R. v. Yu Yem Kin

HCCC000111/1993

CRIMTNAL CASE NO. 111 OF 1993

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HEADNOTE

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BILL OF RIGHTS ORDINANCE CAP.383 - ADMISSIBILITY OF EVIDENCE OBTAINED DURING RAIDS ON PREMISES UNDER S.52 DNAGEROUS DRUGS ORDINANCE CAP. 134 - ARTICLE 5 NOT APPLICABLE TO SEARCH OF PREMISES OR SEIZURE OF PROPERTIES OF THE INDIVIDUAL AS DISTINCT FROM ARREST AND DETENTION OF THE PERSON - ARTICLE 22 NOT APPLICABLE AS S.52 DOES NOT DISCRIMINATE AGAINST THE PERSONAL ATTRIBUTES OF SUSPECTS OF DANGEROUS DRUGS OFFENCES AS DISTINCT FROM THE NATURE OF THE OFFENCE - ARTICLE 14 DELIBERATELY OMITTED ADOPTION OF ARTICLE 8(2) OF THE COVENANTS FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1950 - "UNIVERSAL CONCEPT OF JUSTICE" RELEVANT IN UNDERSTANDING THE BROAD FUNDAMENTAL SPIRIT BEHIND EACH HUMAN RIGHT BUT NOT HELPFUL IN INTERPRETATION OF THE EXTENT. AND IN PARTICULAR THE QUALIFICATIONS, A PARTICULAR CONSTITUTION PLACES ON SUCH RIGHTS "UNLAWFUL INTERFERENCE" MEANS INTERFERENCE THAT IS NOT PERMITTED BY THE DOMESTIC LAW OF HONG KONG AND NOT ANY UNIVERSAL OR INTERNATIONAL CONCEPT OF UNLAWFULNESS - LAWFULNESS OF A STATUTE IS A "BALANCING EXERCISE" BETWEEN THE INDIVIDUAL AND THE SOCIETY - PREREQUISITE OF A REASONABLE SUSPICION AND NOT A MORE STRINGENT STANDARD UNDER S.52(1) (E) NOT ARBITRARY OR UNLAWFUL- WARRANT OR A WRIT OF ASSISTANCE NORMALLY A PREREQUISITE FOR SEARCH OF PREMISES OR SEIZURE OF PROPERTY-TEST OF REASONABLE NECESSITY AND MINIMLM INTRUSION - THE POWER OF WARRANTLESS SEARCH AND SEIZURE IN ALL CIRCUMSTANCES UNDER S.52(1)(E) WITHOUT QUALIFICATION OF REASONABLE IMPRACTICALITY IN OBTAINING A PRIOR WARRANT RENDERS THE SECTION ARBITRARY AND UNLAWFUL - S.6(1) OF CAP.383 - RELEVANT EVIDENCE OBTAINED BY AN EXECUTIVE ACT IN INFRINGEMENT OF HUMAN RIGHT NOT PER SE INADMISSIBLE - NO PREJUDICE OR UNFAIRNESS SHOWN - IN EXERCISING THE COURTS DISCRETION HELD EVIDENCE ADMISSIBLE

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

(Criminal Case No. 111 of 1993)

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Coram: Hon Jerome Chan, J, in Court

Dates of hearing: 3, 4, 7, 8 and 9 February 1994

Date of ruling: 9 February 1994

Date of handing down of reasons: 21 February 1994

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REASONS FOR RULING

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1. This is an application by the third accused to exclude evidence obtained by the police during searches of the office premises of PNK Development Ltd on 24.8.1992 and 6.11.1992. I shall first set the scene for the application.

THE FACTS

2. The Narcotics Bureau of the police had since the mid-1980s been interested in a group of people suspected to be involved in the manufacturing and trafficking of "ice". Lee Chau Ping and Yu Yem Kin were amongst this group of suspects. The investigation mounted by the Narcotics Bureau was particularly directed against these two when Chief Inspector Boucher was put in charge in 1990. Several suspects were arrested in mainland China in May 1992 that led to information coming to the knowledge of the Narcotics Bureau pointing at the involvement of PNK in the drugs operations in China. This was followed by Chief Inspector Boucher's visit to China. The Narcotics Bureau officers conducted an investigation against the arrested suspects in China, including interviewing those suspects. As a result of the said investigation in China, Chief Inspector Boucher came to the conclusion that the time was ripe to take action against the suspects in Hong Kong. The sporadic observations kept in Hong Kong against the office of PNK were intensified during the China trip. Chief Inspector Boucher, who until then thought there was insufficient evidence to bring a prosecution against the Hong Kong suspects, came to the view that as a result of the investigation in China there existed sufficient justification to take action against PNK's office. Relying on the powers conferred upon him by s.52 of the Dangerous Drugs Ordinance Cap. 134, he led a team of officers and broke into PNK's office by picking the locks and conducted a search therein. As a result of the search various exhibits that the prosecution is relying on against the third accused were seized. Subsequent to the first search, Senior Inspector Cheng conducted a follow-up search of the same premises, again relying on the same statutory power.

3. It is the evidence of Chief Inspector Boucher that though the statute empowers any police officer to exercise the power of entry, the self-imposed internal rules of the police in fact curtailed the ambit of the statute by reserving such statutory powers to an officer of the rank of inspector of police or above. He said he had reasons to believe that there were articles liable to seizure on the premises of PNK. He said he suspected there would be a large quantity of "ice" there. After entry was effected, a cursory search revealed no presence of dangerous drugs. However, other exhibits that he believed to be connected to drug activities were discovered. He thus ordered seizure of those items. In addition, he was aware that the Chinese authorities were looking for artifacts stolen from an ancient tomb. He located some stones appearing to be tomb stones of ancient graves and he felt obliged to seize them for the suspected offence of handling stolen properties though he feared such seizure would tip off the occupants of the police raid thus compromising his operation. The premises was not put under surveillance after the first raid. Senior Inspector Cheng said he conducted the second raid because he suspected that the filters of the air-conditioners of the premises might contain traces of dangerous drugs. The said filters had not been seized in the first raid as the police did not wish to disturb the premises beyond absolute necessity to avoid detection of the police raid by the occupants. Another reason for the return to the premises was to enable the Financial Investigation Group to look into the financial affairs of the company.

