HKSAR v. Lam Tat Ming and Another

DCCC 529/1997

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 529 OF 1997

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Coram: His Honour Judge Gill in Court

Date of Hearing: 29 January, 31 January - 2 February 2001

Date of Ruling: 7 February 2001

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R U L I N G

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1. On 20 May 1998 Lam Tat Ming (D1) pleaded not guilty to one charge of soliciting an advantage (1st charge) and three charges of accepting an advantage (2nd to 4th charges). Ng Sai Hing (D2) pleaded not guilty to one charge of accepting an advantage (5th charge).

2. Following the pleas the trial began. At the outset I was informed that the prosecution case relied on admissions or other inculpatory statements coming from the defendants made a long time after the offences had allegedly been committed. The defendants gave notice that they wished to challenge the admissibility of such evidence on the grounds that it was not adduced voluntarily or, if found to be voluntary and thus admissible, it should be rejected on the grounds that its use in evidence would be unfair.

3. To deal with these challenges I conducted a voir dire. Before coming to that I shall state briefly the background of the case.

4. The defendants are serving officers in the Hong Kong Police Force. D1 is an inspector; D2 is a sergeant. The prosecution's case was explained in the opening by prosecuting counsel, Mr Delaney.

5. A man in these proceedings known only by his nickname Ngau Wing approached officers of the ICAC in October 1994 and complained that in 1992 D1 had solicited an advantage of $450,000 in return for protection for decoration work to be undertaken in a housing development under construction. Then on 3 separate occasions spanning late 1992 and early 1993 he paid to D1 $150,000 being the protection money asked for. In the fullness of time these allegations were to result in the first four charges to which I have referred. But having laid his complaint Ngau Wing disappeared for nearly 2 years. Then, in June 1996, he was relocated, brought back to the ICAC, videod under caution and arrested for offering an advantage to a public servant.

6. What happened next resulted in the compilation of the evidence that the defence was to challenge. There were no bank records or other documents to corroborate Ngau Wing's allegations of payments having been made and received. And he was a man of bad character whose unsupported account might not be enough upon which to found convictions. So senior officers of the ICAC resolved to mount an undercover operation whose primary object was to gather additional evidence going to Ngau Wing's allegations.

7. Ngau Wing agreed to participate. By now he was arrested and expecting to be charged. He was a known former convict. He had a record for the offences of theft, for being a member of a triad society and for obstruction of a police officer. In addition, he admitted to other criminal activity including running illicit gambling establishments, loan sharking and criminal intimidation.

8. In return for his co-operation he and the Attorney General became parties to a series of participating informant agreements under which he was granted immunity from prosecution for criminal offending. But that immunity expressly did not extend to the prospective prosecution of the offence for which he had been arrested.

9. Over a period of several months spanning September 1996 to April 1997 Ngau Wing was instructed to make contact with D1 and, when he came to feature, D2, and to meet them. He telephoned them both from phones located in the offices of the ICAC. The calls were monitored and recorded. Ngau Wing was told what to say.

10. When meetings were set up he was told to attend and what to say. He was accompanied by an ICAC undercover operative known for the purposes of this trial as Heung Kai. Ngau Wing adopted the part of a senior triad society member and Heung Kai played the role of his follower and minder. Prior to each meeting they were briefed. Ngau Wing was instructed to talk to the defendants about what happened in 1992 and 1993 and in doing so attempt to draw from them admissions or other inculpatory material that might go towards establishing a case against them in respect of the corruption he had complained of. Heung Kai was instructed to do likewise within the constraints of his role as Ngau Wing's subordinate.

11. During the course of each meeting both were wired with tape recorders and the contents of the conversations entered into were recorded. In all, there are 39 tapes of these conversations. These have been transcribed into written Chinese and then in turn translated into English.

12. It was then and remains the prosecution's case that the operation was successful. During the course of the meetings D1 made incriminating remarks to corroborate Ngau Wing's original complaint back in 1994 of asking for and being paid bribes. D2 came to be implicated also, to the extent that he was with D1 when one of the 3 payments of $150,000 made by Ngau Wing was handed over and he was paid half of that.

13. The operation became covert at the end of April 1997, having spanned some 7 months. Following the last of the meetings both defendants were arrested and charged, D2 facing the fifth charge arising out of his alleged participation.

