HKSAR v. Yu Lik Wai William and Another
Read the full judgment text of CACC 237/2015 on BabelCite. This Court of Appeal judgment was delivered on 1 February 2019.
1. The applicants were tried in the District Court on a Charge Sheet containing three charges. The first charge was a joint charge of conspiracy for an agent to solicit an advantage, contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201 and section 159A of the Crimes Ordinance, Cap 200 (Charge 1). The second charge, also a joint charge, was for dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of
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CACC 237/2015 [2019] HKCA 135 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 237 OF 2015 (ON APPEAL FROM DCCC 325/2014) ------------------------
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___________________ J U D G M E N T ___________________ Hon McWalters JA (giving the Judgment of the court): A. Introduction 1.The applicants were tried in the District Court on a Charge Sheet containing three charges. The first charge was a joint charge of conspiracy for an agent to solicit an advantage, contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201 and section 159A of the Crimes Ordinance, Cap 200 (Charge 1). The second charge, also a joint charge, was for dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 (Charge 2). The third charge was against the 1st applicant alone and charged him with attempted fraud, contrary to section 16A of the Theft Ordinance, Cap 210 and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 3). 2.The applicants pleaded not guilty to all the charges that they faced. On 30 June 2015, after a trial before District Judge CP Pang (“the judge”), the applicants were convicted of Charges 1 and 2 while the 1st applicant was acquitted of Charge 3. On 2 July 2015, the 1st applicant was sentenced to a total period of 2 years and 6 months’ imprisonment and the 2nd applicant was sentenced to a total period of 2 years and 3 months’ imprisonment. 3.The applicants subsequently applied for leave to appeal against their convictions and these applications were heard by Lunn VP on 26 and 29 August 2016, and judgment refusing leave to both applicants was handed down on 30 September 2016. On 12 October 2016, the 2nd applicant filed a Notice of Renewal of Application to renew his application for leave to appeal (Form XIII). On 9 December 2016, the 1st applicant also filed a Form XIII, but by then was out of time. His solicitor filed an affirmation on 12 December 2016 and explained that the delay was caused by his inadvertence in paying attention to the time limit in filing a Form XIII after the handing down of judgment by Lunn VP and was not the fault of the 1st applicant. Effectively, it amounts to neglect by his solicitor with no actual fault by the 1st applicant. We accept the explanation. That being so we grant the 1st applicant the extension of time that he needs to renew his application for leave to appeal his conviction. 4.At the hearing on 26 September 2017, we raised five questions concerning the operation and construction of section 61 of the Interception of Communications and Surveillance Ordinance, Cap 589 (“ICSO”).[1] In order that these questions could be properly addressed, the case was adjourned for the parties to file further written submissions. 5.At the subsequent hearing of the application on 14 and 15 August 2018 we reserved our judgment. This is our judgment. B. The trial below B.1 The prosecution case 6.As the issues in the appeal are purely legal ones we shall set out only briefly the facts underlying the charges. In a nutshell the prosecution concerned a secret commission solicited by the applicants from the prospective operator of a restaurant in a hotel the 1st applicant was employed to manage. The investigation which led to this prosecution was very much a pro-active, intelligence-led investigation with the prosecution evidence coming into existence as a result of an Independent Commission Against Corruption (“ICAC”) undercover investigation that flowed from information provided by a paid informant who was not called to testify and who at trial was referred to as X. 7.In the undercover operation three ICAC officers posed as middlemen and investors interested in the operation of a restaurant of the Gloucester Hotel (“the Hotel”) in Wanchai. The Hotel building was owned by Wideland International Limited (“Wideland”) and Wideland was owned by Mr Lai Wing To (“PW1”) and his wife. 8.Mr Chung Siu Pang (“PW2”) was interested in the project and he set up two companies, namely, Million Success Management Limited (“MS”) and Big Faith Management Limited (“BF”) jointly with the 1st applicant. Both PW2 and the 1st applicant were appointed as directors of the companies. On 12 April 2012, PW1, representing Wideland, granted BF a lease for a term of 20 years which commenced on 1 April 2012. The 1st applicant signed on BF’s behalf. 9.MS was responsible for the operation and management of the Hotel and the 1st applicant was appointed as the Chairman and CEO of the Hotel, receiving from MS a monthly payment of HK$50,000, which was later reduced to HK$30,000. PW2 was responsible for funding the project and, with other investors, injected monies into it. At trial, there was no dispute that the 1st applicant was an agent of MS and BF at all material times. 10.The 2nd applicant was a friend of the 1st applicant and assisted him to look for interested parties to operate a restaurant on the ground floor and first floor of the Hotel. An undercover officer of the ICAC, codenamed Ah Chi, posed as a middleman and was introduced to the applicants by X. Other undercover ICAC officers, codenamed Ray and Tony, were later introduced to the applicants as investors. 11.A total of eight meetings were conducted between the undercover ICAC officers and the applicants. Five of those meetings were covertly recorded by the undercover ICAC officers pursuant to prescribed authorizations granted under the provisions of the ICSO. 12.The ICSO creates two different types of authorization for two different types of covert surveillance to be issued. The two different types of covert surveillance are defined in the ICSO as “Type 1 surveillance” and “Type 2 surveillance”. The authorization for the latter is issued by a senior officer of a law enforcement agency and is known as an executive authorization and the authorization for the former is issued by a judge and is known as a judge’s authorization. Applications for a judge’s authorization must be supported by an affidavit whereas an application for an executive authorization need only be supported by a statement in writing. 13.By section 2(3) of the ICSO “any covert surveillance which is Type 2 surveillance under the definition of ‘Type 2 surveillance’ in subsection (1) is regarded as Type 1 surveillance if it is likely that any information which may be subject to legal professional privilege will be obtained by carrying it out.” 14.In respect of the five meetings, three executive authorizations (Type 2) and two judge’s authorizations (Type 1) were issued on the basis of, respectively, three statements in writing and two affirmations made and affirmed by ICAC officers. Redacted versions of these documents were disclosed to the applicants. 15.A summary of the eight meetings is as follows:
16.The prosecution’s allegation in respect of Charge 1 was that the applicants solicited this payment of HK$1.08 million, later reduced to HK$0.98 million, as a secret commission to be paid by the selected caterer in return for awarding him the contract to operate the restaurant at the Hotel. PW2 was not aware of the applicants’ solicitation, while MS and BF never granted any permission to the 1st applicant to accept a commission from investors. B.2. Disclosure and admissibility 17.As is readily apparent, the prosecution case relied very heavily on the evidence of the undercover officers and of the covert recordings. At trial, both applicants sought disclosure of the redacted parts of the statements in writing and affirmations that had been used to obtain the issue of the executive and judge’s authorisations. They also objected to the admissibility of the evidence of the meetings between them and the ICAC undercover officers on the grounds that this evidence had been obtained by way of entrapment and they would be deprived of a fair trial if this unfairly obtained evidence was admitted. Furthermore, their right to privacy and their right against self-incrimination were breached. Adopting the alternative procedure, the judge declined to order the disclosure of the materials sought, ruled the evidence admissible and refused to exercise his discretion to exclude it. B.2.1 The judge’s ruling on disclosure 18.Prior to the opening of the prosecution case, Ms Cindy Lee, counsel for the 2nd applicant, applied to the judge for an order directing the prosecution to disclose the redacted parts of the three statements in writing and the two affirmations. Mr Graham Harris SC and Ms Kitty Lau, counsel for the 1st applicant, supported this application. The prosecution opposed the application for the redacted parts to be disclosed, asserting that section 61(2) of the ICSO applied to those parts. 19.Because of the importance of Section 61 of the ICSO in this appeal it is necessary to set it out in full.
20.Mr Bernard Yuen, of counsel, prosecuting on fiat, applied for an ex parte hearing under section 61(4) so that he could disclose the protected product to the court. The judge, after hearing from the parties, ordered that an ex parte hearing pursuant to section 61(4) would take place.[2] In preparation for this hearing the judge gave the following direction:
21.This ex parte hearing took place on 5 November 2014. Ms Alice Chan, Senior Assistant Director of Public Prosecutions, and Ms Joey Ma, Acting Senior Public Prosecutor, appeared with Mr Yuen for the prosecution. The judge’s notes of that hearing are as follows:
The court then adjourned to 7 November 2014 to resume the inter partes proceedings. 22.At that resumed hearing Mr Harris sought to resolve the disclosure issue by asking for an assurance from the prosecution that the redacted parts “did not touch upon the two defendants in the trial.”[5] The case was adjourned to 28 November 2014 at which time Mr Harris indicated that the prosecution could not give the assurance he had sought. 23.On 28 November 2014 it became clear from a letter written by Ms Chan on behalf of the prosecution that disclosure was not being refused on the basis of just section 61(2) but rather reading section 61(2) in conjunction with section 61(4). A view had been reached of the redacted material that it did not fall within the test for disclosure contained in section 61(4) of being information that “might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence.” 24.In view of the stance adopted by the prosecution, Mr Harris complained that there had not been a proper performance by the prosecution of its disclosure obligation but otherwise did not press the matter. Ms Lee, however, did wish to pursue disclosure of the redacted parts and to mount an argument that the test for disclosure should be the common law test as set out in the judgment of the Court of Final Appeal in HKSAR v Lee Ming Tee & anor[6]. Ms Lee also wished the judge to inspect the redacted parts and apply the disclosure test to them in a way that is similar to the determination of a claim of public interest immunity. Mr Yuen opposed such a hearing and submitted that under section 61(2) the prosecution should not be required to provide the materials to the court. 25.The case was then adjourned to 16 January 2015 at which time further submissions were made by the parties on the operation of section 61 of the ICSO. Ms Lee indicated that she took no issue with the constitutionality of section 61(7) which prohibits the court from making any order that would breach section 61(2). However, Mr Harris did submit that section 61(7) did not sit comfortably with section 61(5) and that it should not be construed as preventing the court from disclosing the redacted parts to the defence if the judge, after himself examining the redacted parts, concluded that disclosure to the defence was necessary in order to secure a fair trial. 26.Mr Yuen, for the prosecution, emphasized that he was making no concession that the redacted parts were relevant but rather was basing his refusal to make disclosure on the statutory regime contained in section 61. Mr Yuen reminded the court that under that regime the test for disclosure was not the common law test, which is based on a concept of relevance to an issue in the trial, but the statutory test laid down in section 61(4). However, upon being pressed by the judge Mr Yuen stated:
27.There then followed an exchange between Mr Yuen and the judge which brought sharply into focus the question of whether the Lee Ming Tee common law test of disclosure is wider than the statutory test contained in section 61(4). Nevertheless, at the end of the exchange the judge was left with the impression that the prosecution was adopting an equivocal position. The judge himself was of the view that the Lee Ming Tee test and the section 61(4) test were the same. The submissions ended with the following exchange:
28.The judge gave his ruling on the application later that day. He refused the application for disclosure and refused the application for him to hold an ex parte hearing under section 61(4) and inspect the redacted material. He said he would give his reasons for his rulings at a later date and this he did in his Reasons for Verdict. 29.In the reasons for his ruling, as set out in his Reasons for Verdict, the judge started from the position that:
30.In considering whether the prosecution’s decision not to disclose was reviewable by the court, he concluded:
31.The judge went on to consider section 61. He noted the complaints of Mr Harris and accepted that section 61 “is indeed a piece of draconian legislation.”[11] Nevertheless, he concluded that a judge was not powerless in ensuring that a defendant would receive a fair trial and noted that, if all else failed, the judge could order a stay of proceedings. 32.The judge then turned to section 61(2) and said that the word “party” in that subsection did not include the judge. He said:
33.The judge then turned to the question of whether the prosecution had properly discharged its disclosure obligation and whether he should inspect the redacted parts of the documents. He thought the disclosure test at common law was the same as the test in section 61(4) but made no formal determination on this point. He said that he had “no reason to doubt the Prosecution’s assessment on the relevance of the protected information to the Prosecution case.”[13] 34.As to the possible relevance of the redacted material to the defence case he said he adopted the approach that it was for the defence to show that there was a reasonable possibility of relevance and that had not been done. He said:
B.2.2 The judge’s ruling on admissibility 35.Objection was taken at trial on behalf of both applicants to the admissibility not only of the covert audio recordings of the five meetings but also of the other meetings and all other contacts between the undercover ICAC officers and the applicants. The grounds for this objection were that the evidence was obtained through entrapment, a fair trial could not take place because the evidence had been obtained unfairly and there had been a breach of the applicants’ right to privacy and right against self‑incrimination[15]. The judge ruled the evidence admissible and declined to exercise his discretion to exclude it. He, again, gave his reasons for this ruling in his Reasons for Verdict. 36.He said there was no entrapment as:
37.On the complaint that the evidence had been unfairly obtained, the judge said that the law recognised that law enforcement agencies must sometimes employ deceit and trickery in the investigation of serious crime. He said that it will very often be a question of proportionality involving a consideration of the nature and seriousness of the suspected crime. Corruption offences are serious crimes and the public interest in combatting them is high. He concluded:
38.In respect of the submission that the undercover operation breached the applicants’ right against self-incrimination he said that before the right of silence of a suspect can be breached, something must take place which prompts the suspect to talk and that generally interrogation is not allowed. The conversation may take on the character of an interrogation where the natural flow of the conversation is interrupted by the undercover officer persistently directing the conversation back to a discussion of incriminating matters. Directing himself in this way the judge concluded:
