magistrate refusing to issue the warrant.  This can be seen from authorities from the United States of America where the 4^th Amendment to the US Constitution prohibits the issue of search warrants in the absence of what is characterised as probable cause.  The authorities appear to say that probable cause might not be established if the information in support of the application for a warrant before a judicial officer was itself stale because if the information is stale it might throw into question whether the judicial officer could determine whether the items to be searched are in fact to be located at the premises nominated in the warrant.[12]  Plainly, the rationale for this is essentially the same concern as is revealed in the decisions of the Hong Kong Court of Appeal outlined above.

31.Against that background, the practice which Chief Inspector Chau described of applying for a search warrant and then not executing it while further enquiries were undertaken is at least capable of being inconsistent with the principles enunciated in Keen Lloyd & Ors v Commissioner of Customs and Excise & Department of Justice (above).  Obviously, such a system would be quite convenient for a law enforcement agency because it could swoop at the optimum time rather than having to get before a magistrate shortly before the optimum time.  I infer from the testimony of Chief Inspector Chau that there was a working assumption in, amongst other agencies as Narcotics Bureau, that such an approach was perfectly proper.  I suspect that the judgment at first instance of McWalters JA which was subsequently, for all relevant purposes, affirmed by the Court of Appeal came as something of a bolt from the blue for such agencies.  As Counsel for the Prosecution in dealing with the application for the exclusion of evidence in the present case accepted, those decisions did not change the law of Hong Kong.  They simply declared what it had always been — at least since the advent of the Bill of Rights and the Basic Law.

32.There is another dimension to the choice of judicially issued warrant as opposed to warrantless search under the Dangerous Drugs Ordinance.  The scope of the search is defined in a warrant.  In a warrantless search only the statute limits the scope of the search.  A judicially issued warrant is at least capable of being more precise.  That said there is no suggestion that the searches in this case were over‑broad.

Was the Hennessy Road search warrant valid?

33.The first issue that has to be determined in the present case is whether the search warrant upon which the Mong Kok SDS unit purported to rely in going into the Hennessy Road premises on 15 December 2015 was a valid warrant at that time.  It had been granted by a Magistrate on 20 November 2015.  It has not been suggested in this case that the officers who entered the Hennessy Road premises on the strength of that search warrant thought that it was anything other than a perfectly valid warrant at the time.  In my judgement, that good faith is irrelevant for the issues that have to be determined in the present case.  The warrant had been extant for 24 days.  As the Court of Appeal observed in Keen Lloyd & Ors v Commissioner of Customs and Excise & Department of Justice (above):[13]

“ What is reasonable will inevitably be a fact specific question and no absolute figure can be laid down without descending into arbitrariness. In some case it may be hours rather than days, in other cases it will be days rather than weeks and yet other, weeks rather months. In most cases it will be days to weeks, perhaps one to 2 weeks.”

The key in that passage is not the number of days or weeks it is that the expectation on the part of the law and the Magistrate that the warrant will be executed promptly and the degree of promptitude required is to be derived from the context.  Almost invariably in law enforcement with respect to the unlawful trafficking in dangerous drugs things move quickly.  I am not sure I can say on which of the 24 days the warrant lapsed, but I am sure that it was substantially before the date upon which it was purportedly executed.  If the Narcotics Bureau had properly appreciated what was required in terms of a warrant not being permitted to go stale (either by application for the renewal of the warrant or a fresh warrant) I think in the circumstances of this case it is highly likely that there would have been an application for the warrant to have been extended or, where relevant, an application for a fresh warrant to be granted.

34.I am not sure what the reason might be for choosing to apply for the search warrant under the Police Force Ordinance as opposed to the Dangerous Drugs Ordinance.  This issue was not raised in the present case.  A possible explanation is that the scope for search in terms of items might be seen to be wider under the Police Force Ordinance warrant powers as opposed to those under the Dangerous Drugs Ordinance.  However, I proceed on the basis that there is no significance in the choice for the present case.  The language of the relevant statutes is for all practical purposes the same.  Certainly, so far as this case is concerned, I can see no basis upon which a Magistrate might have refused an application for a search warrant had it been made under the Dangerous Drugs Ordinance as opposed to the Police Force Ordinance.  That might be an issue for another time in another case.