14. It was the 39 tapes, the transcripts and the translations into English that the prosecution wanted Ngau Wing and Heung Kai to give an account of and produce in evidence. This was the subject of the voir dire. Before it began I was informed that the defence made no concessions as to the authenticity and accuracy of this evidence; in particular as to what was said and by whom. It intended to put the prosecution to strict proof, in the event this material came to be admitted. But for the purpose of the voir dire the documents arising from the tapes were before me on the assumption that they were accurate records of what was said and by whom.

15. The evidence revealed that during the course of the operation Ngau Wing was paid and received out of pocket expenses. He became a participant in a witness protection scheme administered by the ICAC. His family was housed in a safe house. His immunity from prosecution was extended to include immunity in respect of the part he played in the offences for which the defendants had been charged.

16. Following the voir dire I made certain findings of fact which I now repeat verbatim:-

(a) Ngau Wing was under express instructions to seek out D1 and, when he came into the frame, D2.

(b) His purpose was specific. His instructions were specific. He had to so engage the defendants that they might make confessions, admissions or otherwise reveal their involvement in crime undertaken several years ago. He was required to lie to maintain the cover and to encourage incriminating evidence and, along with Heung Kai, did so.

(c) For the purpose of the exercise Ngau Wing was an ICAC operative whose expenses were paid by ICAC, whose movements, conduct, what he was to say and what he was to ask, were specifically directed and controlled by ICAC. Heung Kai was and is an ICAC officer commonly utilised as and experienced in the field of an undercover agent.

(d) Ngau Wing, under threat of prosecution but with the prospect which did eventuate of immunity, was committed to do as he was told. He was anything but a free agent. So whilst pretending to be, as it were, one of the boys he was, to all intents and purposes for the duration of this operation, of the ICAC.

(e) The subterfuge spanned a number of months and a number of telephone calls and meetings. It was in fact destined to last for as long as was necessary for the objective to be achieved.

17. In essence, though the defendants had not been arrested and were not in custody, the circumstances were no different from that where a suspect is encouraged to make a statement explaining his involvement or absence of that in an offence that has been committed but without the rules and procedures that protect his right to avoid self-incrimination.

18. I found as a fact that the defendants had singly and together been the victims of a deception in that as a result of lies, misleading information and other trickery which developed to cover a number of months they were led into making self-incriminating statements.

19. I applied what I believed to be the appropriate test on the issue of voluntariness as laid down in the Court of Appeal case of R. v. Lam Yip Ying [1984] HKLR 419, namely that it was beholden on the prosecution to prove an admission is voluntary in the sense that it was not obtained by threats, promises, oppression or deception. I ruled the incriminating content in the tapes, transcripts and translations and the accounts of Ngau Wing and Heung Kai to be involuntary and inadmissible as a consequence.

20. At that point the prosecution formed a realistic view that there was insufficient further evidence upon which to found a conviction in respect of any of the five charges and closed its case. I was invited to acquit the defendants and did so.

21. The prosecution appealed my ruling in the voir dire by case stated. The stated case raised four questions of law. The first three of these went to the issue of voluntariness and admissibility. In the appeal the Court of Appeal ruled that I had misapplied the concept of deception in the test of voluntariness and that I ought to have found that the incriminating material was provided voluntarily and was therefore admissible.

22. The fourth question posed went to the issue of residual discretion. It asked whether, upon the facts found to have been proven, it would have been open to me to exclude the challenged evidence in the exercise of my discretion based in unfairness, it having been implicit in my decision founded in involuntariness that I found that manifest unfairness had been practised upon the defendants by the undercover operatives. The three Justices of Appeal in separate judgments answered 'yes' to that question and dismissed the appeal.

23. But the prosecution remained dissatisfied, and sought leave to appeal to the Court of Final Appeal. The Appeal Committee of that court certified the following question for consideration:-

24. What is the scope of the discretion vested in a judge to excluded an admission made to a law enforcement officer by an accused person which is proved to be voluntarily made and where the admission was made in circumstances which:

(1) the accused was not under arrest or in custody at the time of making the admission; and

(2) the accused was unaware at the time of making the admission that the person to whom it was made was a law enforcement officer, and had the maker been aware of the true identity and status of the officer or the agent of the officer he may not have made the admission?

