HKSAR v. Mo Yuk Ping and Others

DCCC367, 1334, 1360/2004
& 636/2005 consolidated

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

_____________________

RULING

_____________________

1.Mr. Cheng Huan, SC, on behalf of the First Accused and Mr Joseph Tse on behalf of the Second Accused indicated prior to the commencement of this hearing that applications will be made for a permanent stay of the proceedings against those Accused.  Each indicated that the applications would be based, in whole or in part, on the conduct of the ICAC in its obtaining authority to intercept telephone communications, the interceptions themselves and the way in which it dealt with the information which it gleaned from those interceptions.  The applications are, of course, far more detailed than that but for the purposes of this ruling such a summary suffices.

2.Late in the afternoon of the 1 August 2005 I was informed that the prosecution had made available to the Accused’s counsel five witness statements made by officers of the ICAC.  They were said to be "confidential" in nature.  Copies were made available to me.  It was also foreshadowed that there would be an application by the prosecution for the evidence of some or all of the makers of those witness statements to be given in camera.

3.When the matter came before me yesterday both counsel for the two Accused indicated that the evidence upon which each would rely for the purposes of the applications would be the undisputed chronology of facts and the various items of correspondence which appear in their respective bundles filed in court in anticipation of the applications.  Mr Ian McWaters, SC, who appears on behalf of the prosecution, accepted that to be sufficient.

4.They also indicated that, in so far as the prosecution’s witnesses are concerned, they were prepared to consent to the five witness statements being produced pursuant to the provisions of section 65B of the Criminal Procedure Ordinance, Cap. 221, after which there would be cross-examination of the various witnesses.

5.Mr McWaters made application for the evidence of two of the potential witnesses, a Mr Wong Sai-chiu, the acting Director of Investigation (Government Sector) and a Ms Rebecca Li, an Assistant Director in the Operations Department, to be adduced in camera.  That application is opposed on behalf of each of the Accused.

6.In support of his application, Mr McWaters refers to the contents of the witness statements of both Mr Wong and Ms Li submitting that those witness statements demonstrate the sensitive nature of the evidence which each is likely to give in chief.  It is his contention that by revealing detail of the policy and procedures adopted by the ICAC in applying for a warrant to intercept communications and in dealing with and disposing of any material which comes into being as a result, the interests of justice will be harmed or compromised.  He goes further to contend that the issue at stake in this matter is not simply the policy and procedure adopted by the ICAC, but rather the right of the Hong Kong government to determine policies and procedures even where details of them are consciously withheld from the public.

7.Mr Wong’s evidence describes, in detail, the policy adopted by the ICAC in matters of this nature but does not deal with this specific investigation.  Conversely, Ms Li’s witness statement, whilst partially repeating some of what Mr Wong has to say, deals also with the issue of interception of telephone calls in the present matter and to the information derived therefrom.  Of necessity, her witness statement also reveals in part the policies and procedures adopted in matters such as this.

8.Mr McWaters rightly points out that there would be no effective control over the range and scope of cross examination (save as to relevance) and says that even if the witnesses were to give evidence in chief in open court, the real damage may occur in cross-examination.

9.Conversely, it is submitted on behalf of the two Accused, that it is precisely because these are policies and procedures which have thus far substantially been withheld from the public domain but in which the public have a vested and real interest it is necessary for the evidence to be heard in open court.

10.Inevitably, part of the argument submitted on behalf of the First and Second Accused in regard to the issue of whether the evidence should be heard in camera, overlaps with their substantive applications.  As it will be necessary for me to deal in detail with those issues in due course, I do not propose to venture into them at this stage.

11.A feature of this ruling is that, by virtue of the nature of the material to which the application relates, I should be guarded, to some measure, about reference to aspects of the evidence to which it might otherwise be convenient to refer. 