35.That then gives rise to the issue of whether Detective Senior Inspector Lee and his team would be permitted to rely on section 52(1)(e) of the Dangerous Drugs Ordinance and enter the premises without a warrant issued under section 52(1E) because it was not reasonably practicable to obtain such a warrant.  There is no suggestion that he did not have the state of mind (that is, the officer “has reason to suspect that there is therein an article liable to seizure”) required under section 52(1)(e).  Where more than one source of power permits entry then the fact that one source is cited does not invalidate the search.[14]  I am of the view that if one source of power was relied on erroneously but there was another source and the conditions of exercise of that alternative source of power are satisfied then entry under the latter would render the entry lawful.

36.If the problem is looked at on the premise that Detective Senior Inspector Lee and his team had entered the Hennessy Road premises without any information or assistance from the Narcotics Bureau, it was not reasonably practicable to obtain such a warrant.  The arrest of the 1^st Accused had taken place about 8:30 pm.  Making allowances for police procedures which would have occurred following his arrest, it would readily provide a basis upon which it could be said that it is not reasonably practicable to obtain a warrant.  Locating a magistrate at that time of the day would have been challenging and the preparation of the appropriate paperwork would have also taken time.  On the other hand, had it been officers from the Narcotics Bureau who had arrested the 1^st Accused at the same time and taken him to the Hennessy Road premises without a warrant, I think that it could not have been said with respect to those officers that it was not reasonably practicable to obtain such a warrant.  They had a belief well in advance of the connection between the 1^st Accused and those premises and it is an obvious inference that the prospects of obtaining such a warrant a few days or even a few hours prior to arrest was practicable.  I perfectly appreciate that the officers might not be able to foresee precisely when the 1^st Accused might be arrested but the Narcotics Bureau officers clearly had the information and means to apply for an extension of the existing warrant available to them.

37.However, the fact that the officers of the Narcotics Bureau might have been in a position whereby the obtaining of a search warrant under section 52(1E) was reasonably practicable and would thus have meant that entry, search and seizure under section 52(1)(e) never arose in those circumstances is not to the point.  Counsel for the 1^st Accused contends that in determining whether or not the obtaining of a warrant under section 52(1E) was reasonably practicable prior to the entry, search and seizure of the Hennessy Road premises regard must be taken to the state of knowledge of the whole of the Police Force.  I disagree.  By the time Detective Senior Inspector Lee and the Mong Kok SDS team learned of the “hideouts” of the 1^st Accused and, for that matter, the existence of the warrant which had been granted on 15 November 2015, it would not have been reasonably practicable for them, had they appreciated the staleness of the warrant to remedy this by getting another warrant, and, in particular, one under section 52(1E).

38.In my judgement, the same is true in relation to the entry into the Canal Road West premises.  This was the 2^nd of the “hideouts” revealed to Detective Senior Inspector Lee by the Narcotics Bureau once they contacted him upon learning of the arrest of the 1^st Accused.  Understandably given the circumstances, they did not get to that 2^nd premises until something of the order of 2 am the next day.  Again, the practicability of finding a magistrate let alone obtaining a search warrant in sufficient time in those circumstances was pretty close to zero.  True it is that the Narcotics Bureau had learned of a possibility that there was a connection between the 1^st Accused and the Canal Road West premises 1 or 2 days prior to the arrest of the 1^st Accused.  Although the issue was not directly addressed in evidence I think it is safe to proceed upon the basis that had officers of the Narcotics Bureau applied to a magistrate for a search warrant at that time that it is likely to have been granted.  However, Detective Senior Inspector Lee was not to know that and he was faced with searching premises of a suspected drug trafficker at about 2 am.  There is an additional dimension in relation to the search of the Canal Road West premises in that Detective Senior Inspector Lee was informed by Chief Inspector Chau of the belief of Narcotics Bureau that in respect of these premises there was an accomplice at the premises.  Obviously, this carried with it the risk that the accomplice might on the approach of the police be disposed to take steps to get rid of such drugs as there might have been at the premises.  In my judgement, faced with the circumstances he was faced with having learned of the Canal Road West premises I think that Detective Senior Inspector Lee and his Mong Kok SDS team were permitted by section 52(1)(e) of the Dangerous Drugs Ordinance to enter those premises, search them and seize that which was there to be seized upon the basis that it was not reasonably practicable to obtain a warrant under section 52(1E).