THE OBJECTION

4. Mr Marash objected to the admissibility of the evidence obtained as a result of the raids firstly on the ground that s.52 contravenes Articles 5, 14 and 22 of the Bill of Rights and is thus repealed by the Hong Kong Bill of Rights Ordinance Cap. 383. He further complained that exercise of the statutory power in the manners as described by the officers was unreasonable and unfair and evidence obtained as a result there of ought to be excluded not only for contravening the rights guaranteed by the Bill of Rights, but also in the exercise of the court's residuary power in its inherent jurisdiction to ensure a fair trial. He raised as incidences of unfairness and unreasonableness: (i) the failure of the officers to request the watchman of the building, who would probably be available if so requested, to witness the search and seizure of the exhibits so that there would be evidence from an independent source available to the defence; (ii) the failure of the officer to keep a contemporaneous record of the details of the seizures in his notebook in breach of standing orders, or to retain for production in court the contemporaneous notes he made on loose pieces of paper that he had thrown away after making his statement on Pol. 154 and compilation of the exhibits list and proper sketches - making it most difficult if not impossible for the defence to challenge his evidence; and (iii) the failure of the police to secure the third accused's attendance to witness the second search and seizure that took place after his arrest - making it impossible for him to testify to any impropriety in obtaining the said exhibits. It is submitted that such conducts of the police are unfair and unreasonable in that they prejudice the third accused in his defence. The remedy to this, he submits, lies in the exclusion of the evidence.

THE STATUTE

Section 52 of the Dangerous Drugs Ordinance, Cap. 134, provides:

"52. (1) For the purposes of this Ordinance, any police officer and any member of the Customs and Excise Service may -

(e) enter and search any place or premises if he has reason to suspect that there is therein an article liable to seizure."

It has been suggested by Mr Marash at one stage that s.52 does not require the person exercising the statutory power to hold a suspicion that is founded on reasonable grounds. I do not believe that is the proper way to interpret a statute purporting to confer a power on the executive to intrude into the life of an individual. "Reason to suspect" must necessarily be construed to mean a "reasonable reason" by objective standards and not just any subjective reason of the officer, however unreasonable it may be objectively. There is no other controversy surrounding the interpretation of the statutory power, or how it operates.

THE CANADIAN APPROACH

5. I have been referred to quite a few Canadian cases where the courts held that provisions conferring similar powers on the authorities based on a "reasonable belief" ( which Mr Marash suggests is a higher standard than a reasonable suspicion ) were in contravention of the Canadian Charter of Rights. In particular, my attention was drawn to two cases involving a right to enter onto premises (other than a dwelling-house) without a warrant pursuant to s.10(1) of the Narcotic Control Act 1970. In both cases, the Canadian statute was considered against s.8 of the Canadian Charter that guarantees the right to be secure against unreasonable search and seizure (see: R v. Noble (1984) 16 C.C.C. 146 and Collins v. The Queen (1987) 33 C.C.C.1). Notwithstanding the warning given by the Privy Council against rigid application of the Canadian approach in Hong Kong (see: A.G. of Hong Kong v. Lee Kwong-kut [1993] 3 WLR 329), and the danger of applying results of Canadian authorities in Hong Kong without due regard to the possible variance of local conditions and requirements; the analysis by the Canadian courts of the conflicting interests of the state and the individual under similar statutory provisions to combat narcotic offences can be helpful and inspirational.

6. In Noble, supra, s.10(1) of the Canadian Act was struck down for being in contravention of s.8 of the Charter. In doing so, the Ontario Court of Appeal had duly considered the observation of the Commission of Inquiry into the Non-Medical use of Drugs that law enforcement in the field of drugs would be seriously handicapped if the police were deprived of these special powers.

The Commission had also concluded that the special powers were apparently necessary because of the particular difficulties that the police face in the field of the non-medical use of drugs and that they must be considered as a special cost of law enforcement in that field. Martin J.A., delivering the judgment of the court, nevertheless held at page 159:

"It is undeniable that the ease with which dangerous drugs may be concealed or transferred, and the fact that much of the traffic in dangerous drugs is highly organized, make the detection and suppression of the traffic in dangerous drugs particularly difficult for law enforcement officers The particular obstacles encountered by law enforcement officers in the investigation of drug crimes is, of course, a factor to be taken into account in determining whether the powers of search or seizure conferred by Parliament in relation to the enforcement of legislation with respect to dangerous drugs are reasonable. It is self-evident, however, that the particular obstacles confronting law enforcement officers in the field of drug crimes cannot justify the granting of powers of search or seizure which are unreasonable in their extent and contravene the constitutional standard of reasonableness prescribed by s.8 of the Charter."

7. In Collins, supra, it was further held that not only must the statutory power itself be a reasonably justifiable encroachment of the rights guaranteed by the Charter, the manner of exercise of the power must also be reasonable.

8. In another Canadian case, the court had the occasion to consider another statutory encroachment of human rights in the state's efforts to combat another evil of modern society. The Supreme Court of Canada accepted in Hunter v. Southam (1984) 11 D.L.R. 641 that for a power to search and seizure to be reasonable a system of prior authorisation by a body that is capable of acting with neutrality and detachment is normally a prerequisite. Dickson J., delivering the judgment of the court, observed as follows:

"If the issue to be resolved in assessing the constitutionality of searches under s.10 were whether in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s.8. That purpose is, as I have said, to protect individuals from unjustified State intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the State to demonstrate the superiority of its interests to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from State interference to the interests of the State in advancing its purposes through such interference.

I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals' expectations of privacy.

Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a pre-condition for a valid search and seizure." (at p.653).

After adopting the American Supreme Court decision in Katz v. United States (1967) U.S.347 that under the Fourth Amendment of the American Constitution a warrantless search is prima facie "unreasonable", the learned judge concluded that s.8 of the Charter requires the party seeking to justify a warrantless search to rebut this "presumption of unreasonableness" (at page 654). As to the qualification of the body to be entrusted with such responsibility of prior authorisation, the leaned judge said:

"The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the State and the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the State are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorising the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner. At common law the power to issue a search warrant was reserved for a justice. In the recent English case of Inland Revenue Com'rs et a1. V. Rossminster Ltd., [1980] 1 A11 E.R. 80 at p.87, Viscount Dilhorne suggested that the power to authorize administrative searches and seizures be given to 'a more senior judge'. While it may be wise, in view of the sensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, I agree with Prowse J.A. that this is not a necessary pre-condition for safeguarding the right enshrined in s.8. The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially." (at p.654)

Criticising s.10 of the Canadian Act, the learned judge said at p.656:

"In my view, investing the commission or its members with significant investigatory functions has the result of vitiating the ability of a member of the commission to act in a judicial capacity when authorizing a search or seizure under s.10(3). This is not, of course, a matter of impugning the honesty or good faith of the commission or its members. It is rather a conclusion that the administrative nature of the commission's investigatory duties (with its quite proper reference points in considerations of public policy and effective enforcement of the Act) ill accords with 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."

And on the standard required of the test, the learned judge had this to say:

"Requiring the authorizing party to satisfy himself as to the legality of the inquiry and the reasonableness of the director's belief in the possible existence of relevant evidence, would have the advantage of substituting an objective standard for an amorphous one, but would, in my view, still be inadequate. The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the State in such intrusions come to prevail over interests of the individual resisting them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the State and limit the right of the individual to resist to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure...........

The State's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement............In cases like the present, reasonable and probable grounds, established upon oath, to believe an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s.8 of the Charter, for authorizing search and seizure." ( at pp. 658 to 659)

THE HONG KONG APPROACH

9. The constitutionality of s.52(1)(e) has not been dealt with in any reported case since the coming into existence of the Hong Kong Bill of Rights Ordinance. However, a provision in the Securities and Futures Commission Ordinance, Cap. 24 that confers on the Securities and Futures Commission more extensive powers of intrusion on the privacy of an individual was considered by the Court of Appeal against Article 14 in In Re Lee Kwok-hung [1993] 2 HKLR 51. Section 33(4) of Cap. 24 provides that a "person under investigation or any person who is reasonably believed or suspected by the investigator" to have in his possession or under his control document or record that contained or is likely to contain relevant information shall attend an interview as required by the investigator and shall give to such investigator all assistance in connection with the investigation, including the production of document or record. However, it is to be noted that answers given by that person during such an interview are not admissible in any subsequent criminal proceedings brought against him (s.33(6)), though they can be used in an inquiry in the Insider Dealing Tribunal that can attract heavy pecuniary penalties and disqualifications. It should also be borne in mind that s.36 in fact required a search warrant to be obtained from a Magistrate for entry onto premises reasonably suspected to contain relevant document or record.

10. Adopting the observation of Kempster, J.A. in R. v. Sin Yau-ming [1992] 1 HKLR 127 at 159, that the Hong Kong Bill of Rights Ordinance should be viewed with a "universal concept of justice" and not the domestic law of Hong Kong, Litton J.A. warned that "This does not mean, however, that the court is, willy nilly, importing foreign jurisprudence into Hong Kong; ultimately, the court is construing the words in a Hong Kong statute and, in the task of interpretation, giving it true effect" And after considering a Canadian case on the subject, he observed that the result was to be achieved by "a proper construction of the Hong Kong Bill of Rights - not a minute analysis of the Canadian Charter".

11. Ruling that s.33(4) does not confer an arbitrary power contrary to Articles 5(1) or 14, Litton J.A. said at page 58:

"In any case, the requirement to attend an interview under s.33(4) cannot possibly amount to arbitrary detention. There is nothing arbitrary about the exercise of powers under s.33(4). Before an investigation can be set out on foot, the Commission must first have reason to believe that the matters enumerated in paras (a) to (d) of s.33(1) need investigation. Further, the powers under sub-s.(4) can only lawfully be exercised by the investigator if he has reason to believe that the interviewee has in his possession information relevant to an investigation under the section. It is conceivable that an investigator may exceed his powers; he may even act arbitrarily. In these circumstances an interviewee in protected by the legal procedure for judicial review under Order 53. The possibility of an investigator acting arbitrarily is no measure of the reasonableness of the law which gives him the power to act."

12. In the consideration of whether the statutory interference of the right to privacy under Article 14 is lawful or otherwise, it is common ground that a "balancing exercise" is involved. It is a balance of "the interest of the individual on the one hand against the interests of the society on the other, and in so doing remembering the broad purpose of the Bill of Rights which is the protection of the individual" (at p.61 per Litton J.A.). In coming to that conclusion, the following passage in the judgment of La Forest, J. in Thomson Newspapers v. Director of Investigation [1990] 67 DLR (4th Ed.) 161 at p.220 was quoted with approval:

"In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state."

13. Whilst agreeing with Litton J.A. on the issue of "arbitrary", Cons V.P. held that the reference to "law" in para.(2) of Article 14 is a reference to the domestic law and not a universal concept. He held that the article (and Article 15) should be construed with reference only to that law that is to be found in relevant statutes or in the common law.

THE PRIVY COUNCIL APPROACH

14. When these courts are being haunted daily by issues born of the Bill of Rights, it is necessary for judges, as well as practitioners, to bear at the forefront of their minds the warning of Lord Woolf in Lee Kwong-kut at p. 346:

"While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issures involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature: see Reg. v. Downey, 90 D.L.R. (4th) 449, 466, and Reg. v. Chanlk, 62 C.C.C. (3d) 193, 222."