12.Having heard argument in respect of this issue, I adjourned until this morning in order to be able to prepare not only the ruling itself but also the reasons for it.  I took this course because of the provisions of section 123(1B) of the Criminal Procedure Ordinance which provides for a right of immediate appeal by any person aggrieved by the ruling.

13.The First and Second Accused contended, rightly it may be said immediately, that hearing evidence in camera is an extraordinary course for a court to follow.  Mr McWaters readily acknowledged that to be so, submitting that this is one of the exceptional instances where this course should be adopted.  The position of the two Accused is, unsurprisingly, to the contrary, that this is not a matter which falls within an exceptional category, that the government should not be allowed to maintain what they describe as "secret policies" and that the interests of justice in fact require this evidence to be given in open court.

14.There can be no doubt that it is a fundamental principle of our system of law in Hong Kong, as well as in many others, that proceedings should be conducted in a manner which affords the public and media free access to those proceedings: that there should only be a departure from this cardinal principle in exceptional and limited circumstances. 

15.Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 373, provides in part...

The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interests of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice;...

16.That article reproduces, word for word, the provisions of Article 14 of the International Covenant on Civil and Political Rights to which the Hong Kong Special Administrative Region is a subscriber.

17.Plainly, therefore, it is only where a court is of the opinion, in special circumstances, that publicity would prejudice the interests of justice that it may direct that the press and public may be excluded from all or part of trial and then only to the "extent strictly necessary". 

18.Section 123 (1) of the Criminal Procedure Ordinance, under which this application is made has a corresponding provision thus:

... subject to the provisions of the Hong Kong Bill of Rights Ordinance, if it appears to a court that it is necessary to do so in the interests of justice or public order or security, the court may order that the whole of the proceedings before it in respect of any offence or, having regard to the reason of the making such order, any appropriate part of such proceedings shall take place in a closed court.

19.The only contention in this matter is that publicity of the evidence of Mr Wong and Ms Li "would prejudice the interests of justice" or that it is necessary that their evidence be heard the camera "in the interests of justice".

20.I have been referred on behalf of the Accused to a number of decisions of various courts in England, Hong Kong and Australia [SCOTT v SCOTT [1913] AC 417; R v Chief Registrar of Friendly Societies [1984] 1 Q.B. 227; Rv B Suttill, Esq, Magistrate, ex parte Asiaweek Ltd [1984] HKC 474 and the authorities therein referred to; and John Fairfax Group Pty Ltd & Anor v The Local Court of New South Wales and Others 26 A.L.D. 471].  The principles expressed in SCOTT also have been adopted in other jurisdictions [see, for example, S v Madlavu and Others 1978 (4) SA 218 (E) D;  BROWN v Attorney General [2005] NZAR 32].

21.The Australian decision is recent and contains what may be regarded as a contemporary, succinct summary of the principles emerging from the other authorities, which properly reflects the position in Hong Kong:

The normal rule of our courts is that justice is administered in a court open to the public ….  This rule, which we have inherited from the common law of England, has been described as an "inveterate" rule of our system of justice... In this court it was described... as "the fundamental rule of the common law"... It was the fear of secret trials, and some experience of them in use, which led to the deeply ingrained prejudice in favour of open justice in England….

…we, who are the heirs of the common law of England, have so far accepted a ... rule.  It is one which permeates our institutions of justice.  In the case of criminal charges, internationally recognised statements of basic human rights confirm the right to public trial to which the press has access.  They permit derogations only (relevantly) to the "extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".

At common law the rule is not absolute... The common justification for [the] special exceptions is a reminder that the open administration of justice serves the interest of society and is not an absolute end in itself.  If the very openness of court proceedings would destroy the attainment of justice in the particular case... or discourage its attainment in cases generally... or would derogate from even more urgent considerations of public interest … the rule of openness must be modified to meet the exigencies of the particular case.