25. When the matter came before the Court of Final Appeal the case stated incorporating a summary of my findings of fact following the voir dire were amongst the papers. But the evidence including the 39 tapes, transcripts and translations was not, and the court found it not possible to express a view as to how in this case I should have exercised my discretion. Thus the court confined itself to establishing the proper approach in the exercise of the residual discretion to exclude a voluntary confession with particular reference to one made in circumstances posed in the certified question. Having done so it then allowed the appeal, reversed the acquittals and directed that the trial be resumed before me. This amounted to a direction that I consider all the facts according to the approach as laid down by the Court of Final Appeal in deciding the exercise of my judicial discretion.

26. This has been a laborious introduction. It serves to explain why more than 2 1/2 years after this case left this court it is back before me, with my first task to deal with the direction of the Court of Final Appeal.

27. The trial has reopened still in the voir dire mode. The superior courts having found against me on the issue of voluntariness, it follows that the evidence adduced from the witness box and the tapes transcripts and translations provisionally produced are admissible, but subject to my over-riding discretion to exclude if I am satisfied that not to do so would be unfair.

28. There has been no further evidence adduced, and no additional testing by cross-examination of that which is already in. I have had the benefit of full submissions from counsel for D1, now Mr Macrae SC, counsel for D2 still, as before, Mr Chandler and prosecuting counsel Mr Delaney. The defence position on the authenticity and accuracy of the tapes and transcripts remains the same.

29. The Court of Appeal judgments are reported in Secretary for Justice and Lam Tat Ming & Another (No. 2) [1999] 2 HKLRD 735. The Court of Final Appeal judgment, given by the Chief Justice, is at Secretary for Justice and Lam Tat Ming & Another [2000] 2 HKLRD 431. When I refer to them I shall do so as Lam Tat Ming CA and Lam Tat Ming CFA to avoid confusion.

30. Lam Tat Ming CFA is now authority for how the residual discretion should properly be exercised. The question posed at page 435:-

"Where a law enforcement agency through an undercover operation obtained from a suspect a confession which is held to be voluntary, how should the court approach the exercise of this residual discretion?"

was answered at page 447:-

"Ultimately, it has to be answered by reference to the common law in Hong Kong. In summary, in exercising the residual discretion to exclude a voluntary confession, the judge has to consider whether it would be unfair to the accused to use the confession against him at trial and unfairness is to be judged against what is required to secure a fair trial for him. The protection of his right of silence is a principle of a fair trial. In the context of an undercover operation, whether his right of silence has been jeopardised is relevant.

31. Elsewhere, the judgment dealt with the particular circumstances of confessions made during the course of an undercover operation. At p. 442:-

" The law recognises that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies; particularly their use when the criminal activities are ongoing but also their use after crimes are completed to obtain evidence to bring the criminal to book. The use of undercover operations plays an important part in society's struggle to combat crime especially serious crime, whether it be corruption, trafficking in dangerous drugs or terrorism. But the success and indeed viability of such undercover operations depend upon the concealment of the true identity of the law enforcement officer in order to establish the appropriate relationship with the alleged wrongdoers. They therefore unavoidably involve elements of subterfuge, deceit and trickery. The law accepts that law enforcement agencies may find it necessary to resort to tactics of that kind.

Where those tactics result in a confession that is voluntary and therefore admissible, the court will have to consider whether to exclude it in its discretion in discharge of its duty to ensure a fair trial for the accused. Thus, the court may exclude the confession where the confession or evidence of it is so unreliable that no jury properly directed may convict; for example, where the recording is so poor or in the absence of a recording, the recollection of the undercover agent is so poor that it should not be allowed to go before a jury.

And the court may exclude it where the right of silence of the accused has been infringed. In the context of an undercover operation involving a suspect, when could it be said that his right of silence is infringed? In answering this question, the law has to apply practical commonsense.

Where the undercover officer plays a passive role and hears or overhears the confession or records it, there can be no basis for rejecting it. .... It has been volunteered freely without interrogation on the part of the officer even though he has misrepresented his identity thereby inducing the suspect to believe that he is speaking to a person who is not a person in authority.