In the light of the heavy reliance placed by the Hong Kong courts on the Canadian cases, Lord Woolf observed that:

"Such decisions can give valuable guidance as to the proper approach to the interpretation of the Hong Kong Bill, particularly where the decisions in other jurisdictions are in relation to an article in the same or substantially the same terms as that contained in the equivalent provision of the Hong Kong Bill. However, it must not be forgotten that decisions in other jurisdictions are persuasive and not binding authority and that the situation in those jurisdictions may not necessarily be identical to that in Hong Kong." (at p.338)

"..............in applying the Hong Kong Bill, it is not necessary, at least in the vast majority of cases, to follow the somewhat complex process now established in Canada in order to assess whether an exception to the general rule that the burden of proof should rest upon the prosecution throughout a trial is justified. Normally, by examining the substance of the statutory provision which is alleged to have been repealed by the Hong Kong Bill, it will be possible to come to a firm conclusion as to whether the provision has been repealed or not without too much difficulty and without going through the Canadian process of reasoning......

In a case where there is real difficulty, where the case is close to the borderline, regard can be had to the approach now developed by the Canadian courts in respect of section 1 of their Charter. However, in doing this the tests which have been identified in Canada do not need to be applied rigidly or cumulatively, nor need the results achieved be regarded as conclusive. They should be treated as providing useful general guidance in a case of difficulty. This is particularly true in relation to what was said in Reg. v. Chaulk, 62 (3d) 193. 216-217, about proportionality since it is the need to balance the interests of the individual and society which are at the heart of the justification of an exception to the general rule." (at pp.343-344)

"If (the judge) had adopted, as he should have done, a broad unified approach to the application of article 11(1) to section 25, he should have had no difficulty on the material which was before him in coming to the conclusion that the section did not contravene the article. The fact that he found this process as complex as he did illustrates the disadvantage that can flow from seeking strictly to emulate the current approach of the Canadian Supreme Court."

ARTICLE 5

Section 8 Article 5 of the Hong Kong Bill of Rights Ordinance provides:

"(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

15. It is submitted by Mr Marash that the right to security of person under Article 5 includes a right to be secure against unreasonable search or seizure similar to s.8 of the Canadian Charter. He drew my attention to the Canadian case of R. v. Racette 39 C.C.C. 289 where the Saskatchewan Court of Appeal held that the s.8 right under the Charter is but one component of the right to security of the person under s.7. I cannot accept that view to be correct when construing the ambit of Article 5(1), though it is similar to s.7 of the Charter. I adopt the view of Cons J.A. in Lee Kwok-hung (at p. 62) that Article 5 "is intended to cover, and cover only, as the judge below found, physical interference with the liberty or person of the citizen". Given the widest possible purposive construction, Article 5 is never intended to apply to the search of premises or seizure of properties of the individual, as distinct from arrest and detention of the person of the individual. In the premises, I find the objection based on Article 5 to be ill-conceived and without merits.

ARTICLE 22

Article 22 provides that:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

16. Mr Marash suggests that Article 22, given its proper interpretation, would prohibit discrimination against suspects involved in dangerous drugs offences. It is submitted that s.52 of Cap. 134 discriminates against suspects of dangerous drugs offences as a class in that it confers unusual and exceptional powers on the authorities in dealings against them. Again I am unable to accept his submission. Section 52, which deals with investigatory powers, is no different from the numerous statutory provisions stipulating different penalties of varying degrees of severity based on a consideration of a multitude of factors including the seriousness of the offence and the harm done to the society. On a proper construction, s.52 is no more discriminatory than the statutory provision that imposes mandatory life imprisonment on murderers as distinct from other lesser criminals. If the section can be described as "discriminatory" at all, it is so against the nature of offence it is dealing with and not the nature of the offender perpetrating such an offence. It does not concern itself with any status of the person as referred to in Article 22 at all. It is concerned with the type of criminal activity independent of any personal attribute of the offender envisaged in Article 22.

ARTICLE 14

Article 14 deals with, inter alia, the right to privacy and provides:

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

17. Mr Marash submits that it has been clearly illustrated by the Canadian cases that s.8 of the Charter which provides for the right to be secure against unreasonable search or seizure is but an example of the more general right to privacy (see Hunter v. Southam). I have not been referred to any decided case in Hong Kong on this very issue save the Court of Appeal decision in Lee Kwok-hung, where the meaning of "privacy" had been considered in relation to share dealings in the stock market. Cons V.P. observed, at page 63, that he was "not aware of any clearly defined or long established right with regard to privacy, which has always been a grey area of our law". "Privacy" has as its ordinary meaning "freedom from disturbance or intrusion" (see The New Shorter Oxford English Dictionary 1993). The spirit of a concept of privacy has always been enshrined in the civil law in areas relating to intrusion of private rights of an individual over his property or of his person. The laws of tort and of property are bountiful with examples of the law's respect for a right to be free from unjustified and unwarranted intrusion of an individual's right over his person or property. It is abundantly clear to me that given its proper construction, the right to privacy must necessarily include a right to be secure against intrusion of an individual's rights over his properties such as search and seizure. In the premises, Article 14 confers on an individual the right to be free from arbitrary or unlawful interference in the form of search or seizure.

"ARBITRARY" Mr Halley submits that an "arbitrary" act is an act which is capricious, despotic, imperious, tyrannical or uncontrolled, quoting from the debates amongst the member states at the time of the drafting of the International Covenant on Civil and Political Rights reported in Guide To The "Travaux Preparatories" Of The International Covenant On Civil And Political Rights. It is interesting to note en passant that during the drafting of the covenant relating to arrest and detention, United Kingdom sought, unsuccessfully, to replace the reference to "arbitrary" on the basis that the word lacks sufficient precision. A similar meaning as quoted above have been given to this word in the The New Shorter Oxford English Dictionary. This meaning is also consistent with the rationale of the ruling of the Court of Appeal in Lee Kwok-hung.