39.It follows that the searches at both the Hennessy Road premises and the Canal Road West premises was lawful.  It follows from that that it would be appropriate to admit into evidence the product of those searches.  However, in the event that I was wrong about the approach to the application of section 52(1)(e) as a basis for permitting a warrantless search of these two premises, there is, as Counsel contended, a further basis for consideration as to whether such evidence ought to be excluded.

A discretion to admit evidence obtained in breach of constitutional guarantees

40.Prior to the advent of the human rights guarantees under the Bill of Rights and the Basic Law, common law as it applied in Hong Kong provided that for evidence such as that which is sought to be excluded in this case, the critical issue was relevance as opposed to whether or not the evidence had been obtained lawfully or otherwise.  In Kuruma, Son of Kaniu v R, Lord Goddard held:[15]

“ The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained.”

The same principle may be derived from the House of Lords decision in R v Sang.[16]  Such an approach was consistently applied in Hong Kong and examples include AG v Ting Shui‑ching[17] (product of an illegal search in relation to an offence under the Gambling Ordinance, Cap 148) and AG v Yu Wan‑ying.[18]  AG v Yu Wan‑ying is pertinent because the officer in question was obviously acting under the earlier iteration of section 52(1)(e) and the search was held to be illegal because the officer did not hold the belief required under the section.  Duffy J held, applying R v Sang (above), that this did not affect the admissibility of the drugs seized by that officer.  There were then (as now) a discretionary bases for exclusion not presently relevant.  A change in the approach to admissibility following the coming into force of the Bill of Rights was foreshadowed in R v Yu Yem‑kin (above).

41.The issue of admissibility of evidence obtained in breach of guarantees under the Basic Law was considered in HKSAR v Chan Kau Tai.[19]  In that case, the Court of Appeal was considering evidence obtained in breach of privacy rights under the Basic Law.  It is pertinent to note that the evidence was obtained in the workplace of the accused and with the permission of the occupier of those premises (the Hong Kong government).  The Court (Ma CJHC (as he then was), Woo VP & Tang JA (as he then was)) held that where evidence was obtained in breach of constitutional rights, a Court had a discretion as to whether or not to admit that evidence.  Ma CJHC held:[20]

“ First, account must of course be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR. Secondly, any breach as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach: the court still retains a discretion to admit or exclude the evidence. Thirdly, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.”

42.The issue was also considered by the Court of Final Appeal in HKSAR v Muhammad Riaz Khan.[21]  In that case, the complaint on appeal was that the privacy rights of the appellant had been breached and that it followed from that that the court of trial ought to have excluded the evidence.  The Court of Final Appeal held, following HKSAR v Chan Kau Tai (above):[22]

“ Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned (iii) appears unlikely to encourage any future breaches of that, those or other rights. The risk‑assessment called for under the third element will always be made by the courts, vigilantly of course, in the light of their up‑to‑date experience. Thus is achieved, consistently with the constitution, a proper balance between the interests of individual defendants and those of society as a whole. It cannot have been the framers’ intention — and is not the constitution’s effect — to stand in the way of such of balance being struck. Just as rationality and proportionality can justify an impact on a non‑absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of a constitutional right. Under the test stated above, the discretion concerned is rational and proportionate. The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.”