The real problem arises where the undercover officer plays an active role in procuring the confession from the suspect by asking questions. If it were not an undercover operation, the suspect would have to be cautioned reminding him of his right of silence and enabling him to make a choice whether or not to speak. With an undercover operation, this obviously could not be done. In this situation, once the officer actively questions the suspect, we enter into an area which may engage the exercise of the residual discretion.

How it should be exercised will depend on what follows. If all the officer does is to draw attention to the incident which gives rise to the offence charged, in the absence of any other relevant circumstances, there is no persuasive reason for excluding a confession made. The officer is doing no more than providing an opportunity for the suspect to speak. If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession. Such an interrogation would constitute a derogation of the accused's right of silence and thus prejudice his fair trial. Whether the conversation amounts to an interrogation would have to be determined having regard to all the circumstances."

And finally at page 444:-

"It is necessary to emphasise that the residual discretion is a judicial discretion which is to be exercised in a principled way. But the occasions where its exercise may have to be considered will involve a wide variety of facts and circumstances. Ultimately, the courts will have to apply the proper approach in a commonsense way."

32. In Hong Kong the leading case on the topic of admissibility of challenged evidence incorporating admissions and the exercise of the residual discretion has been Lam Yip Ying. The case has been a hallmark one because in the judgment given by the then Chief Justice in 1984 he laid down what the duties of a trial judge are when faced with a challenge on admissibility of a confession and how, if necessary, the residual discretion to exclude should be exercised. He referred to the classic authorities on the topic which I shall call shortly Ibrahim, Sang and Ajodha, and said at p. 422:-

"To summarize these authorities, a statement is involuntary and so inadmissible if it was obtained by threats, promises, oppression or deception (to give fraudulent misrepresentation a simpler description)."

33. Then on the issue of residual discretion at p. 423:-

"Unfairness may arise either by virtue of the circumstances in which a statement was taken or because its use in evidence would be unfair to the defendant."

So, he propounded two situations when the residual discretion to exclude might be exercised.

34. In Lam Tat Ming CFA the Chief Justice said that the substitution of the word 'deception' for 'fraudulent misrepresentation' was unsatisfactory as it connoted a wider fraud than that perpetrated on the character of the document in question and may have been why I went astray. I pause to say that he is quite right about that.

35. He also said the first limb of the test of unfairness is no longer appropriate and must be discarded. So the test now is only as provided for in the second limb, namely, as to whether or not to use the evidence against the accused would be unfair; unfairness to be judged against what is required to secure for him a fair trial.

36. The judgment went on to state that English authorities, whilst post 1984 decided with reference to the Police and Criminal Evidence Act 1984 (PACE), provide helpful illustrations of where the line may be drawn, because the discretion now invoked by statute in UK is similar to that at common law, namely that it must be exercised so as to secure a fair trial for the accused.

37. A case cited as being on the acceptable side of the line is The Queen v. Jelen and Katz (1990) 90 Cr. App. R. 456. In that case the police invited a person to engage another, a suspect who had not been arrested or questioned, in conversation, regarding the crime. The conversation was recorded without the suspect's knowledge. During the course of it he incriminated himself. The judge at first instance was invited to exercise his discretion to exclude the resultant admissions on the grounds that not to do so would not secure a fair trial for the accused.

38. In his ruling rejecting that application he said, referring to the accused and the witness by their names Jelen and Dempsey:-

"I am certain that Mr Jelen would not have spoken in the terms in which he did if he had known the conversation was going to be recorded. However, that does not, in my judgment, affect the admissibility of the matter. It is said that it was a deliberate trap and there may be some element of entrapment about it, in the sense that the mere fact that the conversation was to be recorded was something that Mr. Jelen knew nothing about. But, of course, nobody knew what Mr. Jelen was going to say in the conversation. Nobody advanced misleading information to Mr. Jelen to make him speak in terms which he otherwise would not have spoken in, unless, it is said, that Mr. Dempsey, telling him that he, Dempsey, had not said anything to the police was a misleading matter affecting the mind of Mr. Jelen.

It seems to me that the situation here is not really any different from the type of situation one gets in a number of cases, where somebody had deliberately hidden in order to overhear a conversation, or somebody goes into a cell block and hears one defendant talking to another. Those are situations where the courts frequently admit conversations of that kind. Mr. Jelen, at this stage, had not been arrested. He had not even been interviewed, and there seems to me to be enough, in the circumstances of this case, to suggest that none of the action of the police was improper in any way. In those circumstances, I do not see how I can refuse to let this evidence be led."