"UNLAWFUL" Litton J.A. in Lee Kwok-hung adopted the view of Kempster J.A. in the construction of Article 11(1) in Sin Yau-ming and held that in considering the word "unlawful" in Article 14(1) the test of "universal concepts of justice" should be applied. Cons V.P. disagreed and held that Article 14 is to be "construed with reference only to that law which is to be found in relevant statutes or in the common law" (at p.63).

18. There are inevitable differences in concepts of morality and human values between varying cultures and civilisations. To say the least, there is undoubtedly a vast difference between Western and Eastern philosophies and religions on a great number of moral values and priorities. Concepts on the precise ambit that entrenched human right provisions should encompass is no exception. Culture and traditions are inevitably very much a part of the law of the land, asserting great influence in the shaping of it. This explains why the international covenants had not been reproduced verbatim in exactly identical terms in all countries that adopted them into their constitutions. The international covenants were adopted by each individual country with such modifications as were warranted by the domestic conditions and requirements, as well as domestic concepts on what ought to be the precise ambit of each human right to be entrenched in its constitution. It is clear from the records of the debates amongst the member states that there were few unanimous agreements on the choice of words that ultimately appear in the international covenants. Thus, in the interpretation of such constitutions, the courts ought to give effect not only to the fundamental "universal" spirit embodied in the international covenants upon which the constitution is modelled; but also to give due weight to the deliberate modifications and departures in the constitution from such international covenants. It should also be accepted that when the draftsman use a particular word in the constitution he was using it in the way that word is to be understood in that particular country rather than any "international meaning" of that word. The function of the court is to give effect to its own constitution and not to give effect to any part of international covenants that have not been incorporated into its own constitution. It is thus inevitable that the courts would have to construe its own constitution by the application of its own rules of construction. This, I believe, was one of the reasons for the warning given by the Privy Council in Lee Kwok-kut Furthermore, is the "universal concept of justice" the courts in Canada and America have now come to apply not basically a creature of Western philosophy and religion unadulterated by any consideration of Eastern philosophies and religions?

19. It is perhaps necessary to apply some form of "universal concept of justice" in understanding the broad fundamental spirit behind each human right. But I doubted that any reference to a "universal concept of justice" can be helpful in the interpretation of the extent, and in particular the qualifications, a particular constitution places on such rights. This is also true in the interpretation of "unlawful interference" under Article 14. I do not believe the draftsman or the Legislative Council had in mind any universal concept of justice when they drafted and brought the article into being. Is there a universal standard of lawfulness for interference with the right to privacy? I do not believe even the Canadians and Americans are unanimously agreed on any universally applicable standard on the extent the state should be permitted to encroached on such right.

20. It is important to note the different ways Article 8 of the Covenants For The Protection of Human Rights And Fundamental Freedoms 1950 was adopted by different jurisdictions into their constitutions. Article 8 of the international covenant provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

This article of the international covenant was never reproduced in any similar form in the Canadian Charter. It was accepted by the Supreme Court of Canada that s.8 of the Charter, which confers a right to be secure against unreasonable search or seizure, is in fact dealing with one specific aspect of the right to privacy only (see Hunter v. Southam). There is no reference to "in accordance with the law" in s.8. The test used therein is one of "reasonableness". It is plain from the context of Article 8 of the international covenant that the "law" referred to therein must be a reference to the domestic law of the country. Or else, there would not be the need to add the rider that follows immediately to provide for the standard required of such "law" that would justify the interference on the ground of necessity. It is thus plain from article 8 of the international covenant, which is strengthened by a consideration of s.8 of the Canadian Charter, that there is no recognition or acceptance of any set of international law for justifying the interference.

21. The court must give effect to the deliberate omission by the draftsman and the legislature from our Article 14 any reference to the international standard specifically described in Article 8 of the international covenant when they adopted such a human right in our Bill of Rights. The reference was to "unlawful" interference. If the intention was to give effect to the international standard embodied in the international covenant, one would have expected that a drastically different article would appear in our Bill of Rights. Notwithstanding s.2(3) of Cap. 383, the omission is deliberate and must be taken to be for the obvious reason that those qualifications specifically described in Article 8 of the international covenant were not intended to be included in our Bill. In addition, I also rely on the observations of Cons V.P. in Lee Kwok-hung. I have no doubt in my mind that the "unlawful interference" referred to in Article 14 of our Bill of Rights is a reference to interference that is not permitted by the statutes and common law of Hong Kong and not any universal or international concept of unlawfulness.

22. For the purpose of Article 14, I am contended to accept that such a broad and fundamental principle as requiring all interference by the state of an individual be justified by reasonable necessity and be kept to the minimum measure of intrusion should be applied. This test of the "lawfulness" of a statute is but one illustration of the "balancing exercise", the spirit of which was approved in Lee Kowng-kut and Lee Kwok-hung. This concept of justice is also well enshrined in the rules governing the power of search and seizure in common law firmly established before the coming into existence of any international covenant of human rights. The concepts of human rights have never been foreign to the common law. Nor do I believe there exists any difference of real substance between this concept of justice in common law and the international standard as described in Article 8 of the international covenants. The real substantial divergence between the common law and the international concept lies in the doctrine that the intention of the legislature manifested in the form of legislation is superior to the wisdom and experience of judges embodied in the common law i.e. legislative supremacy. Without this arbitrary supremacy, I am unable to find any distinction of real substance between the common law and the international concept of justice, particularly in the balancing exercise which is required in the construction of the Bill of Rights. The concept of legislative supremacy apart, common law as augmented by rules of equity is by definition reasonable, fair and just; and undoubtedly live up to any universal concept of justice.

