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 9 October 2019.
1. In our judgment [1] handed down earlier this year we ruled that section 61(4) of the Interception of Communications and Surveillance Ordinance, Cap 589 (“ICSO”) was unconstitutional because under it the duty to make disclosure of extant information was imposed upon the law enforcement agency rather than the prosecution. We suggested that one option that the court could take is to give a remedial interpretation of section 61(4).
Cited by 2 cases · Cites 4 cases
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CACC 237/2015 [2019] HKCA 1093 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): 1.In our judgment[1] handed down earlier this year we ruled that section 61(4) of the Interception of Communications and Surveillance Ordinance, Cap 589 (“ICSO”) was unconstitutional because under it the duty to make disclosure of extant information was imposed upon the law enforcement agency rather than the prosecution. We suggested that one option that the court could take is to give a remedial interpretation of section 61(4). 2.Section 61(4) provides:
3.In our judgment we said at paragraphs 233 – 234:
4.In response to this proposal the parties have filed written submissions. 5.Mr Gerard McCoy SC, leading Mr Richard Donald, for the 1st appellant, supports the remedial interpretation proposed by the court. 6.Mr Andrew Bruce SC, leading Mr Phillip Ross, for the 2nd appellant,submits that given the legislative history of section 61(4) and its earlier incarnations, and the intent of the Legislature as it appears from the provision, remedial interpretation as a constitutional tool is not available to the court. 7.Mr David Perry QC, leading Mr Martin Hui SC, Ms Audrey Parwani and Ms Karen Ng, for the respondent, urges the court to employ the constitutional tool of remedial interpretation but submits differently drafted remedial interpretations as preferred alternatives to that proposed by the court. 8.At the conclusion of submissions the court reserved its judgment. This is the judgment of the court. The jurisdiction of the court 9.We have set out the relevant legal principles underlying the court’s jurisdiction to invoke the power of remedial interpretation at paragraph 232 of our judgment[2]. None of the parties contest that we have such a jurisdiction or the legal principles underlying it but Mr Bruce submits that the jurisdiction cannot be invoked in the present case. In these circumstances it is not necessary to discuss at great length the case authorities to which we have been referred. 10.Mr Bruce reminds us that there are limits to the constitutional remedy and argues that such limits are applicable to section 61(4). He relies on the English Court of Appeal’s decision in Vodafone 2 v Revenue and Customs Commissioners[3]as containing a helpful summary of both the scope and limits of the remedy. In this case Sir Andrew Morritt C, in giving a judgment with which the other members of the court agreed, at page 90E, adopted the following summary of the scope of the remedy:
11.At pages 90H to 91C Sir Andrew Morritt C adopted the following summary of the limits to the remedy: “ The only constraints on the broad and far-reaching nature of the interpretative obligation are that: (a) the meaning should ‘go with the grain of the legislation’ and be ‘compatible with the underlying thrust of the legislation being construed’: see per Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 33; … An interpretation should not be adopted which is inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment … and (b) the exercise of the interpretative obligation cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate …” 12.From this latter passage Mr Bruce derives the principle that “it is impermissible to arrive at an interpretation that should properly be determined by the Legislature as a result of making policy choices.”[4] Remedial interpretation, he argues, must not effect such a change to the non-compliant legislation as to become an amendment of it. Amendment is, he emphasises, the preserve of the Legislature and the courts must be careful not to trespass on its domain. 13.Relating these principles to section 61(4) of the ICSO Mr Bruce argues that in its non-compliant form its object is to prevent the prosecutor from being given access to any information other than that which passes the statutory disclosure test. The remedial interpretation will, contrary to that object, require the prosecution to be shown all extant information irrespective of the view of the law enforcement agency on whether that information passes the statutory disclosure test. 14.Mr Bruce also submits that by adopting a statutory disclosure test that is narrower than the common law test the ICSO creates a conflict of interest for the prosecutor who may be obliged under the ICSO not to disclose information which would have been disclosable on the application of the common law test. 15.From this position Mr Bruce argues that were the court’s proposed remedial interpretation before the Legislature then interested parties, such as the Law Society of Hong Kong and the Hong Kong Bar Association, would make representations on the policy issues created by having two disclosure tests to be applied by the prosecutor. 