Dealing with the point on appeal, the court said at p. 465:-

"The decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings. The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even where the circumstances are similar. This is not an apt field for hard case law and well-founded distinctions between cases."

39. Finding as an important feature that the police enquiry into Jelen's activity was at an early stage and that he had not even been brought in for questioning, the court found no reason why the trial judge should have excluded the evidence.

40. Cases cited by the court in Lam Tat Ming CFA on the unacceptable side of the line include R v. Mason (1988) 86 Cr. App. R 349 and R v. Bryce (1992) 95 Cr. App. R. 320.

41. In Mason a confession was obtained from the accused (though not in an undercover operation) consequent upon the police falsely telling him that it already had incriminating evidence against him.

42. In Bryce the accused was questioned by an undercover police officer which went to the issue of dishonesty in circumstances which amounted to an interrogation, in the course of which he incriminated himself.

43. In both cases the admissions were admitted against applications to exclude. In both cases, on appeal, it was held this amounted to the wrongful exercise of the trial judge's discretion. In Bryce there was the added feature that there was not a neutral, reliable record of what was said.

44. The court in Lam Tat Ming CFA made reference also to two cases decided in Australia and Canada.

45. The Australian case is R v. Swaffield and Pavic (1997-8) 192 CLR 159. The Canadian is R v. Broyles (1991) 9 CR (4th) 11.

46. In Australia there is a wider common law discretion to exclude which includes the consideration of public policy. In Canada the principle has been held to fall under the scope of section 7 of the Canadian Charter of Rights and Freedoms, which invokes the right of silence.

47. However both cases are useful in that they revealed how the appellate courts in these jurisdictions have approached the issue in undercover operations. In Broyles the court said there will be violation of the right of silence if the statement is elicited by the state agent.

48. What amounts to eliciting was dealt with by Iacobucci J at p. 14:-

"In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.

The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused. Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?

In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. ... evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7."

49. In Swaffield, Kirby J repeated the above excerpt from Broyles, and said at p. 144:-

"I agree in the approach expressed by the Supreme Court of Canada. I do not consider that it is derived from the Charter so as to make it inapplicable to analogous circumstances in Australia. The test propounded is consistent with the general approach which our law has taken towards deception by law enforcement officials. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made."

50. I come now to consider how, guided by the line of authorities from which is derived Hong Kong's common law, I should exercise my discretion.

51. Mr Macrae and Mr Chandler invite me to revert back to the findings of fact I made at the conclusion of the hearing of the evidence in the voir dire, revisit if need be particular extracts in the transcripts as highlighted by them, remind myself about what Ngau Wing and Heung Kai were told to do and how they performed to achieve their objective, and then conclude that there was active seeking out of information akin to interrogation such that the line between fairness and unfairness had been crossed. Mr Delaney has submitted that I am not bound by my original findings of fact; that I am duty bound to look at the evidence again in the light of the test as now laid down in Lam Tat Ming CFA. It is his contention that a careful review of the transcript and the evidence which gives substance to them, taken in chronological order, fails to disclose that Ngau Wing and Heung Kai so conducted themselves as to amount to an interrogation, or, borrowing from Iacobucci J, that they carried out the functional equivalent of an interrogation. He invites me to find there was no sapping of the will of the defendants or either of them, and no oppression, and that as police officers they would have been much less likely to have been intimidated or otherwise affected by discussions concerning past criminal conduct. Furthermore, he contends that I should consider that even if in the context of the enquiry I find that some or other of what was recorded fell on the wrong side of the line between fair and unfair that should not necessarily colour what had gone before or indeed what might have come afterwards.

52. Mr Delaney also said that the facts of Jelen and Katz were, on the appropriate issue, similar to those of this case. As the trial judge in that case exercised his discretion to admit the evidence, so I should do likewise.

53. In reply Mr Macrae took issue with the relevance of whether or not there had been oppression or the sapping of wills and so on. He said these were matters going to voluntariness and should not be considered in the context of the discretion. It was whether or not there had been an interrogation or the functional equivalent of one that is important, not the effect of that. Further, that I should distinguish or otherwise disregard Jelen and Katz.