39.Finally, the judge addressed the applicants’ argument that there had been a breach of their right to privacy. The judge noted that Article 30 of the Hong Kong Basic Law (“the Basic Law”) allowed an exception, namely that “relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.” He said that the ICSO provides “the machinery and framework for striking the balance of public interest and interest of individuals.”[19] Here, there was compliance with the provisions of the ICSO and so any infringement of the applicants’ right to privacy “was in accordance with legal procedures to meet the needs of investigation into serious crimes.”[20] 40.As the applicants’ counsel had also asked the judge to exercise his residual discretion to exclude the evidence if he found it admissible, the judge then addressed this submission. In terms of the law he directed himself in accordance with the legal principles set out in the judgment of the Court of Final Appeal in HKSAR v Muhammad Riaz Khan[21]. Applying those principles to the facts of this case he found that there was no unfairness and declined to exercise his discretion to exclude the evidence. B.3. The defence case 41.The 1st applicant elected to give evidence at trial. His defence was that he honestly believed that he had lawful authority or reasonable excuse, in the form of permission, to receive the money that had been solicited. He said he understood from PW2 that he could deal with the restaurant premises in his way so long as it was to the benefit of the Hotel. The 1st applicant asked the 2nd applicant to look for investors to operate the restaurant who should invest a total sum of HK$2.2 million, including an operation cost of about HK$1.6 million or HK$1.7 million and a sum of HK$0.5 million or HK$0.6 million as a “consultation fee”. The 1st applicant claimed that he was entitled to the consultation fee for his work done for the design, recruitment, quality control of renovation works and his management of the operation of the restaurant. He agreed that he did not inform PW2 of his negotiations with the undercover ICAC officers as he believed that PW2 would not have objected to it. 42.The 2nd applicant also elected to give evidence at trial. He claimed that he acted on the instructions of the 1st applicant and knew nothing about PW2’s interest in the project. He believed that the 1st applicant was in charge and had the final say in everything in respect of the project. The 2nd applicant claimed he honestly believed that the 1st applicant had the authority to receive the HK$1.08 million from the potential investors. B.4 Verdict 43.The judge identified the issue in the case as being whether the applicants honestly believed that they were entitled to do what they were doing. He said that the court had to consider what their beliefs were and whether these beliefs in the circumstances of the case amounted to the defence of lawful authority or reasonable excuse. 44.In terms of their evidence the judge found both applicants not to be credible as witnesses and rejected their evidence. 45.Regarding the 1st applicant, the judge found that he owed a fiduciary duty to the two companies and the investors in the project and that he needed permission to receive the consultation fee. The judge further found that the 1st applicant did not seek prior permission, made no disclosure of the consultation fee to PW2 and did not believe that permission to receive the money would be given. On the basis of these findings the judge concluded that the 1st applicant had no lawful authority or reasonable excuse to solicit the advantage[22]. 46.In regard to the 2nd applicant, the judge said the only reasonable and irresistible inference was that the 2nd applicant knew the 1st applicant had to account for and needed to get permission to solicit and accept the HK$1.08 million and that the 1st applicant had no authority to solicit and receive the money[23]. 47.In relation to Charge 2, the judge found that both applicants knew that the envelope contained cash of HK$250,000 when the undercover ICAC officers handed it over. Both applicants discussed the way a receipt should be prepared and the judge concluded that they were receiving the money in a joint enterprise knowing that it was being given as a bribe. Receiving the money was a dealing with it and so all the elements of Charge 2 were proven. C. The Grounds of Appeal C.1. The 1st applicant’s Amended Perfected Grounds of Appeal 48.The 1st applicant relies on two grounds of appeal by reason of which he says he did not receive a fair trial. 49.In his first ground of appeal he complains that the judge erred in refusing to order disclosure of the redacted parts of the three statements in writing and two affirmations which grounded the three Type 2 authorizations and two Type 1 authorizations which enabled the covert surveillance to take place. 50.The second ground of appeal asserts that the procedure set out in section 61(4) of the ICSO, and the judge’s consequent refusal to grant the disclosure application, contradicts Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383[24] (“HKBORO”), and disregards the common law duty of disclosure owed by the prosecution. 51.In support of these grounds Mr Richard Donald, counsel for the 1st applicantsubmitted, in his written submission, that it is clear from the Court of Final Appeal’s judgment in Lee Ming Tee, that the legal principles relating to the prosecution’s obligation of disclosure include the following:
52.Therefore, Mr Donald submitted, where section 61 of the ICSO prevents the disclosure of potentially useful material to defendants in criminal proceedings, the provision itself is a derogation of the right to full disclosure under the common law and is in conflict with the Basic Law and Articles 10 and 11 of the HKBORO. He argued that it does not satisfy the proportionality test and represents an unconstitutional restriction on the principles of disclosure and the 1st applicant’s right to a fair trial. 53.He noted that the constitutionality of section 61 of the ICSO was considered by Wright J in the case of HKSAR v Ying Jim Ming Jimmy[25], a decision relied on by the respondent. He accepted that the prohibition on disclosure under section 61 may satisfy the rationality criteria as propounded by Wright J, but argued that it does not satisfy the proportionality criteria. He submitted that Wright J’s analysis of the proportionality of the provision in Ying Jim Ming Jimmy did not address all the problems arising out of the prohibition. 54.In ruling that the provision was proportional Wright J relied on the fact that neither party is permitted under section 61 to use the restricted telecommunications interception evidence at trial. Mr Donald argued that this does not make the blanket prohibition proportional for, as happened in the present case, the telecommunications interception evidence can still be used by the investigatory body to obtain warrants authorizing covert surveillance, which in turn leads to admissible evidence being obtained. Yet, the subject of the covert surveillance is denied the opportunity to use the same material to uncover evidence which may be helpful to the defence. Such an outright prohibition on disclosure to the defence exceeds what is necessary and is neither proportional nor fair. A restriction on collateral use, he argued, would be consistent with what was said by the Court of Final Appeal in Lee Ming Tee and would be proportional. 55.Mr Donald also argued that Wright J’s reliance in Ying Jim Ming Jimmy on the fact that a defendant who had been the subject of covert surveillance “would be aware of its contents” did not address the issue of such a defendant not knowing what information, derived from telephone interception, was used to obtain the warrants authorizing the covert surveillance. 56.Mr Donald submitted that neither of the two matters on which Wright J relied was sufficient to satisfy the proportionality criteria for derogating the right to disclosure and did not address the potential harm that was created by denying a defendant access to potentially useful, albeit, inadmissible information. 57.Mr Donald also took issue with the way section 61 left it to the investigatory body to assess the relevance of the restricted telecommunications interception material before deciding whether or not to even reveal the material to the prosecution and the court, which he said only exacerbated the problem. 58.Based on these submissions, Mr Donald asserted that the judge’s refusal to order the disclosure of the redacted materials resulted in a derogation of the 1st applicant’s right to a fair trial as guaranteed under the Basic Law and the HKBORO. 59.As the 2nd applicant relies on the same grounds of appeal, Mr Donald did not advance any oral submissions in support of his grounds of appeal and was content to adopt the oral submissions of Mr Andrew Bruce SC who, together with Mr Phillip Ross, appeared for the 2ndapplicant. C.2. The 2nd applicant’s Perfected Grounds of Appeal 60.The 2nd applicant relies on three grounds of appeal. His first ground of appeal asserts that the covertly recorded audio recordings of three meetings, namely those on 17 and 19 December 2012 (the 3rd and 4th meetings), and 16 January 2013 (the 5th meeting), were obtained contrary to Article 14(1) of the HKBORO[26] because:
61.The second ground of appeal claims that there was a breach of Article 10 of the HKBORO as a consequence of the judge refusing to order the disclosure of the non-redacted copies of the statements in writing and affirmations. This breach occurred when:
62.The third ground of appeal complains that the evidence of the undercover meetings that took place after the third meeting should have been excluded as unfair since there was sufficient evidence after the 3rd meeting to charge the 2nd applicant and no caution was administered to the 2nd applicantreminding him of his right to remain silent. Further, the evidence ought to have been excluded as having been unfairly obtained in that one of the ICAC officers, Ah Chi and the person described at trial as X, a person well known to the 2nd applicant, had ingratiated themselves with the 2nd applicant, so as to cause him to surrender his right to silence. 63.In respect of the applicant’s first ground of appeal Mr Bruce emphasized the importance of the right of privacy and the expectation that persons have that their private conversations will not be the subject of intrusive surveillance techniques by government officials. He referred to the judgment of Cheung JA in HKSAR v Lam Hon Kwok Popy and Anor[27] at paragraph 14 which he said sets out the principle on which he relies. In this paragraph Cheung JA quoted with approval the distinction drawn by La Forest J of the Supreme Court of Canada in R v Duarte[28] between two risks. One risk is that in a conversation with another person, that person might disclose to others what had been discussed and the other risk is that law enforcement might, by electronic surveillance techniques, acquire a permanent electronic recording of the words spoken.[29] 64.He said that his central contention is that it is contrary to the right of privacy, and therefore unconstitutional, for there not to be a judicial authorization for covert surveillance. He submitted that executive authorizations for covert surveillance are unconstitutional as a law enforcement officer cannot be seen to act independently and cannot bring a sufficiently impartial approach to the determination of the prerequisite conditions for the issue of the authorization. He argued that someone within the same law enforcement agency who is tasked with issuing an executive authorization for covert surveillance will have the same aims, goals and interests of his colleague who is applying to him to be granted the right to conduct covert surveillance. The consequence of his submission is that any covert recordings obtained pursuant to such an authorization are obtained unlawfully since Article 17 of the ICCPR, when read with Article 39 of the Basic Law, renders s 15(1)(a) of the ICSO (the power of an authorizing officer of a law enforcement agency to issue an executive authorization) unconstitutional. 65.Mr Bruce contended that “the basic requirement for law enforcement authorities to observe so that reasonable, and so legitimate restrictions, are made on the right to privacy”[30] is that there be prior authorization of the privacy breach by a judge or a person acting judicially. In support of this argument Mr Bruce relied on the Canadian Supreme Court case of Hunter v Southam Inc. (1984) 11 DLR (4th) 641 where it was said:
66.Mr Bruce submitted that a person “capable of acting judicially” means a person independent of the body seeking access to the power and requires impartiality. 67.He relied on the comment in Hunter’s case, that:
68.He submitted that, in terms of human rights law, this is a proportionality issue. No issue is taken with there being a legitimate aim or with there being a rational connection with this aim. The only issue is with necessity. 69.He also submitted that there is no meaningful distinction between a search warrant and a covert surveillance authorization as there is no realistic distinction between the levels of intrusiveness and the degrees of privacy. 70.Mr Bruce argued that the default position should be that an authorization is issued by a judicial officer, or a person capable of acting judicially, with a provision for the urgent issue of an authorization by a law enforcement officer, as is allowed under the ICSO in respect of telephone interception warrants. 71.Mr Bruce also relied on judgments of the European Court of Human Rights (“ECtHR”). One such judgment was Klass v Federal Republic of Germany[31], in which it was said in respect of surveillance conducted by the executive that:
72.Mr Bruce further submitted that, although there is no decision interpreting the ICCPR right to privacy as it applies to covert surveillance, the UN Human Rights Committee had, in monitoring ICCPR members’ compliance reports, commented unfavourably that for at least five member states, interception or surveillance powers contained no requirement for the exercise of the powers to be conditional on judicial approval, or at least approval by a person independent of the executive. 73.Mr Bruce also argued that the supervisory role of the Commissioner on Interception of Communications and Surveillance appointed under section 39 of the ICSO (“the Commissioner”) is limited in its effectiveness as a check and balance on the conduct of law enforcement officers as the Commissioner is not authorized under the ICSO to inspect and listen to the products of covert surveillance[32]. Even though the ICSO was amended on 24 June 2016 to enable the Commissioner to require the production of both interception and surveillance products, in the present case the recordings all occurred before this date. 74.Mr Bruce argued that although the ICSO provides for judicial supervision in the form of the Commissioner, his powers are not such as to compensate for the lack of judicial supervision at the authorization stage of the process. He has no role in determining whether to proceed or when to stop. All he can do is compile a report which will be tabled before the Legislative Council. Because of the limitations on the role of the Commissioner it is important that the authorizations be judicially issued. Mr Bruce submitted that the position of the Hong Kong Commissioner is vastly different from his counterpart in the United Kingdom. 75.Furthermore, under the ICSO the reason for issuing a judicial authorization instead of an executive authorization is because “it is likely that any information which may be subject to legal professional privilege will be obtained.” However, as there is no distinction in the ICSO as to what information might be collected under either authorization, Mr Bruce argued that there is no justification for lessening the restrictions on issuing an executive authorization by not requiring the authorization to be supported by an affirmation. 76.In support of the 2nd applicant’s second ground of appeal Mr Bruce submitted that the judge erred in following the judgment of Wright J in Ying Jim Ming, Jimmy in which he decided that section 61 of the ICSO was not in conflict with the Basic Law or with Article 10 of the HKBORO. Mr Bruce contended that Wright J erred in relying on the judgment of the majority of the court in Jasper v United Kingdom[33]. In that case, unlike the applicant’s case, the judge had inspected the material which had not been disclosed. Furthermore, section 61 of the ICSO was not identical to section 6 of the UK’s Interception of Communications Act 1985 as section 6 did not prohibit the trial judge from inspecting the edited materials of his own volition. 77.He argued, like Mr Donald, that a total prohibition on disclosure was disproportionate and that there were alternatives available, such as the provision of edited material or the use of a special advocate, which could be employed. 78.As section 61 of the ICSO provides detailed procedures whose effect was to prohibit disclosure to a trial judge, Mr Bruce said it serves as a code for disclosing interception material to the trial judge and in doing so abrogates the common law power of disclosure. In abrogating the common law duty of disclosure, section 61 removes the prosecutor as gatekeeper of the disclosure process. It is not he who decides whether “the information” satisfies the disclosure test; rather it is the law enforcement agency and if it concludes that the test is not satisfied then the prosecutor will not be informed of the existence of the information. The effect of section 61 is to transform the role of the prosecutor from that of a Minister of Justice to a mere conduit for the law enforcement agency. 79.In respect of section 61(5), Mr Bruce submitted that it does not provide the judge with any real power. The judge cannot order disclosure of the information because of section 61(7) nor can he order a prosecutor to do something in relation to how he conducts his prosecution. 80.To the extent that the court is only granted disclosure of these documents in the limited circumstances set out in section 61(4) of the ICSO, without the court being able itself to decide whether the documents disclose material useful to the defence, the section operates as an indirect and unjustifiable restriction on a defendant in the conduct of his defence and is, therefore, unconstitutional as it gives rise to an unfair trial. 81.Mr Bruce also argued that the judge erred in ruling that it was for the defence to show a reasonable probability of relevance before disclosure could be ordered. He relied on the judgment of the Supreme Court of Canada in Dersch v Canada (Attorney-General)[34], where the court said:
82.Mr Bruce submitted that in order to have a fair trial under Article 14(1) of the ICCPR, or to have adequate facilities for the preparation of a defence under Article 14(3)(b) of the ICCPR, the applicant is not required to put forward a reasonably arguable basis for having the edited material disclosed to him. 83.In respect of the 2nd applicant’s third ground of appeal Mr Bruce contended that under Article 14(3)(g) of the ICCPR an accused has the right “not to be compelled to testify against himself or to confess guilt.” Once the 2nd applicant had mentioned that the payment sought was an “under-the-table” payment, the undercover ICAC officers ought to have revealed their identity and cautioned the 2nd applicant. At that stage, the undercover ICAC officers had sufficient evidence to charge the 2nd applicant in respect of Charge 1, albeit they would have had no evidence to support Charge 2. 84.Mr Bruce argued that by the 3rd meeting, there was sufficient evidence to charge the applicants but the officers persisted with five more meetings to bolster their case. The judge erred in relying on the contents of the 4th and subsequent meetings. 85.Mr Bruce also complained that the judge made no finding in respect of the 2nd applicant’s evidence that the ICAC officers had ingratiated themselves with the applicants. The conduct by X, whom the 2nd applicant treated as a very good friend, in inducing the 2nd applicant to accept the undercover ICAC officer codenamed Ah Chi as trustworthy, had the effect of causing the 2nd applicant to surrender his right to silence and for this reason should have been excluded. 86.Mr Bruce relied on the South Australian Supreme Court judgment in R v Smith Turner & Altintas[35] and the Queensland Court of Appeal case of R v O’Neill[36], where Fitzgerald P in his dissenting judgment said:
C.3 The respondent’s submissions 87.At the hearing of this appeal the respondent was represented by Mr David Perry QC leading Mr Martin Hui SC, Deputy Director of Public Prosecutions, Ms Audrey Parwani, Senior Public Prosecutor and Ms Karen Ng, Public Prosecutor. 88.Before addressing the different grounds of appeal Mr Perry submitted that it is necessary for this court to understand how the ICSO replicates certain policies and features of the United Kingdom’s legislation. He traced the legislative history of the United Kingdom’s telephone interception regime from the Interception of Communications Act 1985 to RIPA. RIPA, he noted, contains in its section 18(7) a provision similar to the ICSO’s section 61(4). However, the ICSO he submitted, is narrower in scope than RIPA and is much more precise and focused in who can access the powers contained in it. 89.Mr Perry went on to demonstrate how both pieces of UK legislation had survived challenges to them in the ECtHR and the English courts. 90.Most recently, in Kennedy v United Kingdom[37], the ECtHR gave RIPA, in Mr Perry’s terms, “a clean bill of health.” In this case, the ECtHR re‑affirmed[38] the principles that any interference with the right to respect for private life had to be “in accordance with the law” in that (i) the impugned measure must have some basis in domestic law; (ii) the domestic law must be compatible with the rule of law and accessible to the person concerned; and (iii) the person affected must be able to foresee the consequences of the domestic law for him. The ECtHR had regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Interception of Communications Commissioner and the review of the Investigatory Powers Tribunal established by the RIPA, and held that the surveillance measures were justified and there had, accordingly, been no violation of Article 8 of the European Convention on Human Rights (“ECHR”). 91.Mr Perry submitted that if these principles were applied to the regime enacted by the ICSO, both in terms of authorization and disclosure, the regime would be found to be constitutionally justified, and that there had not been any infringement of the applicant’s rights to privacy or fair trial. 92.In respect of Canadian human rights jurisprudence Mr Perry submitted that one must be mindful of the difference in both the language and legal context in which the provisions under consideration are found. Mr Perry referred to Lee Ming Tee where the Court of Final Appeal noted that Canadian case law developed in a highly specific context, responding to the peculiar statutory and constitutional needs and values of that jurisdiction. It was Mr Perry’s submission that the Canadian jurisprudence does not reflect the position in the United Kingdom or under the ECHR. 93.Mr Perry emphasized that in addressing the grounds of appeal and in answering the five questions posed by the court it is necessary to have regard to the statutory purpose underlying the legislative scheme of the ICSO as the statutory purpose provides the key to the proper construction and operation of section 61. This requires a consideration not just of section 61 but of the ordinance as a whole. 94.He argued that the primary purpose underlying the ICSO in respect of telephone interception is to maintain secrecy of any interception and this purpose is achieved by prohibiting the introduction of any evidence about the existence or absence of an authorization, thereby preventing the disclosure of the existence or absence of an interception. The intercept could only be used for the purpose of the detection of crime and not as evidence in any court. 95.Mr Perry then turned to various provisions of the ICSO to show how they reflect the dual policy decisions made by government in respect of telephone interception, namely maintaining secrecy of the interception and not making evidential use of the interception product. 96.Grounds 1 and 2 of the 1st applicant’s grounds of appeal and Ground 2 of the 2nd applicant’s grounds of appeal are the applicants’ grounds of appeal which attack the constitutionality of section 61(4) and the impact of the judge’s rejection of the disclosure application on the fairness of the trial. 97.In relation to these grounds, Mr Perry argued that the policies underlying the legislation and how they are advanced through other provisions in the ICSO provide the necessary legislative context and purpose to enable this court to construe section 61. He argued that sections 59 and 61 should be seen as the key sections in the ICSO that implement the policy of secrecy. 98.Section 59 of the ICSO is entitled “Safeguards for protected products” and, in subsection (1)(c)(i), mandates that the protected product “is destroyed as soon as its retention is not necessary for the relevant purpose of the prescribed authorization, ...” Section 59(3)(b)(ii) states that for the purposes of section 59 something is necessary for the relevant purpose of a prescribed authorization:
99.By exempting telecommunications interception product from section 59(3)(b)(ii) the ICSO creates a distinction between that product and the product of covert surveillance in respect of what may be done in relation to them. For telephone interception product the obligation to destroy it in accordance with section 59(1)(c)(i) continues, but the covert surveillance product may be preserved for use in legal proceedings. 100.Section 61 preserves the secrecy of the interception, and of any product acquired from it. Section 61(1), prohibits the evidential use of any telephone interception product. 101.Section 61(2) makes it clear that the fact that interception has taken place and the existence of any product from it shall not have any forensic use by mandating that the particulars of an interception and any product from it “shall not be made available to any party to any proceedings before any court…” 102.Section 61(3), which prohibits the adducing of any evidence or the asking of any question pertaining to telephone interception, supplements section 61(1) and (2) and further advances the policy of secrecy of telephone interception. 103.Section 61(4), Mr Perry submitted, creates an exception to the general prohibition in section 61(2) and has its origins in section 18(7) of RIPA. Mr Perry informed the court that section 18(7) of RIPA was derived from an obiter observation of Lord Mustill in R v Preston[39] when he said that he could not see that there was anything on the face of the Interception of Communications Act 1985 that prevented the law enforcement authority providing to prosecuting counsel or the prosecuting authority any information that might have a bearing on the fairness of the proceedings. 104.Based on Lord Mustill’s observation a practice then developed whereby the investigating authority would brief prosecuting counsel of the existence of information derived from the interception product. This informal non-statutory procedure became known as a “Preston briefing” and it enabled the prosecutor to review his case in the light of what he had been told and to take such steps as be considered necessary to ensure that he did not present his case on an incorrect basis. 105.Section 61(4) relates only to “information obtained pursuant to a relevant prescribed authorization” and only where such information is “continuing to be available to the department concerned”. On the assumption that the department who has sought the telephone interception has complied with section 59(1)(c)(i) then the protected product will no longer be available but those involved in the criminal investigation may have made records of intelligence or information derived from the protected product that they consider useful to their investigation. 106.What section 61(4) does in respect of this information is to provide for a limited form of disclosure within a very tightly drafted regime. Mr Perry argued that the Hong Kong legislature, by enacting section 61, clearly intended to create an exception to the common law duty of disclosure and to create within the ICSO a specific disclosure regime which sought to strike a balance between protecting the secrecy of the investigative process and a defendant’s right to a fair trial. The legislature recognised that there was an inevitable tension between the common law duty of disclosure and the ICSO because of the obligation in the ICSO to destroy telephone interception product. As Mr Perry put it “you cannot disclose what you have already destroyed.” 107.There are two restrictions to section 61(4) disclosure. The first is that it is only “for the purposes of any criminal proceedings” and the second is that the information pass a test of relevancy to those proceedings. The test is expressed as being that the information “might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence.” Mr Perry accepted that it is clear from what the section then requires to be done if this test is satisfied that the question of whether the test is satisfied, is determined by the law enforcement agency. Although, he pointed out, there is nothing in section 61 which would preclude the law enforcement agency from seeking legal advice from the Director of Public Prosecutions on how to determine whether the information satisfies the test. 108.If the law enforcement agency, referred to in the ICSO as “the department”, determines the information does satisfy the test then it:
109.Subsection (5) empowers the judge, upon such disclosure being made to him, to “make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.” But, under subsection (7), the judge is prevented from making any order under subsection (5) that “authorizes or requires anything to be done in contravention of subsections (1), (2) and (3)”. 110.He submitted that:
111.Of this limited power of disclosure Mr Perry submitted:
112.He argued that any wider duty of disclosure would require retention of the protected product and “this would run counter to the obligation to destroy interception products as soon as practicable after it has served its statutory purpose.” Furthermore, sight should not be lost, he submitted, of the obligation imposed by the Secretary for Security on officers of law enforcement agencies to look out for and report any exculpatory materials found in the course of interception operations and to seek legal advice if necessary. This obligation can be found in paragraph 180 of the Code of Practice issued by the Secretary for Security in compliance with section 63 of the ICSO. 113.Mr Perry also referred to the cases of Jasper v United Kingdom and Kennedy v United Kingdom where the ECtHR held that the entitlement to disclosure of relevant evidence was not an absolute right. There were circumstances where it was appropriate to withhold evidence from the defence in the public interest so as to ensure the secrecy of police investigation methods. The court accepted the general principle evolving in the national case law that some discretion must be given to the prosecution to put before the court only those documents which it considers as material on the basis of relevance. The court also accepted that since both the prosecution and defence were prohibited from making any use of the fact of interception the principle of equality of arms was respected. 114.He also relied on the decision of Wright J in Ying Jim Ming Jimmy, where, after considering the cases of Jasper and Preston, Wright J held that section 61 does not conflict with the Basic Law and Article 10 of the HKBORO. 115.In the present case, the prosecution was not seeking to rely on intelligence gathered from intercepts nor the applications for authorization (which were served on the defence as unused material), thus there was no unfairness to the defence. 116.He submitted that the policy of secrecy in respect of telephone interception is not inconsistent with the principle of equality of arms as both sides are prevented from making any evidential use of the telephone intercept product. Nor is the principle of equality of arms infringed, so Mr Perry submitted, by allowing the law enforcement agency to use the telephone intercept product for an intelligence purpose to assist its criminal investigation. This, after all, he pointed out, was the whole purpose of conducting the telephone interception. 117.Also relevant, as providing a further safeguard against the secrecy of interception prejudicing the fairness of a criminal trial, is the provision for the Commissioner whose role is to have supervisory oversight on the operation of the legislation and compliance with its provisions. Mr Perry took the court through the provisions in Part 4 of the ICSO in order to demonstrate that the Commissioner is a person independent of the executive and formerly of high judicial office who is vested with considerable powers to ensure he is able to provide an effective and stringent supervision of the conduct of departments in complying with the ICSO. 118.Mr Perry also submitted that it was up to the applicants to demonstrate how the redacted material was relevant to their defence and as a consequence needed to be disclosed to them. Reliance was placed on the decision of R v GS[40], where the defence had sought disclosure of material placed before the Surveillance Commissioner when seeking approval and renewals of authorizations to conduct intrusive surveillance. The defence argued that this was to enable them to make applications to exclude evidence of covertly made recordings which were authorized. In refusing the application, the court noted:
119.In regard to the 2nd applicant’s first ground of appeal arguing that the lack of independence in obtaining the executive authorizations invalidated them and caused the covert surveillance to be an unlawful breach of the right of privacy, Mr Perry submitted that the Legislature had enacted a two-tier system of authorization, which the ICSO describes as Type 1 and Type 2 authorizations, as it was persuaded that judicial and other safeguards would be sufficient to guarantee the independence of the authorization process and that applications for authorizations would be considered impartially[41]. This was apparent from statements made to the Legislative Council by the Administration. 120.He emphasized that there was a profound distinction between telephone interception and covert surveillance in the impact that each may have on the right to privacy. For example, in an investigation where telephone interception is employed, there could be interception across a range of individuals over a period of months generating huge amounts of material with a high risk of a “mass of collateral intrusion.” Furthermore, the different levels of intrusiveness by which covert surveillance can be conducted is reflected in the distinction drawn by the ICSO between Type 1 surveillance and Type 2 surveillance. 121.This distinction is reflected in the different means by which the powers to conduct telephone interception and covert surveillance are accessed. Mr Perry drew attention to section 7 of the ICSO to emphasize that it is not anyone within the law enforcement agency who is entitled to authorize covert surveillance. It has to be someone who is of equivalent rank to a Senior Superintendent of Police. 122.In respect of the legislature’s use of executive authorizations, Mr Perry said this is a policy choice to reflect the realities of law enforcement and the judicial resources available. The volume of undercover operations taking place on a daily basis makes it impractical to require that each and every piece of covert surveillance involved in them should be judicially authorized. What the legislature did was to recognise this reality and put in place, through the role and duties of the Commissioner, after-the-event supervision. The Commissioner’s duty to enquire into, and report on, the operation of the ICSO acts as a check and balance on the conduct of those involved in applying for and granting authorizations for covert surveillance. 123.Mr Perry also mentioned how, under RIPA, there is a scheme of non-judicial authorizations by senior police officers which had been commented upon by Hugh J in R v Hardy and Anor[42]. In giving the judgment of the English Court of Appeal, he said, at paragraph 48, of the ECHR:
124.Mr Perry emphasised that none of the ECtHR jurisprudence said that there must be judicial authorization. As regards the decision of the ECtHR in Klass, he pointed out that this was a decision dealing with procedures relating to telephone interception and the ICSO provides judicial authorization for this form of surveillance. Furthermore, the ECtHR did not say that there had to be judicial authorization but only that some form of judicial supervision was desirable and in Hong Kong there was after-the-event judicial supervision of Type 2 surveillance by the Commissioner. 125.He also submitted that as Type 2 surveillance is less intrusive and is utilised in surveillance situations where there is a lower expectation of privacy, it is appropriate that it need not be authorized by a judicial officer so long as the authorizing officer is capable of “acting judicially”. An authorizing officer of the ICAC, above the rank of Principal Investigator, it was asserted, is capable of acting judicially given the safeguards provided for in the ICSO. 126.In replying to the case of Lam Hon Kwok Popy on which the 2nd applicant relied, Mr Perry submitted that this case did not assist the applicant as it was decided before the ICSO came into force. In any event, in that case Tang JA, as Tang NPJ then was, found that the case involved participant monitoring and this had nothing to do with the kind of privacy which the law aimed to protect. He held that evidence obtained in breach of privacy was not inadmissible per se, and the crucial question was the fairness of the proceedings. 127.As to Ground 3 of the 2nd applicant’s grounds of appeal, the respondent submitted that the judge was well aware of the principles in Secretary for Justice v Lam Tat Ming and Anor[43] and that evidence obtained in breach of an accused’s constitutional right could be excluded. In determining the issue the judge had correctly considered the three-part test expounded in HKSAR v Muhammad Riaz Khan[44], where the court held that evidence obtained in breach of a defendant’s constitutional right can nevertheless be received if, upon careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right concerned, and (iii) appears unlikely to encourage any future breaches of that, or other, rights. Bokhary PJ said at paragraph 21:
128.In Lam Tat Ming, the Court of Final Appeal recognized that the use of undercover operations played an important role in combating crime, and that they will unavoidably involve elements of subterfuge, deceit and trickery. Here, the judge considered whether the undercover ICAC officers had intercepted the natural flow of the conversation so as to cause it to amount to an interrogation and concluded they had not. The three-part test was carefully applied and any challenge to his refusal to exercise his discretion to exclude the evidence was not reasonably arguable. D. The five questions raised by the court 129.At paragraph 4 of this judgment we referred to five questions which we raised with the parties and on which we said we would like their assistance. These 5 questions are:
130.The applicants and the respondent all provided answers to these questions in the course of their submissions. D.1 The applicants’ answers to the five questions 131.Mr Donald for the 1st applicant adopted the answers to the court’s 5 questions that are proposed by Mr Bruce for the 2ndapplicant and had nothing to add to them. In respect of the first question Mr Bruce submitted that the judge was correct in not looking at the redacted materials but incorrect in purporting to exercise a discretion to decline to do so. This is because under section 61(4) the trial judge has no power to look at materials on his own initiative. He can only access the materials if shown them by the prosecutor and the prosecutor can only show them to the judge if he, the prosecutor, has been shown them by the law enforcement agency. As the prosecutor was never given the redacted materials on the basis that they might reasonably be considered as undermining the prosecution case or assisting the defence case the prosecutor had no authority to provide them to the judge and consequently the judge had no power to inspect them. 132.In respect of the second question Mr Bruce submitted that the common law test is wider than the section 61(4) test as the common law test encompasses material that is not helpful to an accused. 133.In answering the third question Mr Bruce referred to the more recent Investigatory Powers Act 2016 but said that it contained, in essence, a similar prohibition on disclosure of interception related product. 134.As to the fourth question concerning how this court should proceed, it was Mr Bruce’s position that the Court of Appeal can only inspect the withheld material in the limited circumstances, which do not apply in the present case, that are set out in section 61(6) of the ICSO. 135.Mr Bruce’s answer to the fifth question, in a nutshell, was “No”. He said that under the section 61 regime there is no procedure that enables a defendant to become aware of at least the gist of what is in the redacted materials. Under this regime the prosecutor cannot properly act as a Minister for Justice in looking at the materials and his role is confined to being an administrative one, merely passing on materials to the judge but only doing so when they have first been passed to him. 136.The judge cannot protect a defendant’s interests as he does not see the redacted materials unless they are passed to him. Even when that occurs, the power of the judge is limited in terms of what he can do to secure the fairness of the trial. The main power is the power to stay the proceedings and that is a power that is only sparingly used. D.2 The respondent’s answers to the five questions 137.On the issue of whether the judge was correct in his decision not to look at the material in order to determine whether section 61 of the ICSO was invoked, Mr Perry submitted that the disclosure of the material to a court for the purposes of determining whether section 61 was invoked is inconsistent with the overall scheme of the ICSO. The public interest in securing a fair trial and avoiding injustice is secured by strict adherence to the statutory regime which imposes discrete responsibilities on those who are responsible for the operation of the telecommunication interception process. The responsibility of the prosecution is to ensure that the prosecution case does not proceed in a manner inconsistent with the content of any intercepted material. Hence, no question of disclosure should have arisen for determination at trial and the judge should not have sought to review the prosecution’s decision not to disclose the redacted information. 138.Mr Perry referred to the Attorney General’s Guidelines in the United Kingdom which make clear that it is for the prosecutor to decide on the action to be taken, and this is just one aspect of the duty placed on prosecuting counsel to act as a Minister of Justice. The essential point is that disclosure, other than within the strict confines of section 61(4) of the ICSO, is not permitted in a scheme which is based on the necessity for secrecy and the need to keep the interception product out of the public domain. 139.On the question of whether the statutory test under section 61(4) of the ICSO is the same as the common law test for disclosure, Mr Perry submitted that the section 61(4) test of information which “might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence” is clearly narrower than the common law test. 140.He argued, however, that the difference in the respective tests, and the fact that section 61(4) of the ICSO operates only in rare situations, has no impact on the safety of the convictions. 141.On the question of whether there has been any material change in the law in the United Kingdom concerning disclosure since the coming into force of RIPA, Mr Perry informed the court that the position remains unchanged and the operation of the interception regime has withstood challenges both domestically and in Strasbourg. 142.On the question of how this court should proceed if it is of the view that the judge ought to have inspected the material which the prosecution sought to withhold under section 61 of the ICSO, Mr Perry submitted that this issue would only arise if this court disagreed with the respondent’s submission that the legislation simply is not designed to allow intercept material to become part of the criminal process and that disclosure to the trial court or the Court of Appeal would be contrary to the legislative scheme and the safeguards contained in section 59. However, if this court did disagree with the respondent’s submissions then, he accepted that, in principle, the Court of Appeal could view the material on an ex parte basis. 143.In answer to the question whether it was fair to admit in evidence the covert audio recordings when the applications for the authorizations and corresponding approvals were not themselves part of the evidence, Mr Perry submitted that there was no irregularity on the face of the documents and they were vetted not only by a directorate officer of the ICAC and, in respect of the Type 1 authorizations, by a panel judge. Furthermore, there was no evidence to suggest that the protected information would reveal any illegality or impropriety on the part of the ICAC. Mr Perry noted that this type of argument was rejected by the House of Lords in Preston and, as Lord Jauncey of Tullichettle observed in that case, it is likely that intercept product will incriminate rather than exculpate one or other of the parties to the intercepted conversation and would be more likely to be of assistance to the prosecution if it was available in evidence. E. Discussion E.1 Policy considerations underlying the ICSO 144.There are number of key policy considerations underlying any enactment dealing with telephone interception and covert surveillance. For present purposes it is only necessary to mention three. They are:
145.In the ICSO the answer to the first policy question above is that it depends on the power to be accessed. For telephone interception the power can only be accessed on the approval of a panel judge, who is a judge of the Court of First Instance of the High Court. For covert surveillance the answer is not so straightforward as it depends on the type of covert surveillance for which authorization is sought and whether it is likely that any information which may be subject to legal professional privilege will be obtained by carrying out the covert surveillance. Where such material is not likely to be obtained and where other conditions are satisfied that go to the intrusiveness of the covert surveillance then it will fall into the category of Type 2 surveillance and such surveillance may be authorized by a senior officer of the department which wishes to carry it out. If the nature of the covert surveillance falls within the category of Type 2 surveillance but it is likely that information which may be subject to legal professional privilege will be obtained by carrying out the covert surveillance, then the Type 2 surveillance is elevated to Type 1 surveillance and must be authorized by a panel judge. 146.The answer to the second policy question is that the ICSO establishes the position of the Commissioner and stipulates that the person who occupies this position must be or have been a judge or Justice of Appeal of the High Court or have been a permanent judge of the Court of Final Appeal. The ICSO sets out the duties of this person and the powers he shall possess in carrying out those duties. 147.The answer to the third policy question is that the product of telephone interception may only be used for an intelligence purpose to assist the department which is conducting it in furthering the purpose of preventing or detecting serious crime or protecting public security. However, the product of covert surveillance may be used in court proceedings, which is, of course, what happened in the present case. 148.It is not contested that, in respect of telephone interception, the underlying policy of the ICSO is to maintain secrecy, both in relation to whether or not it has taken place and in relation to any product generated by it. As Mr Perry pointed out, this policy is implemented by the various provisions contained in sections 59 and 61. 149.However, before considering these sections it is perhaps helpful to emphasise what legal issues are not in dispute. It is not being disputed that government can adopt policy decisions of maintaining secrecy in respect of telephone interception activities by departments and of prohibiting any evidential use of the telephone interception product. The issue is whether in implementing these policies and dealing with the consequences that flow from them the ICSO goes beyond what is necessary and, in different provisions, enacts a disproportionate response in dealing with matters that are a consequence of pursuing the legitimate goals that underlie it. The consequences of the legislation are that intercept product is usually destroyed before it is known whether a prosecution will take place and that what may remain cannot be disclosed through the normal disclosure process as that would undermine the secrecy of the interception. This has led to a separate disclosure regime whose features are the subject of the constitutional challenge. 150.The policy goals that lie behind destruction of the product are to maintain secrecy in respect of the interception and to protect the privacy interests of those affected by it. These are legitimate policy goals and legitimate public interests. 151.There is nothing in the human rights case law which suggests that in a telecommunication interception statutory regime which prohibits the evidential use of intercept product, the intercepting authority must nevertheless preserve the product solely so that it can be disclosed to a future defendant who may face trial in a prosecution flowing from an investigation for which the intercept product was acquired. A defendant is not deprived of a fair trial simply because the telephone interception product has been deliberately destroyed before a prosecution obligation to make disclosure arises. 152.The destruction requirement in the ICSO is clearly in conflict with the common law duty of disclosure. As Mr Perry pointed out “you can’t disclose what you have already destroyed.” However, it has been argued that the non-disclosure of what remains is inconsistent with Lee Ming Tee which, it is said, recommends disclosure with a prohibition on collateral use and that it results in an inequality of arms. 153.The Lee Ming Tee argument can be quickly addressed. Sir Anthony Mason NPJ said in Lee Ming Tee that:
154.When Sir Anthony Mason NPJ made this statement he was responding to an argument being advanced on behalf the Secretary for Justice that the disclosure duty, being a duty imposed on the prosecution, should be confined to materials in the possession of the prosecution. It was in rejecting that argument that he referred to the prohibition on collateral use and the comment has to be understood in the context of that particular case where the Securities and Futures Commission withheld the undisclosed material from the prosecution. The comment was clearly designed to assuage any concerns which investigating agencies might have that the duty of disclosure could lead to the undesirable consequence of information being more widely disseminated than the investigating agency would like. However, the comment was not intended to remove or in any way dilute the right of the prosecution to withhold information from a defendant in accordance with the law, such as through the process of public interest immunity, or where, as here, there is a particular statutory process that has been enacted by the legislature. 155.That is not to say that Sir Anthony Mason NPJ’s comments do not have relevance to this issue; they clearly do and this is something to which we will return later in this judgment. 156.In relation to the argument in respect of equality of arms it must be remembered that this principle is confined to the process of trial and has no relevance to the investigation stage. In McLean v Buchanan (PC)[46] Lord Hope of Craighead explained the principle of equality of arms as follows:
157.We do not see that the fact that the law enforcement agency enjoys an investigative benefit from making use of intelligence acquired from telephone interception product creates an inequality of arms at trial when no evidential use is made by the prosecution of that product. This has been the consistent view of both Strasbourg and English jurisprudence and we see no reason to hold otherwise. There is no inequality of arms arising from the defence being denied the opportunity of using it, pre-trial, for speculative investigative purposes. But there is a potential risk of injustice from the defence not being aware of actual matters that may assist the defendant in some way and which he can use to advance his case at trial. It is that potential risk of injustice that the ICSO disclosure regime is designed to prevent. 158.Because of the statutory safeguards in relation to destruction of the product, it is unlikely that the original product will continue to exist by the time of any trial flowing from the investigation. In the course of the investigation the product will have been listened to by investigators and notes made of any useful intelligence. Perhaps parts will be transcribed. By the time of trial all that may remain may be the notes made by the officers who listened to the recordings. Hence, the word used to describe the disclosable material is “information”. This is a broad word and is clearly deliberately chosen to reflect what should have happened with the telephone interception product as a consequence of compliance with the destruction requirement. 159.Once it is accepted that the right to a fair trial does not require the extreme step of preserving the interception product for later disclosure, then the only issue is how disclosure of what remains should take place. Here the policy goal of secrecy will rub against the right of a defendant to a fair trial, as disclosure is part of that right. If maintaining secrecy is a legitimate policy goal, as it clearly is, then disclosing the product but prohibiting collateral use of it is not a practical option and, as we have already explained, the law does not require that this option must be employed. It is, therefore, necessary to devise a disclosure regime which can accommodate both the policy goal of maintaining secrecy and the right of the defendant to receive a fair trial. To meet this need the legislature enacted section 61. E.2 The statutory regime under section 61 160.Before examining section 61 it is well to remind ourselves what it is that human rights law requires of a disclosure regime in terms of ensuring equality of arms and a fair trial. This was explained by Lord Hope of Craighead in Sinclair v H.M. Advocate[47] when he distilled a number of propositions from the cases:
161.The last sentence in the passage quoted above resonates with the more recent statement of the ECtHR in Kennedy v United Kingdom[48] where the court explained the principle as follows: 162.In enacting section 61, the legislature recognized that a different disclosure regime was needed for the ICSO and so created one which sought to protect the public interests of maintaining the secrecy of the interception, and the product generated by it, and limiting the intrusion into the privacy rights of others and yet would not deprive a defendant of a fair trial. The question we have to address is whether the limited disclosure regime, and its various elements, is a proportional response to the policy goals sought to be achieved by the ICSO. In the words of Lord Hope in Sinclair whether there are “sufficient judicial safeguards in place to ensure that information is not withheld on the grounds of public interest unless this is strictly necessary.” Answering this question will require an examination of the various components of the section 61(4) disclosure regime. 163.However, before doing so it is well to remember what it is about the disclosure regime of which complaint is being made. It is said that section 61 impacts so adversely on the disclosure process and the openness of the trial that the trial can no longer be fair. The adverse impact of section 61 is in marginalizing the role of the prosecutor in the disclosure process, excluding the defendant from that process and in limiting the role and powers of the judge in that process. It is argued by the applicants that the provisions of section 61 that cause these adverse impacts are not necessary in order to achieve the legislative purpose of maintaining secrecy and are, therefore, a disproportionate response to the legitimate aim of the legislation. 164.We shall firstly examine the statutory disclosure test that is contained in section 61(4). Both parties agree that it is narrower than the common law test. For Hong Kong the common test was set out by the Court of Final Appeal in its judgment in Lee Ming Tee. In that judgment the court did use language that would appear to be taken from the test that was enacted in the United Kingdom in the Criminal Procedure and Investigations Act 1996 but it did also specifically adopt the test which had been accepted in England as representing the common law test for disclosure. In discussing the development of the law relating to disclosure in England Sir Anthony Mason NPJ, with whose judgment the other members of the court agreed, said at page 383C-391F:
165.What is said by Sir Anthony Mason NPJ at paragraph 171 of his judgment, in the context of the discussion which precedes it, leaves us in no doubt that the Court of Final Appeal adopted the Melvin categories as the common law test of disclosure for Hong Kong. 166.There are a number of matters that can be drawn from this discussion of disclosure by Sir Anthony Mason NPJ that need to be emphasized:
167.The fact that section 61(4) replaces the wide common law test as laid down in Melvin with a narrower test is a clear indication that it was thought that the width of the Melvin test was unsuited to the legislative purpose of maintaining secrecy of telephone interception and that a narrower test is necessary. We do not understand the applicants to be arguing that the narrower test in section 61(4) is a disproportionate response to the legislature’s desire to balance the need to maintain secrecy with the need to protect the fairness of the trial. Such an argument, in any event, we would regard as unsustainable. The statutory test still provides adequate protection for the interests of the defendant and does not undermine the twin goals of open justice and a fair trial. 168.We agree with the parties that, because of the way section 61(4) is drafted, the disclosure test is applied by the department and not by the prosecutor. Nor is there any requirement in the section or in the Code of Practice that this test should be applied by officers of the department independent of the investigation. Whether substituting officers of the department for the prosecutor in applying the disclosure test is necessary for maintaining secrecy is something to which we shall return later in this judgment. 169.If the officer of the department performing the disclosure test concludes that there is no information to which the test applies then he says nothing to the prosecution. If he concludes otherwise then he discloses the information to the prosecution. 170.The information referred to in section 61(4)(b) is the information which the department has passed to the prosecutor after the department has itself concluded that this information passes the disclosure test. But, and here we agree with Mr Perry, once in the hands of the prosecution the prosecution must then, itself, apply the disclosure test to it and the prosecution only discloses the information to the judge if it, the prosecution, concludes that the information “might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence.” We do not agree with Mr Bruce that section 61(4)(b) makes the prosecutor a mere conduit for the department, simply passing on to the judge what has been passed to it by the department. 171.As any disclosure to the judge is in an ex parte hearing the defendant and his legal representatives will not be aware that information that might reasonably be considered capable of being helpful to their case exists and is being made known to the judge. 172.In response to this disclosure to him the judge may “make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.” But, because these orders cannot require contravention of section 61(1)-(3) it is unlikely that the defendant or his legal representatives will be aware of the existence of the orders, let alone the reason why they have been made. E.3 The constitutional challenge 173.Against this backdrop of how the section 61 regime operates, it is necessary to address the argument that its provisions are unconstitutional. As we have earlier mentioned in this judgment, Mr Bruce does not dispute that the infringements or restrictions encompassed by section 61 pursue a legitimate societal aim and are rationally connected with advancing that aim. What he does contest is that the infringements or restrictions are no more than is necessary to accomplish the legitimate aim. In order to do this Mr Bruce invites us to conduct a proportionality analysis of section 61. 174.The circumstances in which such an analysis needs to be conducted and how it is to be conducted were the subject of detailed discussion by Ribeiro PJ in his judgment, with which the other members of the Court of Final Appeal agreed, in the case of Hysan Development Co Ltd v Town Planning Board[49]. In his judgment Ribeiro PJ quoted with approval the following summary of the questions that need to be answered before the proportionality issue is addressed. The summary is from the joint judgment of Fok PJ and Stock NPJ in Official Receiver v Zhi Charles[50]:
175.At first glance it may be thought that the constitutional right that is engaged in the present case is the Article 30 right to privacy for that is the right upon which the provisions of the ICSO encroach. As Ribeiro PJ noted in Ho Man Kong v Superintendent of Lai Chi Kok Reception Centre[51]:
176.Article 30 is engaged as a consequence of the argument that covert surveillance can only be lawfully authorized by a judicial officer or person capable of acting judicially. Should this argument be correct, then an executive authorization issued by an officer within the department conducting the covert surveillance does not legitimize an infringement of the Article 30 right. This argument is the subject of a separate ground of appeal and requires its own proportionality analysis. This we shall do later in this judgment.[52] E.3.1 Right to fair trial engaged 177.However, the right that is engaged by the measures contained in section 61 is the right to a fair trial under Article 87 of the Basic Law and Articles 10 and 11(2) of the HKBORO. These fair trial articles are engaged because section 61(4) alters in a significant way the disclosure regime under the common law and, as we have seen, disclosure and openness are integral components of a fair hearing. The section 61(4) regime alters these components by:
178.Having identified the constitutional right, and having confirmed that it is engaged by the impugned measure, it is then necessary to consider whether the legislative provision amounts to an interference with or restriction of that right. There is no dispute that section 61 amounts to an interference with the right to a fair trial. That just leaves the final question to be asked which is whether the right is absolute. 179.The right to a fair trial is an absolute right and so no derogation from it is permitted. However, components or elements of a fair trial may be interfered with as long as any such interference does not prevent a fair trial from taking place. An obvious example, around which much case law has developed, is the interference with the presumption of innocence by the creation of reverse burden offences. Another, more relevant, example are the procedures, developed at common law, for resolving claims of public interest immunity in respect of otherwise disclosable material.[53] E.3.2 Proportionality analysis 180.We shall, therefore, now conduct a proportionality analysis of the measures contained in section 61. What is involved in such an analysis was explained by Fok PJ and Stock NPJ in the Zhi Charles case as follows:
This is sometimes referred to as a three step inquiry. 181.In his judgment in Hysan Ribeiro PJ referred to two standards that could be applied in determining whether a particular measure is a proportionate means of achieving a particular aim. He described these as the “no more than necessary” standard and the “manifestly without reasonable foundation” standard. 182.He explained the “no more than necessary” standard in the following way:
When summarizing his conclusions later in his judgment he said of this standard:
183.The “manifestly without reasonable foundation” standard is related to the concept of “margin of appreciation” that is found in the Strasbourg jurisprudence. It has been adopted in the United Kingdom. This standard recognises “the different constitutional roles of the judiciary on the one hand and the legislative and executive authorities on the other”[57] and has regard to whether, on democratic grounds, the judiciary should defer to the opinion of the elected body or person. This standard may be particularly relevant where “the Court recognises that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused. This has occurred in cases involving implementation of the legislature’s or executive’s political, social or economic policies but the principle is not confined to such cases.”[58] 184.Which of the two standards should be employed by a court will be determined by a number of factors. Ribeiro PJ explained how this choice should be made:
185.Ribeiro PJ also noted that it is relevant when conducting the proportionality analysis to have regard to the significance of the particular right affected by the interference and the extent of interference with it. This led him to say:
186.Also relevant are the content and features of the impugned measure, the identity and constitutional role of its originator and any special competence possessed by such a person. These factors may cause the court to accord the decision-maker’s views a wide margin of discretion. But:
187.Although he referred to these two standards as though they were different standards, separate from each other, Ribeiro PJ was at pains to emphasise that the difference between them is one of degree. They both operate on the same reasonableness spectrum and really only “indicate positions on a continuous spectrum rather than wholly independent concepts.”[62] The location of the “manifestly without reasonable foundation” standard in this spectrum of reasonableness depends, he said, on many factors “relating principally to the significance and degree of interference with the right; the identity of the decision-maker; and the nature and features of the encroaching measure relevant to setting the margin of discretion.”[63] 188.Ribeiro PJ went on to add to the proportionality analysis a fourth step in the enquiry to be conducted by the court. He said:
189.The fourth step has become part of the jurisprudence of the United Kingdom. In setting out how it has been described in case law from that jurisdiction Ribeiro PJ said:
190.Although adopting this fourth step Ribeiro PJ recognized that:
191.Mr Bruce did not address us on this fourth step should we be against him on the third step. Of course, if we are with him on the third step then consideration of the fourth step falls away. 192.We shall firstly address the question of whether the ex parte procedure in section 61(4) is a fair procedure since it excludes the defendant from having any role in it, or even from knowing of its existence. 193.We are not persuaded that it does create unfairness simply by virtue of its one-sidedness. The judge can still look to the interests of a defendant and ensure that they are protected just as he does in the third class of public interest immunity case that was described by the English Court of Appeal in R v Davis[67]. This is the class of case relating to material where the public interest would be injured even by disclosure that an ex parte application is to be made. The Court of Appeal described such cases as highly exceptional because they were contrary to the general principle of open justice in criminal trials. 194.In England the problems associated with ex parte hearings were the subject of discussion by the House of Lords in R v H [68]. The approach of the courts to claims of public interest immunity was commented on by Lord Bingham of Cornhill who, in giving the opinion of the Appellate Committee, said[69]:
195.Whether this process, which is an exceptional process, renders a defendant’s trial as unfair cannot be answered without regard being had to the role of the prosecutor. In his judgment in R v H, Lord Bingham discussed how the fairness of a trial was to be achieved. At page 146E-F he said:
196.He went on to discuss the role of prosecuting counsel and said at page 146G that:
Lord Bingham referred to his discussion of the role of the prosecutor in Randall v The Queen[70] where he had commended the following statement by Rand J in the Supreme Court of Canada in Boucher v The Queen[71]:
197.The important contribution that the prosecutor makes to the fairness of the trial in the context of disclosure was the subject of comment by Lord Rodger of Earlsferry in McDonald (John) v H.M. Advocate[72]. He said:
198.We are satisfied that so long as the prosecutor conscientiously performs the role of a minister of justice and at all times remains vigilant in protecting the fairness of the trial, the ex parte procedure and the constraints on the powers of the judge should not, by themselves alone, lead to an unfair procedure. 199.But, in conducting the proportionality analysis, it is not just fairness to the defendant with which we are concerned but also frequency of occurrence. This is because this form of ex parte procedure is so contrary to the principle of open justice that it must be regarded as a truly exceptional procedure. It cannot become a regular occurrence in our trials. We are concerned, therefore, at the possibility of section 61(4)(b) hearings occurring more frequently than the third category of Davis public interest immunity hearings presently occur. We share the concern of the English courts that by reason of their total exclusion of a defendant from these ex parte hearings they should be regarded as a highly exceptional hearing whose number should be kept to a minimum. However, if the legitimacy of covert surveillance evidence is proven by means of the authorization, then the statement in writing or affirmation that has been relied on to justify the issue of the authorization will continue to be disclosable material by application of the common law test. 200.Documents created by law enforcement for the purpose of obtaining various kinds of warrants often find their way into disclosable unused material. When this happens they may have to be redacted if they contain information which, by the time of trial, still remains sensitive. In that situation a claim of public interest immunity is made and the procedure and legal principles for determining such a claim are well established in our law. But where the redactions have been made in order to conceal the fact that telephone interception has taken place, as happened in the present case, such a procedurewill be inappropriate. The obvious solution is for no reference to be made to information obtained from telephone interception. Once reference is made to telephone interception and a redaction is made to the disclosable document then the judge has to be informed that a public interest immunity claim will not be made but that the redacted parts of the document remain undisclosable for other reasons. It is difficult to see how, within the constraints imposed by section 61, this can sensibly be done. This does not seem to be a problem that has been catered for in the legislation and is something that may have to be addressed by those responsible for the ICSO. 201.We note that in England use has been made of the device of a “special advocate” where it has been adjudged necessary to have an independent person who could advance before the court arguments in support of the interests of a defendant. Such a person is made aware of the disclosable material but cannot inform the defendant of it. Use of such a special advocate has taken place without statutory backing. We are not aware of such a device having been employed in Hong Kong. However, we do think that where the judge feels it would be desirable for the purposes of assisting him and for maintaining the fairness of the proceedings then recourse could be had to it. 202.We turn next to the question of whether this regime prevents a defendant from receiving a fair trial. Nowhere does the ICSO require a defendant’s trial to continue in circumstances where the judge concludes that, by virtue of the limited powers available to him, he cannot ensure that the defendant will have a fair trial. The constraints imposed upon the judge are necessary if secrecy is to be maintained. If those constraints prevent a fair trial then the judge so rules and orders a stay of the proceedings. The price to be paid for maintaining secrecy is a price paid by the prosecution which, by tying the judge’s hands, exposes itself to the risk that its prosecution may be stayed. 203.As we have said earlier in this judgment, it is not contended that the narrower statutory test for disclosure by itself, prevents a defendant from receiving a fair trial. 204.This brings us to the final element of the disclosure regime of which complaint is made and that is whether the section 61(4) regime, in transferring from the prosecutor to the investigator responsibility for the application of the disclosure test, is reasonably necessary, and is, therefore, a proportionate response, to the legitimate aim of maintaining secrecy of telephone interception. 205.We note that the prosecutor is not excluded completely from the process. He will become involved should the department conclude it possesses information that is caught by the disclosure test. Nor is there anything in the ICSO which would prevent the department from seeking legal advice on this issue, for which purpose it would have to disclose the information that continues to exist. In these circumstances we find it difficult to see what essential benefit is to be gained from transferring the disclosure duty from the prosecution to the department, without which the secrecy of the telephone interception would be undermined or imperilled. 206.One way of testing the respondent’s argument that this regime is necessary is to examine what has been done in the RIPA on which the ICSO has been modelled. 207.There is nothing in RIPA which actually transfers the disclosureduty from the prosecution to the investigator. Section 15(2) of RIPA requires that the number of persons to whom intercepted material is disclosed and the extent to which any such material is disclosed “is limited to the minimum that is necessary for the authorised purposes.” Subsection (4) sets out what is “necessary for the authorized purposes” and includes the situation where:
208.These provisions must be read with section 17(1) which contains a prohibition similar to section 61(3) of the ICSO and, in so far as it also encompasses a prohibition on disclosure, similar to section 61(2) of the ICSO. But section 17(1) is expressly made subject to section 18 and section 18 states in subsection (7):
209.How these provisions are intended to operate in practice is set out in the Attorney-General’s Guidelines for Prosecutors as follows:
210.The Crown Prosecution Service Disclosure Manual has a chapter entitled “Dealing with Intercept Product”. It states as follows:
211.It is our view that when sections 15, 17 and 18(7) are read together it is clear that an obligation is imposed upon the investigator to inform a prosecutor of information that continues to be available but only for the limited purpose “of enabling that person (i.e. the prosecutor) to determine what is required of him by his duty to secure the fairness of the prosecution”. 212.Disclosure is an aspect of a fair trial and, as we have seen, the prosecution is a key player in ensuring that a defendant receives a fair trial. This is recognised by RIPA and there is nothing in RIPA, or in the United Kingdom’s administrative material that we have quoted in the preceding paragraphs, to suggest that the law enforcement agency can withhold material from the prosecution because it considers that material to be non-disclosable. There is no suggestion that the investigator performs an initial filtering process in respect of the information that continues to be available and that he can choose not to disclose it to the prosecutor if he,the investigator, is of the view that the prosecutor does not need this information to enable him “to determine what is required of him by his duty to secure the fairness of the prosecution.” 213.By restricting the purpose for which disclosure is made to the prosecution, the principle of equality of arms is preserved as the prosecutor can make no evidential use of it or any tactical adversarial use of it. The purpose of disclosure to the prosecutor is to enable him, in his role as prosecutor, to decide what he, as prosecutor, must do in order to fulfil “his duty to secure the fairness of the prosecution”. It is important to emphasize that what the prosecutor is fulfilling is something as high as “a duty” and it is a duty personal to him. He may rely on others to assist him in discharging it but ultimately it is his duty for the performance of which he is held responsible. 214.The fact that the United Kingdom has not seen the need to limit the role of the prosecutor in the way that the ICSO does, seems to us to be a very powerful indicator that such a provision is not in fact necessary for the purpose of maintaining the secrecy of the interception. 215.It is also worth bearing in mind that section 18(7) of RIPA flowed from the practice that developed from Preston briefings which themselves were prompted by what Lord Mustill said in Preston. What Lord Mustill said bears repetition. Lord Mustill’s comments were in response to a proposition by the Attorney General that “since nothing which might be disclosed to prosecuting counsel and through him to the defendants could in the light of section 9 be put in evidence before the jury there was no need to override the interests of secrecy by any further disclosure.”[73] Lord Mustill’s first response to this proposition was that disclosure of inadmissible information can lead by a train of inquiry to information which may be admissible, or helpful to the defence in some other way. He then continued:
216.This eloquent statement by Lord Mustill on the importance of the prosecutor to the fairness of the trial process lends further emphasis to the crucial and unique role that the prosecutor plays in what is otherwise an adversarial process. 217.It is important to appreciate just how different are the roles of investigator and prosecutor. In the investigative stage of the criminal justice process the courts and the prosecutor play a support role to the law enforcement agencies in order to facilitate their investigations. The prosecutor provides legal advice and the courts will become involved in adjudicating upon applications for search warrants, ICSO authorizations or production or other orders. 218.Throughout their performance of their different roles, investigator and prosecutor, remain, crucially, separate from each other. But it is not just that they are separate from each other that distinguishes the Hong Kong/English common law relationship of investigator and prosecutor, but also that in the performance of their duties they act independently of each other. The prosecutor may advise, suggest and request an investigator to conduct his investigation in a particular way but he can never require, demand or dictate that he do so. In respect of the ICAC that operational independence is actually entrenched in Article 57 of the Basic Law. 219.But once a person is charged with an offence the support roles are reversed. The forensic process is dominant and the law enforcement agency plays a supporting role to the prosecutor. In carrying out his prosecution duties the prosecutor’s independence of action is also constitutionally guaranteed. Article 63 of the Basic Law provides:
220.This brings us to the context in which a prosecution plays out. That context is, of course, the adversarial process of the courtroom. 221.We have seen how much human rights law has developed around the rights of the accused in an endeavour to make more equal this adversarial contest between the prosecutor, who possesses all the resources of the state to support him, and the defendant who, more often than not, has only the limited resources of a legal aid organization available to him. Examples of this are the development of the concept of equality of arms, the disclosure duty imposed on the prosecution and the importance given to the concept of open justice. 222.But no matter how many rights we give to a defendant we cannot hope to achieve a completely equal contest. Nor does the law require perfection in attaining the goal of a fair trial. In HKSAR v Lee Ming Tee & Anor[75] Ribeiro PJ, in giving a judgment with which the other members of the court agreed, described the position as follows:
223.The need to ensure that the trial proceeds is because there are other interests at stake. The criminal trial is more than just a contest between state and defendant and more than just a process in which the only interest at stake is that of the defendant. In his now celebrated statement in AG’s Reference (No 3 of 1999) [76] Lord Steyn described the forensic stage of the criminal justice process as involving a triangulation of interests. He said at page 118E-F:
224.Once we accept that there are limitations on what we can achieve but that the interests of justice require us to, nevertheless, do all in the court’s power to ensure a trial takes place, the issue becomes one of examining what can be done, in the words of Brennan J in the Jago case, “to mould the procedures of the trial to avoid or minimize prejudice to either party.”[77] 225.We strive to protect the interests of the defendant by having his trial take place in public; by providing him with legal representation at the trial level; by providing him with procedural and evidential rights; by ensuring that the trial is presided over by an impartial judicial officer and by imposing on the prosecutor duties which transform his role from simply being an advocate for a party to being a minister of justice. 226.Inevitably, the more we dilute any of these matters the more we put at risk the fairness of the trial. It is in this context that the importance of the role of the prosecutor must be appreciated. Lord Mustill in Preston described the role of the prosecutor as being an “arbiter between the adversarial interests of the prosecution and the broader dictates of justice”[78] and went on to say that this minister of justice aspect of his role “cannot be effectively performed unless he knows everything material that there is to know.”[79] 227.Consequently, we are very wary of in any way limiting the prosecutor in performing his role as a minister of justice in a process which, precisely because it is one sided, demands more, not less, from him in respect of this aspect of his role. He, not the investigator, is best equipped to know how he will present his case, to appreciate what weaknesses exist in his case and to anticipate how a defence counsel might be able to advance his client’s defence in response to the prosecution case. 228.This emphasis on the importance of prosecuting counsel as a minister of justice resonates with the judgment of Sir Anthony Mason NPJ in Lee Ming Tee who resisted any attempt to dilute the prosecution duty. It is difficult to imagine, given the strength of Sir Anthony Mason NPJ’s comments, that he could ever have contemplated transferring this duty from a person on whom the law imposes a role of minister of justice to an officer of the law enhancement agency who has a vested interest in the success of the prosecution. 229.In deciding this issue we have had regard to the two standards discussed by Ribeiro PJ to be applied in the course of performing the proportionality analysis. We accept that in drafting legislation governments commonly have regard to what has been enacted by other parliaments or legislative bodies and that even when they model their legislation on what has been done elsewhere they do not necessarily copy everything from the foreign legislation. Governments inevitably review the range of options open to them and choose the one that they feel is, for one reason or another, most appropriate for them. 230.We accept that in respect of the ICSO the government chose a different path from the United Kingdom on the issue of disclosure. The government, again for one reason or another, may have thought that was a more desirable path to take. But we are not concerned with what is desirable but rather with what is necessary. 231.In deciding what is necessary we do not see that there is any particular margin of discretion relevant to this issue. We appreciate the concern of the respondent and we understand its argument that anything less than the regime created will undermine and imperil the legitimate aim that section 61 seeks to achieve. But we are not persuaded by this argument. We apply the reasonable necessity test and in doing so we conclude that the intruding measure of transferring the disclosure duty from the prosecution to the investigator is more than is necessary. We are satisfied that retaining the common law position whereby the duty is imposed upon the prosecution is “a significantly less intrusive and equally effective measure” in achieving the legitimate aim of maintaining secrecy of telephone interception. 232.In due course we shall hear the parties on what order we should make in response to this ruling. One option might be to give a remedial interpretation of section 61(4). In Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise[80]the Court of Appeal said that a court that finds itself in the position of declaring a legislative provision unconstitutional “should consider whether the legislative provision in question can become Basic Law–compliant by remedial interpretation before holding that it is constitutionality invalid.” At paragraph 97 of its judgment it summarized the relevant legal principles as follows:
233.We believe that the following remedial interpretation would not be inconsistent with these principles:
234.The italicised words are read in to ensure that the prosecution is provided with any extant information and that it is the prosecution who then decides whether that information passes the disclosure test. 235.At this stage we do no more than raise this possible remedial interpretation for the consideration of the parties as we shall not be making any order until the parties have been given an opportunity to be heard on this matter. 236.It was also argued under this ground of appeal that the judge erred in requiring the defence to explain to him the relevance of the redacted material before determining whether it was disclosable.[81] In the circumstances in which the judge found himself we see nothing wrong in his decision. 237.True it is that the documents were disclosable as they were clearly relevant documents under the common law disclosure test, being the underlying documents containing the factual justification for the granting of the authorizations. But that does not mean that all of their contents were disclosable. Only parts of each document were redacted and the rest of the document contained sufficient information to justify the issue of the covert surveillance authorizations. Furthermore, there was nothing on the face of the documents which showed that they had a relevance beyond providing the evidential basis for the granting of the application for an authorization to conduct covert surveillance. Nor was there any reason to believe that the redacted parts would call into question the propriety of the application, the sufficiency of the evidence to support it or the legality of the decision to grant it. 238.In this situation the defence request had all the hallmarks of a fishing expedition of the kind that has long been regarded as inimical to the interests of justice. In the case of R v Guney[82] Lord Justice Judge said:
239.In R v H[83] Lord Bingham offered the following guidance on the approach to be taken to disclosure:
240.The redactions in the present case clearly peaked the curiosity of the defence counsel and caused them to embark on an exercise of exploratory disclosure in the wholly speculative hope that something favourable to their clients might be discovered. The judge, quite properly, refused to allow this to take place. E.4 The impact of the constitutional challenge on the convictions 241.Before leaving this ground of appeal we have to address the question of whether our ruling in respect of the constitutionality of section 61(4) has any impact on the applicants’ convictions. The ruling is particularly relevant to the 1st applicant’s second ground of appeal and the section 61(4) part of the 2nd applicant’s second ground of appeal. We are satisfied it does not. We say that because on the facts of the present case it is clear that by the ex parte hearing on 5 November 2014 the ICAC had disclosed the redacted material to the prosecution and the prosecution had applied to it the statutory disclosure test.[84] Independently of the ICAC, the prosecution had reached the view that none of the material was covered by the test and, therefore, none of it was disclosable. 242.It follows, therefore, that, despite our ruling on section 61(4), the grounds of appeal that are the 1stapplicant’s first and second grounds of appeal and the 2ndapplicant’s second ground of appeal, must fail. E.5 Executive authorizations 243.The 2nd applicant’s first ground of appeal complains that the executive authorizations were issued pursuant to an unconstitutional provision as such an infringement of the right to privacy should only have been sanctioned by a judicial officer or someone capable of acting judicially. As we have said at paragraph 176 of this judgment this argument engages Article 30. There is no doubt that executive authorizations amount to an interference with, or restriction of, that right. The next question that needs to be addressed is whether the right that is engaged is an absolute right.[85] The right to privacy is not an absolute right and so, in principle, it is lawful for government to legislate in a way which interferes with, or encroaches on, the right. 244.The question raised by this ground of appeal is whether the use of executive authorizations is necessary for the purpose to be achieved or whether it is a disproportionate response. The argument of the applicants is that applications for authorizations to conduct covert surveillance must be authorized by a judicial officer or a person capable of acting judicially and thatofficers working within the same law enforcement agency that is applying for the authorization are not capable of acting judicially. 245.In support of this argument Mr Bruce relies on the Canadian Supreme Court case of Hunter v Southam Inc[86] which concerned search warrants. In the area of search warrants our Court of Appeal has approved the approach espoused in Hunter v Southam Inc in its judgment in the Keen Lloyd case. 246.There is no doubt that in an ideal word judicial authorization is a very desirable check on the use by the executive of important powers that impact in a substantial way on the rights of the citizen. No one would disagree with the valuable role that a respected judiciary can play as a gatekeeper of these powers. Any judicial officer will bring not just actual independence of mind and impartiality of decision making to the gatekeeper role but, also of great importance, a perception by the public that these qualities stand between the power of the state and the rights of the citizen. Such perception is strengthened when the judicial officer is of the rank of High Court judge. 247.The principle in Hunter v Southam Inc has been expressly followed by our Court of Appeal in the Keen Lloyd case. At pages 1396-1399 the court discussed the judicial gatekeeping role and said:
248.In this case the Court of Appeal was dealing with a statutory provision which allowed a warrantless search of premises and was called upon to determine the constitutionality of this provision. It again found assistance in the comments of Dickson J in Hunter v Southam Inc. At page 1394 [64]-1399 [75] it said:
249.The answer of the respondent to this ground of appeal is that:
250.As attractive as it is to simply follow European human rights law we cannot ignore the fact that the judgment of Dickson J in Hunter Southam Inc has been specifically approved and followed by our Court of Appeal. Some further analysis is, therefore, necessary. 251.Hunter v Southam Inc can be distinguished on the basis that it concerned a search power provision, a power that by its nature involves a far greater intrusion of privacy. Nevertheless, we accept the importance that a judicial officer plays in his gatekeeper role and the fact that a judicial officer is not involved in the authorization process is a relevant factor in the proportionality analysis. 252.However, the lack of judicial involvement in the authorization process is not determinative of the issue. We say that because it is clear that if the law allows warrantless search then it must allow for searches to be authorized by persons other than judicial officers. In Hunter v Southam Inc, Dickson J said at page 653:
253.This passage was quoted with approval by our Court of Appeal in the Keen Lloyd case.[87] Furthermore, we note the ICSO itself allows for any prescribed authorisation to be issued by the head of a department in an emergency situation. Consequently, it not so much a question of whether it is legally permissible but whether it is justifiable. 254.We turn now to the justification that even though the officer of the department granting the authorization is not a judicial officer he is, nevertheless, a person capable of acting judicially. 255.This raises the question of what it means to be “capable of acting judicially”. The argument of the applicants is that the issuing authority is not just a person incapable of acting judicially, but he is actually a person with a positive conflict of interest. What is being argued is that this is, in effect, a situation of where the poacher is made the gamekeeper without being required to give up his poaching activities. 256.In Hunter v Southam Inc Dickson J said that for a prior authorization mechanism to be meaningful it is necessary for the person granting the authorization “to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.”[88] When addressing whether it was permissible for a person within an investigatory body to authorize subordinates to exercise search powers Dickson J said:
257.The authorizing officer is designated under section 7 of the ICSO by the head of a department and must not be “below a rank equivalent to that of senior superintendent of police”. The Code of Practice, issued pursuant to section 63 of the ICSO by the Secretary for Security, stipulates that in relation to the ICAC only “an officer of its Operations Department at or above the rank of Principal Investigator”[90] may be so designated. In respect of such persons the Code of Practice further provides:
258.Clearly this provision is designed to bring both independence and impartiality to the issuing process. The Code also provides the following guidance to authorizing officers on how they should carry out their duties:
259.The Code also ensures that there will be serious consequences for non-compliance with its provisions. Under the heading “Ensuring Compliance” it states:
260.In assessing the role of the authorizing officer in determining an executive authorization we take into account the provisions of the Code of Practice. This is a public document issued by the Secretary for Security pursuant to an explicit provision contained in the ICSO. Under human rights case law it is accepted as being legitimate to have regard to such “law”.[91] 261.The question of whether an officer of the department that is applying for the authorization could be regarded as a person capable of acting judicially in the grant of the authorization, was the subject of discussion by Dickson J in Hunter v Southam Inc. 262.In Hunter v Southam Inc the legislation under challenge empowered the Director of Investigation and Research of the Combines Investigation Branch to search premises and seize from them evidence relevant to matters into which he was inquiring. But this power could only be exercised if the Director could produce a certificate from a member of the Restrictive Trade Practices Commission (RTPC) which can be granted to him on an ex parte application. The question arose of whether a member of the RTPC was a person capable of acting judicially. 263.The Alberta Court of Appeal had concluded “that the Act was not entirely successful in separating the role of the director as investigator and prosecutor from that of the commission as adjudicator.”[92] Put simply, there was not sufficient separation between the applicant for the power and the person granting it. Dickson J adopted a similar analysis and after examining the duties and powers of the RTPC under the legislation he said:
264.This analytical approach commends itself to us in deciding the question we have to answer. We are satisfied that when regard is had to the various provisions of the Code of Practice to which we have referred it can be said that the authorising officer is capable of bringing a degree of independence to his role but we do not believe that this, by itself, is sufficient to enable it to be said that he is a person capable of acting judicially. He is an officer of the Operations Department of the ICAC and is, therefore, a colleague of the officer applying for the authorization. He is, by training and inclination, an investigator. His daily work involves him in performing all the usual investigation tasks of an investigator in the Operations Department. One day he is granting an authorization but the next day, or even the same day, he, or officers acting under his command, could be applying for an authorization. Furthermore, he is only a Principal Investigator which is several ranks below the head of the Operations Department. In the words of Dickson J he does not possess the “neutrality and detachment necessary to assess whether the evidence reveals that the point has been reached where the interests of the individual must constitutionally give way to those of the State.”[94] 265.We now turn to the matters on which Mr Perry relies in order to justify the use of executive authorizations. 266.On 2 August 2006, the proposer of the Interception of Communications and Surveillance Bill, the Secretary for Security, said of executive authorizations[95]:
267.The “less intrusive” justification was elaborated upon in an information paper provided by the Security Bureau to the Legislative Council Panel on Security. It is dated 7 February 2006 and is entitled “Proposed Legislative Framework on Interception of Communications and Covert Surveillance”. It states:
268.We have not been provided with any material elaborating on the justification of operational efficiency but, in our view, that is largely a matter of common sense. 269.Participant monitoring is very much the covert surveillance tool of undercover operations. Undercover operations are themselves very fluid in their nature and not always readily controlled, no matter how much planning may go into them. Their, at times, opportunistic nature can be inconsistent with the delay involved in obtaining a judge’s authorization. The need for a more speedy avenue for obtaining an authorization is no doubt also the reason why the statement in writing is an unsworn document. 270.We are persuaded that justification exists for the use of executive authorizations and unsworn statements in writing. 271.The supervisory function of the Commissioner is primarily set out in the ICSO. Under section 40(a), the function of the Commissioner is:
272.This general function includes conducting “such reviews as he considers necessary on compliance by departments and their officers with the relevant requirements.”[96] On completion of his review the Commissioner must notify the head of any department of his findings[97] and upon being so notified the head of the department must submit a report to the Commissioner “with details of any measures taken by the department (including any disciplinary action taken in respect of any officer) to address any issues identified in the findings”[98]. As is apparent from the already quoted paragraph in the Code of Practice[99] the Commissioner is expected, so it seems, to recommend what disciplinary action should be taken. 273.Under section 51 of the ICSO, the Commissioner may make recommendations to the Secretary for Security on revisions to the Code of Practice to “better carry out the objects” of the ICSO. He may similarly, under section 52, make recommendations to departments to change their arrangements “to better carry out the objects” of the ICSO. 274.For the purpose of performing his functions the Commissioner is given power to require public officers to answer questions and to provide any information or document within the public officer’s possession or control.[100] These safeguards are considerable. 275.We are persuaded that there is justification for non-judicial officers to issue authorizations for covert surveillance and that there are safeguards in place to prevent abuse of this power by departments. However, deciding whether the justification and the safeguards lead to a conclusion that executive authorizations are reasonably necessary cannot be done without regard being had to what it is the executive authorization permits law enforcement to do in infringing the right of privacy. 276.Type 2 surveillance is defined as follows:
277.Under this definition there can be no trespass to private premises or property. The intrusiveness is kept to a minimum and is nothing like the level of intrusiveness of a search warrant. A search warrant, accompanied by a seizure power, permits a trespass onto the private premises of another, a search of the personal property in those premises and the seizure of an individual’s private property from those premises. In terms of the intrusiveness into a person’s privacy the closest covert surveillance equivalent is the entry onto a private premises in order to install a surveillance device within those premises so as to be able to capture images of persons and their activities within the premises or words spoken in the premises. This form of covert surveillance is Type 1 surveillance and must be authorised by a judge. 278.The nature of the covert surveillance in the present case is known as participant monitoring or participant surveillance, that is, the recording of a conversation by a person who is a party to it, and it is typical of what can be authorized for Type 2 surveillance and is, perhaps, the most common form of it. In such a situation the persons who are present know that what they say could be related to others by any one of their number. They have an expectation of privacy and may believe that their conversation is confidential but they also know they have no control over what may happen to their words as a result of the subsequent conduct of those who are a party to the conversation. 279.In HKSAR v Muhammad Riaz Khan[101] the Court of Final Appeal put such a breach of the right of privacy in context when it quoted with approval what had been said in that case by the Court of Appeal. Bokhary PJ, in giving a judgment with which the other members of the court agreed, said at page 240 [12]:
280.There are three features of participant monitoring which are important to remember. The first is that there is nothing unlawful in one of the participants to the recorded conversation testifying to what was said by anyone present. No authorization for covert surveillance is needed to enable a participant to a conversation to give testimonial evidence as to what was said in the conversation. The only reason an authorization is needed is because the participant is employing electronic technology to obtain a recording of the conversation without the knowledge of the other participants to it. In this way the ICSO gives effect to the distinction drawn by La Forest J in the Duarte case, which Cheung and Tang JJA quoted with approval in their judgments in Lam Hon Kwok Popy.[102] 281.Thus the intrusion into the privacy of another is not in revealing the content of the conversation but in the covert recording of it. 282.The third feature of participant monitoring is that, as a consequence of the first two features, the law enforcement agency is not gaining access to evidence it could not otherwise gain. Rather, it is doing no more than gaining what hopefully will be a complete and accurate record of the conversation instead of having to rely on the memory of its witness who is participating in it. 283.The cumulative effect of all these features is to place this form of covert surveillance at the very lowest level of intrusiveness of privacy. That there can be different levels of intrusiveness of privacy we are in no doubt at all and in our view participant monitoring demonstrates precisely that. 284.Given that this proportionality analysis involves taking into account the operational efficiency of departments who are responsible for public safety and security we are of the view that we should employ the “manifestly without reasonable foundation” standard. In doing so we allow a sufficiently wide margin of discretion to the government on the operational efficiency aspect of its justification for the impugned measure. However, this is not done just to cater to the needs of our law enforcement agencies. We bear in minds the words of Lord Steyn in the Attorney Generals Reference (No 3 of 1999) case quoted earlier in this judgment.[103] Where he said that “the purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property.” There is, consequently, a much broader interest at stake it; an interest which is a truly public interest as it involves the whole of Hong Kong. 285.In according a sufficiently wide margin of discretion to the government we bear in mind the words of Ribeiro PJ in the Hysan Development case at paragraph 186:
286.When the justification for the measure is taken together with the after-the-event judicial supervision safeguards that are in place and regard is also had to the fact that the executive authorization only permits low levels of intrusiveness into the privacy rights of others, we are of the view that the measure of executive authorization is one that cannot be said to be manifestly without reasonable foundation. The use of executive authorizations for Type 2 surveillance is, therefore, constitutional. E.6 Entrapment 287.We now turn to the 2nd applicant’s third ground of appeal. 288.We do not see any merit in respect of any of the arguments advanced by the 2nd applicant in support of his third ground of appeal. This was never a case of entrapment. Nothing was done by the ICAC officers to encourage the applicants to commit a crime. The applicants needed persons from whom they could solicit a bribe. The ICAC did no more than provide those persons. 289.Crucial to the success of the undercover operation was the ability of the ICAC to convince the applicants that they could speak openly. Unless they believed that they could trust those present and that those present would be receptive to their overtires then the undercover operation could not possibly be successful. That this involved the ICAC officers in deceitful conduct goes with saying. Did they trick the applicants into believing they would pay a bribe? Of course they did! Did they take advantage of the applicant’s trust in their informant? Of course they did! That is what happens in undercover operations and to pretend otherwise is simply unrealistic. 290.In support of his argument Mr Bruce relied on the judgment of Pincus JA in O’Neill where he said at page 547:
291.We do not find this case relevant to the situation of the applicants. In O’Neill the appellant had confided in Lally of her past attempt to kill her husband. Lally reported this to the police who then concealed a recording device on her and sent her back to the appellant in order to get her to repeat her confession so it could be recorded. It is in respect of this factual situation that Pincus JA made the comment quoted above. 292.The same can be said for the decision of the South Australian Supreme Court in Smith Turner and Altintas. This was also an investigation of a past offence and the approach of the trial judge, Perry J, in ruling that it would be unfair to use a tape recording of inculpatory statements obtained by an agent provocateur, is quite reminiscent of Lam Tat Ming. At page 335 of the report he said:
293.The law for Hong Kong, in any event, is contained in the Court of Final Appeal’s decision in Lam Tat Ming. The O’Neill case, like Lam Tat Ming, involved an attempt by law enforcement to obtain a confession to a past offence. Li CJ, in giving a judgment with which the other members of the court agreed, explained in just such a situation what undercover agents could and could not do in this situation when the right of silence is engaged. 294.But Li CJ emphasised that there was a distinction between undercover officers being employed as part of an investigation of past offences, especially where they were dealing with a person or persons in respect of whom there was reason to believe, and perhaps grounds to arrest, were involved in those past offences, and ongoing offences. 295.There is no merit in this aspect of the 2nd applicant’s third ground of appeal. 296.The other aspect is that the ICAC should have terminated the undercover operation once they had evidence to arrest the applicants. This is an argument which this court has rejected on two prior occasions; once before the judgment in Lam Tat Ming and once after it. 297.In HKSAR v Okey Afunwa Enukwe & Anor[104] there was a relatively long police undercover operation into drug trafficking. During the operation the police undercover officer had numerous contacts with both applicants. Power VP in giving the judgment of the court said:
298.We see nothing in Lam Tat Ming that is contrary to what Power VP said of the right of law enforcement, when investigating on-going criminal activity to “continue their investigations in an endeavour to uncover the full extent of the illicit operation.” 299.The second case is HKSAR v Ng Yau Kau & Anor[105]. This case also involved a police undercover operation into drug trafficking which resulted in the applicants being jointly charged with two counts of trafficking in a dangerous drug. It was argued that when it came to sentence the judge “did not give sufficient weight … to the fact that the applicants should have been arrested after the first transaction, thus preventing the offence the subject of the 2nd count from occurring.” McMahon J, in giving the Reasons for Judgment of the court said at paragraph 12:
300.We agree entirely with what is said in both these cases. For the sake of completeness we should also make it clear that we do not think that an undercover operation into ongoing criminal activity is transformed into an investigation of past crimes simply because a stage may have been reached where sufficient evidence has been acquired to enable prosecution of certain acts that have occurred in the course of the undercover operation. There is no merit in this ground of appeal. F. The five questions raised by the court 301.In the course of discussing the grounds of appeal we have answered questions 1 and 2. We have nothing to add to the information provided to us by counsel in respect of question 3. 302.In respect of question 4 we have upheld the constitutionality of section 61 other than for the part of section 61(4) which provides for an initial application of the statutory disclosure test by the law enforcement agency. We have also demonstrated that, ultimately, the prosecution did apply the disclosure test and did reach its own independent view that none of the redacted material fell within it. 303.That being so, even on the version of section 61(4) which we have reformulated, there was no right of the judge to inspect the material and, consequently, there is no right for this court to inspect it. 304.In respect of question 5 it is clear that the fact that the acts of covert surveillance, being infringements of the applicants’ right of privacy, were conducted in accordance with the law was a matter that needed to be proven. This can be done by producing the authorizations into evidence and exhibiting them at trial or simply by the parties making their grant the subject of an admitted fact. In this latter situation there is no need to exhibit the authorizations if the fact of their grant is admitted. If the fact of their grant cannot be admitted then the ICAC officers who applied for them and to whom they were issued would have to be called. The statements in writing or affirmations should be included in the unused material. 305.The applications with supporting documents will usually not be relevant unless there is some challenge to the legitimacy of the authorization process. In the present case there was no unfairness flowing from whether or not the documents were exhibited; the complaint of unfairness was confined to the non-disclosure of the redacted parts. For the reasons set out in this judgment we have found that this non-disclosure did not impact adversely upon the applicants’ right to a fair trial. G. Disposition 306.Because we have found merit in part of the applicants’ arguments in respect of section 61(4) we grant them leave to appeal their convictions but, for the reasons set out in this judgment, we dismiss their appeals.
26 September 2017 Mr Martin Hui SC, Ag DPP and Ms Audrey Parwani Ag SPP, of the Department of Justice, for the respondent The 1st applicant acting in person Mr Phillip Ross, instructed by King & Co, assigned by DLA, for the 2nd applicant 14 and 15 August 2018 Mr David Perry QC, Mr Martin Hui SC, DDPP, Ms Audrey Parwani SPP and Ms Karen Ng PP, of the Department of Justice, for the respondent Mr Richard Donald, instructed by Ho, Tse, Wai & Partners, assigned by DLA, for the 1st applicant Mr Andrew Bruce SC and Mr Phillip Ross, instructed by King & Co, assigned by DLA, for the 2nd applicant [1] See Part D below. [2] Appeal Bundle, page 1122K. [3] Appeal Bundle, page 1126 I-K. [4] Appeal Bundle, pages 1304-1305. [5] Appeal Bundle, page 1142 S-T. [6] (2003) 6 HKCFAR 336 [7] Appeal Bundle, page 1182 D-F. [8] Appeal Bundle, page 1184 G-S. [9] Appeal Bundle, page 59 P-R. [10] Appeal Bundle, page 60 B-I. [11] Appeal Bundle, page 62E. [12] Appeal Bundle, page 63 I-S. [13] Appeal Bundle, page 65 E-F. [14] Appeal Bundle, page 66 J-T. [15] Reasons for Verdict, at [145], Appeal Bundle, page 68. [16] Appeal Bundle, page 74 Q-S. [17] Appeal Bundle, page 75T-76C. [18] Appeal Bundle, page 77 B-C. [19] Appeal Bundle, page 77 N-O. [20] Appeal Bundle, page 78 C-D. [21] (2012) 15 HKCFAR 232 [22] Reasons for Verdict, at [303], Appeal Bundle, page 101. [23] Reasons for Verdict, at [307], Appeal Bundle, page 102. [24] Part II of the HKBORO bears the heading “The Hong Kong Bill of Rights” and is composed of 23 articles containing various rights. [25] HCMA 432/2009, unreported, 6 May 2010. [26] The equivalent article under the International Covenant on Civil and Political Rights (“ICCPR”) is Article 17. [27] CACC 528/2004, unreported, 21 July 2006. [28] [1990] 1 SCR 30 at [48] [29] In this case Tang JA (as he then was) also approved of the distinction drawn by La Forest J in R v Duarte. [30] Paragraph 39 of the written submissions of the 2nd applicant. [31] (1978) 2 EHRR 214. Mr Bruce also relied on the decision of Huvig v France (1990) 12 EHRR 528 which contained a comment which emphasised the value of involving in the decision making process an investigating judge, who is an independent judicial authority. [32] Commissioner on Interception of Communications and Surveillance Annual Report 2010 to the Chief Executive (2011) paragraph 9.2. [33] (2000) 30 EHRR 441 [34] (1990) DCR (4th) 473 [35] (1994) 75 A Crim R 327 [36] [1995] 81 A Crim R 458 [37] (2011) 52 EHRR 4 [38] Ibid, at [151]. [39] [1994] 2 AC 130 [40] [2005] EWCA Crim 887 [41] Appeal Bundle, pages 1224, 1240, 1262. [42] [2003] 1 Cr. App. R 30 494, 507. [43] (2000) 3 HKCFAR 168 [44] (2012) 15 HKCFAR 232 [45] HKSAR v Lee Ming Tee & Anor (2003) 6 HKCFAR 336 at 389G-H. [46] [2001] 1 WLR 2425 at 2438-2439 [39]-[40] [47] [2005] HRLR 26, 948 at 962-963 [33] [48] (2011) 52 EHRR 4, 207 at 263-264 [184]. [49] (2016) 19 HKCFAR 372 [50] (2015) 18 HKCFAR 467, [22]. [51] (2014) 17 HKCFAR 179 at 183 [7] [52] See Part E.5 paragraphs 243-286 below. [53] See R v Davis [1993] 1 WLR 613. [54] Official Receiver v Zhi Charles (2015) 18 HKCFAR 467, [23]. [55] (2016) 19 HKCFAR 372, at 410, [83]. [56] Ibid, at 424, [136]. [57] Ibid, at 414, [99]. [58] Ibid, at 424-425, [139]. [59] Ibid, at 417, [106]. [60] Ibid, at 417, [108] to 418, [109]. [61] Ibid, at 419, [115]. [62] Ibid, at 421, [122]. [63] Ibid, at 425, [140]. [64] Ibid, at 424, [135]. [65] Ibid, at 404, [67]. [66] Ibid, at 406, [73]. [67] [1993] 1 WLR 613 [68] [2004] 2 AC 134 [69] Ibid, at 148E-F. [70] [2002] 1 WLR 2237 at 2241G – 2242A. [71] [1955] SCR 16 at 23-24. [72] [2009] HRLR 3 at page 73, [60]. [73] R v Preston [1994] 2 AC 130 at 163F-G. [74] Ibid, at 164B-F. [75] (2001) 4 HKCFAR 133 at 150D-H. [76] [2001] 2 AC 91 [77] (2001) 4 HKCFAR 133 at 151H [78] [1994] 2 AC 130 at 164C [79] Ibid, 164D. [80] [2016] 2 HKLRD 1372 at 1404 [95]. [81] See paragraphs 81-82 of this judgment. [82] [1998] 2 Cr App R 242 at 257E [83] [2004] 2 AC 134 at 154-155 [35]. [84] See paragraphs 21-23 of this judgment. [85] See the quotation from Official Receiver v Zhi Charles at paragraph 174 of this judgment. [86] (1984) 11 DLR (4th) 641 [87] Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at paragraphs 66 and 75 which are quoted at paragraph 248 of this judgment. [88] 11 DLR (4th) 641 at page 654 [89] Hunter v Southam Inc [1984] 2 SCR 145, 164. [90] Code of Practice, paragraph 33(b)(iv). [91] See Kennedy v United Kingdom (2011) 52 EHRR 4 [92] Hunter v Southam Inc (1984) 11 DLR (4th) 641, 655. [93] Hunter v Southam Inc (1984) 11 DLR (4th) 641, 656. [94] Hunter v Southam Inc (1984) 11 DLR (4th) 641, 655. [95] Official Record of Proceedings of the Legislative Council, 2 August 2006, page 10101. [96] Section 41(1) of the ICSO [97] Section 42(1) of the ICSO [98] Section 42(2) of the ICSO. [99] See paragraph 184 of the Code of Practice quoted at paragraph 259 of this judgment. [100] Section 53(1)(a) of the ICSO [101] (2012) 15 HKCFAR 232 [102] See paragraph 63 of this judgment. [103] See paragraph 223 of this judgment. [104] CACC 339/1997, unreported, 25 August 1998. [105] CACC 374/2007, unreported, 12 June 2008. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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