16.Mr Bruce also refers to an earlier version of section 61(4) which was ultimately not enacted. Clause 58(4)(a) of the ICSO Bill gave the prosecutor access to intercept information that would now be given to him by our proposed remedial interpretation. However, by enacting section 61(4) the Legislature clearly removed that right and so for this court to now restore it would amount to an act of legislative amendment. 17.Finally, Mr Bruce argues that by giving the prosecutor a right of access to material which the defence cannot see, an inequality of arms situation is created which might advantage the prosecutor by enabling him “to conduct the trial in a way that supports inculpatory material that the accused may not be aware of, and avoid material that may lead to a defence.”[5] 18.For all these reasons Mr Bruce submits that “the prima facie meaning of s.61(4) cannot bear the meaning ascribed to it in the proposed remedial interpretation.”[6] 19.Mr McCoy accepts that we cannot amend the law and that there may be extreme examples of legislation that are not susceptible to a remedial interpretation. But, he submits, the ICSO is not such an example as all the court is doing by its proposed remedial interpretation is transferring the disclosure duty from the law enforcement agency to the prosecutor. 20.Mr Perry supports the court’s entitlement to make a remedial interpretation in respect of section 61(4) and makes the point that section 61(4) is, in its nature, a human rights safeguard as it exists in order to protect the fairness of the trial. To simply strike it down without a remedial interpretation would have the curious consequence of making the ICSO less human rights compliant. This, he submits, demonstrates the illogicality of Mr Bruce’s contention. Discussion: Jurisdiction 21.As we have said in our judgment a key policy decision underlying the ICSO is that the product of a telephone interception may only be used for an intelligence purpose and not for an evidential purpose. This is in contrast to the policy for the product of covert surveillance. Having such a policy ensures that everything to do with telephone interception is kept secret and hence the need for safeguards, one of which is the role of the Commissioner on Interception of Communications and Surveillance (“the Commissioner”). 22.But the Commissioner’s role is to make sure that the power is not abused, to investigate complaints and to report on the operation of the system. The Commissioner has no role in respect of protecting and securing the rights of accused persons to a fair trial that flows from an investigation in which telephone interception has been employed. 23.The drafters of the ICSO were clearly conscious of the impact that the policy of secrecy could have on the fairness of the criminal justice process. As we have explained in our judgment, one of the means by which the common law secures both the fairness of the trial and the openness of the criminal justice process is by imposing on the prosecutor a duty of disclosure. But as openness is the antithesis of secrecy there will inevitably be a tension between the common law duty of disclosure and the need to preserve the secrecy of telephone interception. The ICSO seeks to resolve this tension, without sacrificing the fairness of the trial, by having its own disclosure regime, in substitution for the prosecutor’s common law duty of disclosure, that can then be applied to any extant telephone intercept product. 24.This led to the Legislature enacting a modified form of disclosure that would lessen the risk of the policy of secrecy adversely affecting that process. The two modifications to the common law duty of disclosure were the substitution of a narrower statutory disclosure test for the common law test and the transfer of the application of that test from the prosecutor to the law enforcement agency on whose behalf the interception was conducted. No challenge was mounted to the former modification but a challenge was mounted to the latter one. 25.The Legislature clearly wanted to enact a safeguard, in the form of this modified disclosure regime, that would balance the policy of secrecy with the need to ensure a defendant still received a fair trial through a process that was still sufficiently open. Though modifying the prosecutor’s role in this regime it made it clear that it still wanted to involve the prosecutor in this process. However, it thought that in order to preserve the secrecy of the telephone interception it was necessary to remove the prosecutor from the initial filtering of information and repose the performance of this aspect of the disclosure duty with the law enforcement agency. It was only in this respect that the Legislature enacted a disproportionate provision. 26.By our remedial interpretation we are not creating a disclosure regime where none existed before; we are not altering the disclosure test and making disclosable what was previously not disclosable; we are not involving in the disclosure process a person who is not already involved and we are not enabling a person to see secret information who could not previously see it. 27.What we are doing is involving the prosecutor at an earlier stage of the disclosure process and, by so doing, enabling him to have access to more information than he would previously have had. 28.We are not persuaded that the object of section 61(4) is the narrow one of excluding the prosecutor from the disclosure process; rather it is the broader object of enacting a disclosure regime that will protect the policy of secrecy by limiting the persons who will be aware that telephone interception has taken place. By involving the prosecutor in the way we propose we do not believe that we shall be undermining the policy of secrecy. 