54. I have only summarised the full and very helpful submissions all counsel made. I have a detailed note of everything that they had to say. Since hearing from them I have re-read the transcripts of the tapes and evidence. I have gone back to my findings of fact. They are perforce general. I have not sought to differentiate between the positions of D1 and D2, though of course there are differences. D2 came on the scene some way into the operation. And there were occasions when one or other was not present at a meeting or at the other end of the telephone line. But I do not find the need to draw particular attention to particular incidents involving a particular defendant. In short, I do not find the need to amend my findings of fact.

55. I pay heed to Mr Delaney's submission that I could consider and deal with specific occasions where one or other of the defendants has incriminated himself in isolation from what has gone before or what was later to be forthcoming; that as a consequence I could admit some and reject other evidence. I accept that there might be circumstances where this approach would be possible. But I do not believe it is feasible in this case.

56. The enquiry spanned some seven months. There was some time before contact was made. The exchanges at first were innocuous. Much of what was said later harked back to what had been said earlier. There was an intertwining so that nothing that was said or done is readily capable of being dealt with in isolation.

57. I am satisfied that over the passage of time both defendants were actively questioned about conduct which was to lead to the charges they respectively faced. Applying the test, that was enough to engage the exercise of the judicial discretion. And that questioning amounted to more than an undercover operative drawing a suspect's attention to an incident and giving him the opportunity to speak. There was, as I find, an active pursuit of both defendants to confess to the criminal conduct they were suspected of being responsible for.

58. Of various examples I have been referred to one was the playing off of one defendant against the other, inviting a confrontation, which would offend against the rules of conduct were the exchanges to have been orchestrated in a custodial environment. This, as I find, amounted to an interrogation of both defendants and a derogation of their respective rights of silence and to a fair trial.

59. I do not accept that I should consider the issue of whether or not the will of the defendants was sapped or whether there was oppression. I agree with Mr Macrae that this is a matter going to voluntariness, not to whether or not there was an interrogation.

60. I hark back to Jelen and Katz. In Lam Tat Ming CA the Court of Appeal justices all referred to the case. Stuart Moore VP pointed out that it was later criticised by the Court of Appeal in R. v. Christou [1992] QB 979, because the trial judge had said that the Code of Practice governing the treatment and questioning of suspects only applied to those in custody. Lord Taylor CJ described this as not quite accurate and said, at p.991:

"It would be wrong for police officers to adopt or use an undercover pose or disguise, to enable themselves to ask questions about an offence uninhibited by the requirements of the Code and with the effect of circumventing it."

61. The Vice President said at p.747:

"In the light of the decision in Christou, I am unable to place much reliance on Jelen and Katz".

62. Mayo JA chose to distinguish. He said at p.754:

"There were however important distinguishing features in the facts of the case. In Jelen and Katz the maker of the statements had sought out the person who had recorded the conversation whereas in the instant case it had been part of the deception which had been practised upon the respondents that ICAC had asked Ngau Wing and Heung Kai to approach them under the guise of a former friendship between the first respondent and Ngau."

63. Woo J (as he then was) quoted from the trial judge's reasons for ruling as he did highlighting the different facts from this case at p.771:

"Nobody advanced any misleading information to Mr Jelen to make him speak in terms which he otherwise would not have spoken ...

Mr Jelen, at this stage, had not been arrested. He had never been interviewed and there seems to me to be enough in the circumstances of this case to suggest that none of the action of the police was improper in any way."

64. I believe that their lordship's views on Jelen and Katz that it is unreliable and distinguishable would not be altered by the approach to the residual discretion now invoked by Lam Tat Ming CFA.

65. For the reasons given I exercise my discretion to rule out from the evidence the tapes, transcripts, translations and live evidence of Ngau Wing and Heung Kai.

(After submissions on costs, and reasons)

66. Costs in the District Court proceedings begun in 1998 and concluded in 2001 shall be to the defendants taxed if not agreed.

Representation:

Mr M Delaney, counsel on Fiat, for Director of Public Prosecutions

Mr A Macrae, SC instructed by Messrs So & Co., for the 1st Defendant

Mr J Chandler and Mr M Richmond (for 29.1.2001 and 31.1.2001 to 2.2.2001), instructed by Messrs Lau & Leung, for the 2nd Defendant