23. Before I consider the merits of s.52(1)(e) I would first dispel Mr Marash's criticism of the absence of evidence from the prosecution setting out the factual circumstances in Hong Kong that would justify intrusion of the right to privacy in dangerous drugs legislations. To echo the words of Lord Woolf in Lee Kwong-kut: "(the judge) had ample knowledge to hold the balance appropriately between the individual and the government in relation to (the section) without any evidence being called. The need to prevent the laundering of the proceeds of drug trafficking is common knowledge" (at p. 346). How much more true it must be in respect of the need to curtail drug trafficking itself.

24. The first objection against s.52(1)(e) is that the requirement of a mere suspicion, albeit based on reasonable grounds, is too low a standard to justify an intrusion of privacy. Despite the distinguishing factors between s.33 of Cap. 24 and s.52(1)(e), the rationale expounded by Litton J.A. in Lee Kwok- hung quoted above, which Cons V.P. and Wong J. also concurred with, is equally applicable to s.52(1)(e). Though reference was only made to "reason to believe" in the passage quoted, in view of the ruling the observation must have been directed also to a "reason to suspect" as well. I am wholly satisfied that there is nothing per se arbitrary about a statutory power which can only be exercised upon the existence of a reasonable suspicion on the part of the person entrusted with such power. After giving the Canadian cases due consideration, I have nevertheless come to the conclusion that a reasonable suspicion, albeit admittedly not a very high standard, is a reasonably justified standard sufficiently stringent to protect the interest of an individual in balancing the expectation of the individual under Article 14 against the needs of the society expressed in s.52(1)(e). Drug offences are most difficult to detect since the victims of this hideous crime are unlikely to be voluntary informants. Drugs are easy to conceal and difficult to detect, particularly in the crowded local environment. Drug offenders are often detected by searches on the street conducted by alert police officers using their experience and knowledge of way of life in the particular locality. Often such street searches will lead to a necessity of search of the premises of the suspect on whom dangerous drugs had been found. Drugs are extremely easy to be disposed of down the toilet bowl with the assistance of a few seconds' delay in effecting entry to the premises. The circumstances is such that a sufficiently liberal discretion must be entrusted to police officers if they are to discharge their duty in the war against drugs efficiently and effectively. Too high a standard will be an unwarranted deterrent to a police officer in the discharge of his function to combat such serious offences. It is hardly conducive to the enforcement of the law against drugs if a police officer is to be required to determine on the spot whether the evidence before him constitutes reasonable belief rather than reasonable suspicion before he can be satisfied that he has a lawful right to effect entry into a premises. I therefore hold that the prerequisite of a "mere" reasonable suspicion under s.52(1)(e) rather than any other more stringent standards is amply justified and does not per se render the power conferred thereunder to be arbitrary or unlawful.

25. It is also submitted that s.52(1)(e) is objectionable for failing to provide for a prerequisite of a warrant prior to the execution of such powers. I cannot agree that the absence of an authorising body that is totally independent from the agency exercising the power of search and seizure would necessarily render s.52(1)(e) an arbitrary or unlawful interference with the right to privacy. The power of search and seizure is well established in common law. Such power is exercisable without a warrant under certain circumstances. For example, a warrantless search incidental to a lawful arrest is permissible (see Leigh v. Cole (1853) 6 Cox C.C. 329 at 332). A warrant is a prerequisite for any search and seizure pursuant to s.50(7) of the Police Force Ordinance Cap.232, though a warrantless entry is permissible under certain prescribed circumstances specified in other parts of the section. The common law power of a police officer for search and seizure has in general been enshrined in the statutes. There can be no doubt that a warrant or a writ of assistance is normally a prerequisite for a search of a premises, or for seizure, both in common law and under statutes as a general rule. However, it is obvious that there must necessarily be exceptions in special circumstances to enable a police officer to effectively enforce the law or to bring criminals to justice. It has been conceded by Mr Marash that a police officer in hot pursuit of a suspect must be allowed to break into premises without a warrant to effect an arrest; and perhaps also to prevent the commission of a felony.

26. For the reasons given, I hold that the power of warrantless search and seizure can be justified in combating drug offences in some circumstances. However, that does not mean that it can be justified in all circumstances. Applying the test of reasonable necessity and minimum intrusion, the power of warrantless search and seizure in all circumstances conferred by s.52(1)(e) must necessarily fail. The concept of "reasonable impracticality" has never been foreign to common law jurisdictions. This formula has often been applied to statutes to circumscribe what would otherwise have been unreasonably wide powers. Section 28 of the Drug Trafficking Offences Act 1986 which prescribes the conditions under which a circuit judge may issue a warrant for search of a premises contained such references to "not practicable" to communicate with the person who is able to produce the material sought or allow access to such material. It is interesting to note that under the said Act a police officer's power of a warrantless search only exists in relation to vehicles and vessels. The search of premises for drugs upon a reasonable suspicion is only permissible under a warrant issued by a justice of the peace upon information on oath. If s.52(1)(e) is to survive the test of reasonable necessity and minimum intrusion, its unreasonably wide ambit must be appropriately trimmed down to within limits of necessity and reason. The present case is a classic situation where there is no reasonable need for a warrantless search. The investigation and gathering of evidence by the police would not suffer any disadvantage at all if a warrant was to be obtained first, the premises having been kept under surveillance for some time and appeared to have been abandoned. A provision in the statute that such warrantless search and seizure is only to be permissible if it would not be reasonably practicable to obtain a warrant would bring the operation of the section within the bounds of reason and necessity. Such a requirement is based on common sense and not on fine legal definitions and should not pose any practical problem to any police officer on the street. In coming to this conclusion I have not lost sight of what was said by Litton J.A. In Lee Kwok-hung that the possibility of arbitrary execution of a power is no measure of its reasonableness (at p.58), and that the "worst scenario" is not a proper criteria (at p.61).

27. As there is no such reasonable prerequisite in s.52(1)(e), I hold that it violates Article 14 of the Bill of Rights and is thus repealed by s.3(2) of the Hong Kong Bill of Rights Ordinance insofar as it purports to confer such a power on "any police officer". I specifically leave open the position of "any member of the Customs and Excise Service" as different considerations may apply to them and it is not necessary for me to decide the matter.