43.The constitutional right at stake in the instant case is the inviolability of a person’s home or other premises.  The issue here is not simply privacy rights.  I have attempted to outline the importance of that right in earlier passages of this judgment.  It is a right which is not absolute and an intrusion on such rights which is arbitrary or not lawful should be viewed with seriousness.  The authorities cited above clearly support the proposition that in granting a search warrant which would render lawful an intrusion into the rights guaranteed under Article 29 of the Basic Law must take into account that the grant of such a warrant would be such an intrusion.  The warrantless search formerly permitted under section 52(1)(e) has now been narrowed so as to permit this if, and only if, the obtaining of a warrant under section 52(1E) is not reasonably practicable.  That too underlines importance that the legislature accords to the rights of the nature of those guaranteed under Article 29.  The respect due to this right is, in my view, of the utmost importance.  Nevertheless, in the specific circumstancesof this case it seems to me that the reception into evidence of the product of the searches of both premises is conducive to a fair trial and most assuredly would not place in jeopardy a fair trial.  The evidence is both important and cogent and would, for all practical purposes bring to an end the trial of Counts 2 and 3 on the indictment.[23]  Speaking generally and applying the proposition specifically to this set of circumstances, the attempt to fight against the unlawful trafficking of dangerous drugs is a matter of the highest importance.  In this case, the product of the searches reveals a very serious case.  Although it is inappropriate at this stage to start looking at the quantum of any sentence that the accused might receive on conviction for the 2^nd and 3^rd counts on the indictment and, in particular, the 3^rd count, such a sentence would be very substantial and would reflect the serious view that the community of Hong Kong takes with respect to the unlawful trafficking of substantial quantities of dangerous drugs — particularly of the kind of drugs involved here.  On any view, this is a serious case.  In my opinion, had I been of the view that the search of the 2 premises had been unlawful and not justified by section 52(1)(e) of the Dangerous Drugs Ordinance, I would not have hesitated to hold that the breach in the specific circumstances of this case is anything other than reconcilable withthe respect due to the right or rights concerned.

44.The final issue arising from HKSAR ‍v ‍Muhammad Riaz Khan (above) that needs to be considered in this context is whether a ‍ruling in favour of the prosecution appears unlikely to encourage any future breaches of the rights at issue.  In my ‍judgement, the unique circumstances of this case, where one ‍arm of the police (the Mong Kok SDS team) was doing its job in an ‍apparently perfectly appropriate and professional way[24] and unbeknownst to the Mong Kok SDS team another arm of the police (the Narcotics Bureau) was doing an apparently perfectly appropriate and professional job in terms of the detection of crime but, as I have held, fell down in relation to how it dealt with search warrants and unintentionally left the Mong Kok SDS team in a position where the obtaining of a search warrant under section 52(1E) was not reasonably practicable, I think that this alone would demonstrate that such ruling of this Court in the present circumstances would be unlikely to encourage any future breaches of this kind.  I hasten to add in this context that the officers of the Narcotics Bureau in not applying for a fresh warrant or applying to renew the existing warrant were not acting in any form of bad faith.  They simply got the law wrong.  Further, I would be extremely surprised if the law enforcement agencies have not reviewed their practices in the light of the decision in Keen Lloyd & Ors v Commissioner of Customs and Excise & Department of Justice (above) and there are in place practices and procedures to minimise the risk of future breaches of the rights involved in this case on the basis of a stale warrant.

CONCLUSION

45.For these reasons, I order that the product of the searches of both the Hennessy Road and Canal Road West premises is admissible against the 1^st Accused.  While parties to these proceedings should be permitted to see these reasons for my decision without delay, I think it is inappropriate and potentially not conducive to a fair trial for there to be any publicity which refers to the degree to which the police (in this context, I refer to the police as a whole) considered the 1^st Accused to be a target for their interest in connection with trafficking in dangerous drugs.  Thus, while I will provide the reasons for my decision to the parties, I direct that the reasons should not otherwise be published until the conclusion of the trial or further order.

Mr Polson, Ian H., Counsel on fiat of Department of Justice, for HKSAR

Mr McNamara, John Patick, instructed by Morley Chow Seto assigned by DLA for the 1^st Accused

Ms SEE, Sabrina instructed by John M Pickavant & Co, assigned by DLA for the 2^nd Accused