22.It is the prosecution's position that that is precisely what would happen were Mr Wong and Ms Li to give their evidence in open court in this matter:  that the disclosure of the policies and procedures to the public domain would effectively hamper, not just the ICAC, but law enforcement agencies in general by depriving them of or, at the very least limiting the scope and effectiveness of, an important investigative tool presently available to them.

23.The decision in  John Fairfax Group Pty Ltd & Anor clearly contemplates that the concept of prejudice to the interests of justice is not confined solely to the particular matter in which the application for a hearing in camera is made.  With respect, that seems to me to be the correct approach.  It is self-evident that where an application is made in respect of an intelligence gathering exercise conducted in respect of a matter which is presently before the court, there can be a little or no prejudice to the interests of justice in that particular matter.

24.However, if the prosecution, which bears the onus to satisfy the court that it should depart the normal practice of a hearing in open court, is able to satisfy the court that there may be prejudice to the interests of justice as a whole by virtue of an inability to effectively conduct investigations or an aspect of investigations in future matters that would justify the court in granting the application.

25.Without going into either the details contained in Mr Wong's witness statement or the application for the permanent stay by the two Accused, it is helpful to note that the basic procedure followed is for the ICAC, in this instance, to make application to the Chief Executive in terms of section 33 of the Telecommunications Ordinance, Cap. 106, for a warrant to intercept telephone communications.  If that warrant is granted a specialist, stand-alone team monitors the communications concerned and prepares a synopsis of their content.  That synopsis is then available only to certain designated officers of or above a defined rank, who are directly involved in the investigation.

26.It is stating the obvious to say that these actions are carried out covertly.  It must be equally obvious, as a matter of simple commonsense, that surveillance of this nature is indeed an extremely valuable tool for the purposes of gathering intelligence concerning criminal activities.  In my judgment, to allow its effectiveness, where its use is justified, to be curtailed would be a retrogressive step in real terms and would inexorably lead to the interests of justice, in a broad sense, being prejudiced.

27.There is one other consideration in respect of the present application.  A similar application for permanent stay based upon substantially the same grounds as are foreshadowed in this matter was recently made in proceedings in District Court criminal case number 689/2004 before His Honour Judge Sweeney.  In that matter the evidence of two ICAC officers was heard in camera apparently without objection by Mr Cheng or Mr Tse who also appeared in those proceedings.  That application for stay was refused.

28.However, when His Honour Judge Sweeney gave his reasons for refusing the application he traversed portions of the evidence which he had heard.  Consequently, those matters covered in his reasons are now public.  In so far as Mr Wong’s evidence covers the same issues, and a large portion of his witness statement appears to do so, it is not open to the prosecution to contend that the repetition of that evidence in public could prejudice the interests of justice.

29.Mr McWalters realistically accepts this to be so but points out that as extensive as the reasons of the previous ruling may be thought to have been when dealing with evidence heard in camera, there are still issues covered in Mr Wong's statement which should not be made public.

30.In my judgment, the real factor that assists the prosecution in discharging the onus upon it is the very nature of the stay application.  Both Mr Cheng and Mr Tse emphasised in the course of their opposition to the present application that what will be in question is the "policy and procedures" adopted and followed by the ICAC in the present matter.  It was emphasised that a substantial part of the anticipated argument will be that the policy is in breach of both Article 30 of the Basic Law and section 33 of the Telecommunications Ordinance and that the policies and procedures are not "in accordance with law". 

31.It is self evident from those submissions that Mr Wong and Ms Li will be subjected to detailed cross examination in regard to those policies and procedures.  Their evidence may sensibly be foreseen as forming a fundamental part of the arguments to be advanced on behalf of the Accused.

32.In the circumstances, I am satisfied that Mr McWalters’ apprehensions concerning the real possibility of information being divulged in cross-examination which may prejudice the interests of justice in a general sense are well founded. 

33.Accordingly I order that the evidence of WONG Sai-chiu and Rebecca LI be taken in closed court.

Please refer to CACC26/2006 for the relevant appeal(s) to the Court of Appeal.