THE REMEDY

28. Mr Marash submits that when there is a wrong there must be a remedy, and the remedy here is to exclude the evidence obtained as a result of the unlawful search and seizure. As a general proposition, it is perhaps correct to say that where there is a wrong there must be a remedy. The obvious remedy here is a civil suit against the authority for infringement of human right. The exclusion of evidence obtained by an executive act carried out in violation of a human right is not a remedy that must necessarily flow in all circumstances from such an unlawful act.

29. Apart from repealing the infringing statute, the Hong Kong Bill of Rights Ordinance confers upon the court the jurisdiction to "grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances" (s.6(1)). The court has a discretion to do justice as the circumstances of the case require bound only by the limits of its jurisdiction.

30. It is Mr Marash's submission that it was held by the Privy Council in The Queen v. Lam Chi-ming [1991] 2 HKLR 191 that unlawfully obtained evidence is not admissible. The appeal in the case was decided on the eve of the enactment of the Hong Kong Bill of Rights Ordinance. I am unable to read the decision in the suggested manner. That was a decision on the admissibility of evidence uncovered as a result of admissions made in an involuntary confession. The rule against admitting involuntary confession is a well established exception to the general rule that evidence that is relevant is admissible. The common law, as it stands before the enactment of the Hong Kong Bill of Rights Ordinance, is well established in relation to the discretion to exclude admissible evidence. The general principle is that all evidence that is relevant is admissible as stated by Lord Goddard, C.J., in the Privy Council decision of Kuruma v. Reginam [1955] 1 A11 E R 236 at 239:

"In their Lordships' opinion, the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case, there are decisions which support it and, in their Lordships' opinion, it is plainly right in principle."

31. The court there went on to consider the case of R. v. Leatham (1861) 8 Cox C.C. 498. Mr Marash referred me to a judicial comment that Crompton J. in R. v. Leatham had perhaps misunderstood the Scottish law which he was placing reliance on. I do not share such a view, but it really matters not whether he did or not. It is clearly the opinion of their Lordships in the Privy Council that this proposition of law is "plainly right in principle". I respectfully accept the principle pronounced in Kuruma.

32. But this general principle has been eroded away in some respects by the creation of such exceptions as rules against hearsay and involuntary admissions. These are exceptions justified by principles that are fundamental to the proper administration of criminal justice. The inherent unreliability of hearsay evidence is the justification for its exclusion. Such unreliability coupled with the right of an accused to silence and not to incriminate himself, the presumption of innocence which requires the prosecution to prove the guilt of the accused and the importance of public confidence in proper conduct by the authority towards a citizen in official custody are the justifications for the exclusion of involuntary admissions. I accept that the door is never closed to further exceptions.

33. However, the decision in Lam Chi-ming as clearly stated by Lord Griffiths at page 198 is that R. v. Ng Wai-ming [1980] HKLR 228 was wrongly decided in that "the evidence that the accused took the police to the place where the money was hidden ought not to have been admitted as it was part of an inadmissible confession" (my emphasis). The unfairness relied on by the Privy Council was the violation of the privilege against self-incrimination and not any unlawful manner of obtaining the evidence as such. It was there dealing with a very narrow issue and I am unable to read into it any interpretation that would admit a drastic deviation from the well established principle relating to the admissibility of relevant evidence. The Privy Council was merely expanding the well established principle concerning involuntary confessions to cover evidence forming part of that inadmissible evidence though physically outside the four corners of that piece of paper that is the confession. I do not accept that the common law position as regard the admissibility of unlawfully obtained evidence has been changed by Lam Chi-ming in the manner suggested. Though the court has a discretion to exclude such evidence, it is not the case that such discretion must be exercised in favour of an accused in all situations involving unlawfully obtained evidence, it is still a matter of discretion for the court.

34. Subsequent to the adoption of the Bill of Rights, this general principle should be reviewed in the light of the legislative intent expressed in that ordinance. Section 3 of the Hong Kong Bill of Rights Ordinance repeals only statutes and not the common law. It leaves the courts to decide what other remedy ought to be granted in addition to the repeal of the relevant statute. Common law is a creature of the courts that evolves with time and changing conditions. The only difference s.6(1) has brought to the common law is that as it is now emancipated from legislative supremacy in matters involving human rights, it should evolve in a direction that would give effect to such rights as guaranteed by the Bill of Rights.

35. Our Bill of Rights does not provide specifically, as did in s.24(2) of the Canadian Charter, for the exclusion of evidence obtained by an infringing executive act. However, even in the Canadian Charter exclusion of the evidence is not automatic. Such evidence is only to be excluded if it is established that "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". Though we do not have such a specific mandatory provision in our ordinance, our common law does provide a discretion along a similar direction. Bearing in mind the direction the common law should now evolve as regard the discretion to exclude admissible evidence, it may probably not be necessary to deal with the statutory discretion under s.6(1) separately from the common law discretion in most cases.

36. Though there is no justification to uproot the well-established common law principle and to hold that evidence that is relevant but obtained by an infringing executive act must per se be inadmissible as a matter of law, in order to give proper effect to the purpose for which the ordinance came into existence, an infringement of human rights guaranteed by the Bill of Rights must be a ground upon which a court can in its discretion exclude such evidence which would otherwise be admissible. It matters not whether it be considered as a new ground on its own or just an example of unfairness. The burden would be upon the one who seeks to justify the exclusion. There is no real distinction between the statutory discretion and the common law discretion in this particular context.

THE DISCRETION

37. Mr Marash submits that if such evidence is admissible as a matter of law, then the court should exclude it in the exercise of its discretion to exclude admissible evidence to do justice.

38. The discretion was succinctly summed up by Lord Goddard in Kuruma as:

"a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused." (at p.239)

Evidence obtained by a trick was cited as an example where unfairness would justify exercising the discretion in favour of an accused. There are numerous other examples one can give where the discretion had been exercised on the ground of unfairness.