29.We do not accept that a prosecutor would have any difficulty in applying two disclosure tests; one to telephone interception information and the other to all other materials acquired in the course of the investigation. Nor do we accept that the prosecutor becomes professionally embarrassed by a conflict of interest situation being generated by the existence of the two separate disclosure tests. Two separate disclosure duties will now be imposed on the prosecutor and we see no reason why he should not be able to perform both of them as a minister of justice. 30.Key to our judgment is an appreciation of the very special role that the prosecutor plays in the criminal justice process. His minister of justice role elevates him beyond a mere advocate for a party in an adversarial forum. An advocate in such a forum represents only the interests of his client. A prosecutor, on the other hand, represents the interests of justice. He is not the advocate of government and he is certainly not the advocate of the law enforcement agency from whose investigation his prosecution might flow. The only interests he seeks to advance and protect are the interests of justice. In doing so we do not see that he would be subject to any conflict of interest or professional embarrassment for the interests of justice will prevail over all other interests. Nor do we think that he would be incapable of performing his multi-faceted role or that by our remedial interpretation we would be imposing on him a burden greater than he should be required to shoulder. The law already demands much from him but the additional burden we now ask him to shoulder is consistent with, not contrary to, and indeed falls within, the duties he currently performs. 31.For these same reasons we reject the argument that the prosecutor cannot be trusted to conduct a fair trial once he possesses interception information. We have confidence in prosecutors performing the role required of them by the law to the highest professional and ethical standards. 32.Nor do we accept, for the reasons set out in our judgment, that by becoming privy to what is contained in interception information, an inequality of arms is created between the prosecutor and defence. 33.We do not need to see other provisions which the Legislature rejected to convince us that the Legislature made a deliberate decision to repose the initial disclosure duty with the law enforcement agency. This is obvious from the provision it did enact. Section 61(4) is clearly a deliberate departure from the common law position. But the fact that the Legislature chose a particular course does not mean that the course they chose cannot be altered by remedial interpretation if the court later finds that it is unconstitutional. If that were so then the scope of this constitutional remedy would be very narrow indeed. 34.We are satisfied that by making use of the constitutional tool of remedial interpretation in the way we propose in respect of section 61(4), we are not indulging in legislative amendment and trespassing into the exclusive domain of the Legislature. The alternative interpretations 35.Mr Bruce does not suggest an alternative interpretation and Mr McCoy supports that proposed by the court. Mr Perry, on behalf of the respondent, however, has proposed two alternatives to the interpretation proposed by the court. His first is as follows:
36.His second alternative remedial interpretation is:
37.The italicised passages in both versions of the respondent’s alternative remedial interpretations reflect the difference between them and the court’s proposed remedial interpretation. 38.Mr Perry’s alternative remedial interpretations are prompted by a concern that the interpretation proposed by the court could create practical difficulties for both law enforcement agencies and the prosecution. The practical difficulties are that there could be a huge amount of material generated by a telephone interception and to require the prosecution to go through it all would be excessively burdensome to it. This, Mr Perry explains, is what he is seeking to achieve by the inclusion in his first alternative interpretation of the words:
39.The court expressed its concern that this may still involve the law enforcement agency in making an evaluative judgment as to what it should disclose to the prosecution. In response to this concern and to meet the practical difficulties that could arise from there being a large volume of information, Mr Perry said:
40.This approach is reflected in his second alternative remedial interpretation which contained the words:
41.The court then engaged Mr Perry in whether the words he proposed were really necessary in order to address the concern he had. We set out the exchange that then ensued in its entirety so the concerns of the respondent can be accurately understood:
42.In response to Mr Perry’s concerns we should make it clear that the object of our remedial interpretation is to involve the prosecutor in the section 61(4) disclosure process just as he is presently involved in it when discharging his common law duty. The only difference is that he will apply the ICSO test of disclosure. 43.When performing his common law duty the prosecutor is performing a duty personal to him for which the courts will hold him personally accountable. But the courts have always recognised that in carrying out that duty he will be assisted by officers of the investigating law enforcement agency. They will know what they have acquired in the course of their investigation and so they will be in a position to reveal that material and discuss it with the prosecutor. The prosecutor will know how he will be presenting his case and will know what are the issues in the case and may be able to anticipate what may become an issue and what may be the defence at trial. 44.Using his professional judgment the prosecutor will decide (1) what is clearly outside the disclosure test and does not require his further scrutiny, (2) what may be disclosable and will require his further scrutiny, and (3) what is clearly disclosable. The first and third categories of material should be readily apparent but the second category will require his careful consideration. How he conducts the disclosure exercise with the assistance of the law enforcement agency will be for him to decide. The fact that there might be a lot of such material does not absolve him from discharging his duty. Prosecutors are accustomed to investigations generating a lot of disclosable material, especially in white collar crime and corruption investigations. The volume of such material does not entitle the prosecutor to dispense with or dilute his common law duty and there is no reason why it should entitle him to dispense with or dilute his ICSO disclosure duty. 45.It is vital to the effectiveness of the ICSO disclosure regime that the law enforcement agency does not perform a preliminary filtering exercise in which it exercises an evaluative judgment as to what is disclosable and then only reveals to the prosecutor that which it decides is disclosable. It can, by all means, provide the prosecutor with lists of materials if the prosecutor thinks that would be helpful, and can indicate its preliminary view as to what on the list may be disclosable, but it must reveal to the prosecutor all extant information and must comply with any request by the prosecutor to be given access to it. 46.With these considerations in mind we must determine which remedial interpretation best encapsulates and advances the object the court seeks to achieve. We are not persuaded that the additional words in either of the respondent’s alternative interpretation add anything to the court’s proposed interpretation. 47.The additional words of the respondent’s first alternative may suggest that the law enforcement agency has a filtering role in respect of the extant information by determining whether disclosure “may be required so as to facilitate the prosecution in discharging its duty ….” For the reasons we have given, the law enforcement agency does not have such a role. 48.The second of the respondent’s interpretations employs the words “shall be brought to the attention of the prosecution”. In so far as this may suggest that it is the limit of the law enforcement agency’s responsibility we find it equally unattractive. 49.In the result we are not persuaded that we should depart from our proposed interpretation and it is that interpretation which now becomes the interpretation of the court. The use of a special advocate 50.At paragraph 201 of our judgment[7] we mentioned the possibility of a court using the device of a special advocate to assist it in determining applications for disclosure of redacted material where the redactions reveal that telephone interception has taken place and intelligence has been derived from it. 51.In his helpful submissions to us Mr Perry sounds a note of caution that the special advocate would be so limited in what he could do that he could not, in reality, provide any meaningful assistance to the court. 52.Although we received observations on this issue from both Mr Perry and Mr McCoy, it was by no means fully argued. Conscious that anything we say in this judgment is only obiter dicta and is said without the benefit of full argument we are not persuaded that this is an appropriate occasion to engage this issue.
Mr David Perry QC, Mr Martin Hui SC, Consultant Counsel, Ms Audrey Parwani SPP and Ms Karen Ng PP, of the Department of Justice, for the respondent Mr Gerard McCoy SC and Mr Richard Donald, instructed by Ho, Tse, Wai & Partners, assigned by DLA, for the 1st appellant Mr Andrew Bruce SC and Mr Phillip Ross, instructed by King & Co, assigned by DLA, for the 2nd appellant [1] HKSAR v Yu Lik Wai William [2019] 1 HKLRD 1149 at 1222; [2019] HKCA 135 [2] Ibid, at 1221. [3] [2010] Ch 77 [4] Paragraph 14 of the submissions of the 2nd appellant. [5] Paragraph 33 of the submissions of the 2nd appellant. [6] Paragraph 50 of the submissions of the 2nd appellant. [7] Ibid, at 1212. | |||||||||||||||||||||||||||
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