39. It is necessary to consider in some detail the circumstances under which the warrantless search and seizure came into being. The premises had been under police surveillance for some time before the day of entry. People connected with the business that occupied the premises had been under investigation for a long time. The investigating team was in possession of substantial information as to drug manufacturing and trafficking activities involving the suspects as well as the premises as a result of their visit to China, including interviewing the suspects arrested by the Public Security Bureau. If Chief Inspector Boucher would have laid an information upon oath to a Magistrate for a search warrant, it is totally inconceivable that such an application would have been refused. In the premises, the lack of a warrant is a mere technical infringement of the accused's right to privacy. He in fact suffers no disadvantage as the consequences would have been exactly the same had a warrant been applied for. I can see no unfairness or injustice to the accused for this technical infringement. On the contrary if evidence is to be excluded for this technical infringement per se the administration of justice would be brought into disrepute.

40. The third accused also alleges that he suffers prejudice and unfairness because the police had failed to conduct the search in the presence of, an available independent witness (the watchman) on the first search, and of the accused himself on the second search that was conducted after his arrest. Despite what Mr Marash submits there is no evidence that the police had breached any internal rules or standing orders in this respect. Whatever rule or order there may be, they are related to search and seizure at the accused's own premises, not the premises of a third party. Rules and standing orders apart, neither do I find the suggestion that the police should arrange for the watchman or the accused to witness a search and seizure at the business premises of a business in which neither the watchman nor the accused apparently owns, stands to reason. Furthermore there is no indication that the authenticity of the exhibits so seized would be challenged. Nor is there any indication that it would be the defence case that the exhibits were not found on that premises or at the positions alleged. Mr Marash was complaining of being deprived of a chance to be able to challenge the evidence of the police officers who conducted the search because of the lack of independent witness or the absence of his client at the search. He said he is now unable to challenge this evidence because of this failure on the part of the police. I find no merits in such allegations at all. I am unable to see any unfairness or injustice in the complaint under consideration.

41. Mr Marash also complained that the absence or destruction of contemporaneous record of the detail particulars of the search and seizure rendered admission of exhibits found unfair. What happened was that instead of making immediate entries in their notebook of all details concerning the search and seizure, the only record kept in the notebook was a brief summary of the operation. Notes were made on pieces of paper, temporary labels, and rough sketches drawn at the scene. Subsequently these contemporaneous records were thrown away by the officers after they had transferred the information on those records onto other formal records of a more presentable type for production in court e.g. Pol.154 statement forms, formal exhibit labels and neatly drawn sketches. There is admittedly a police standing order against a failure to keep such contemporaneous records. But as Detective Senior Inspector Cheng said this is frequently not observed. Mr Marash complained that he was deprived of the chance of being able to make use of contemporaneous records to challenge the officers' evidence. It is, as is the case of his former complaint, a matter going to the credibility of a witness's evidence. It has never been suggested to the officers during cross-examination in the voire dire that the evidence obtained in the circumstances described by them is unreliable. There was also no suggestion made to such officers that the exhibits were not found on that premises or at the alleged positions. Mr Marash has not even begun to show any circumstances to support his hypothesis. I do not know of any reported case, nor can Mr Marash direct my attention to any, where relevant and probative evidence has been excluded simply because the defence had been deprived of a possible opportunity to challenge the credibility of such evidence on the assumption that the witness is not telling the truth or could be wrong without the existence of some circumstances justifying the possibility of such an assumption.

42. R. v. Quinn [1990] Crim. L.R. 581 is not a case supporting such a proposition. On the contrary, the decision in that case supports the proposition that the court should look at the actual circumstances of the particular case at hand and consider the alleged prejudice against such factual backgrounds rather than to consider vague and unsubstantiated allegations on hypothetical basis. In that decision, the possible handicap in cross-examination was but one of the factors considered. The possibility of a mistake arising as a result of the defect is another factor considered.

43. The position of the disputed evidence in the case as a whole and whether it could be tested in other ways was also considered. What was held in that case was that in the consideration of unfairness, the court should take into account such factors as whether "one side is allowed to adduce relevant evidence which the other side cannot properly challenge or meet, or whether there has been an abuse of process". Admission of the evidence was upheld on the appeal despite complaints of real prejudice supported by the factual circumstances in that case.

44. All Mr Marash relied on was a single factor of deprivation of a possible opportunity to challenge the evidence of the officers by other evidence on the hypothesis that such evidence might have been tainted with impropriety or unreliability. Such hypothetical "prejudice" in vacuum falls way short of establishing unfairness or injustice. It may be quite a different matter if there exists justification that such evidence could be unreliable and thus prejudicial. It has not even been suggested in the cross-examinations in the voire dire that the authenticity of the exhibits is in doubt, or that there was any sinister reason for the said police failures, or that such evidence is unreliable. The whole complaint is simple based on the deprivation of a chance to enhance the defence if there had been police impropriety or unreliability. I decline to uphold any submission that relevant and probative evidence should per se be excluded if the defence has been deprived of a possible chance to enhance its defence or to weaken the prosecution's case, however fanciful, without regard to the particular circumstances of the case and a consideration of the likelihood of such evidence being in fact tainted in any way, or that affording the defence the opportunity allegedly being deprived of would make a difference to the quality of the evidence in question. I find no substance in the "prejudice" alleged and am unable to see any unfairness or injustice in admitting the evidence complained of.

After giving due consideration to all the circumstances of the case and taking into account cumulatively all the complaints made, I am convinced that the admission of the evidence would not be unfair or unjust. To hold otherwise would bring the administration of justice to disrepute and make the Bill of Rights and the common law an instrument of injustice rather than justice.

Representation:

Mr Halley, Senior Assistant Crown Prosecutor, for Crown

Mr Marash and Mr D. Yeung, inst'd by Anthony Kwan & Co., for Third Accused