HKSAR v. Mo Yuk Ping and Others
Read the full judgment text of DCCC 367/2004 on BabelCite. This District Court judgment.
1. I am now concerned with an application by each of the First and Second Accused for the permanent stay of the proceedings against her. Each faces Charges 1 and 2 on the charge sheet: in addition, the First Accused faces Charge 8 whilst the Second Accused faces Charges 3 and 4. There is a commonality between the two applications sufficient to make it both appropriate and convenient to deal with them together, more particularly as each has prayed in aid the arguments of the other.
Cites 4 cases
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DCCC367, 1334, 1360/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
______________________ RULING (3) ______________________ 1.I am now concerned with an application by each of the First and Second Accused for the permanent stay of the proceedings against her. Each faces Charges 1 and 2 on the charge sheet: in addition, the First Accused faces Charge 8 whilst the Second Accused faces Charges 3 and 4. There is a commonality between the two applications sufficient to make it both appropriate and convenient to deal with them together, more particularly as each has prayed in aid the arguments of the other. 2.The applications flow from the fact that the ICAC intercepted telecommunications, in the form of telephone calls: the evidence is that telephone lines used by the First Accused as well as a person scheduled to become a key prosecution witness if the proceedings continue were monitored and conversations intercepted. There is no dispute that that occurred. All that now survives of those intercepts are notes made by one ICAC officer as well as two composite documents based upon those notes. There is no evidence as to whether or not the Second Accused’s telephone calls were intercepted. 3.The present applications were preceded by an application by the prosecution for the evidence of two out of five ICAC officers to be heard in camera. That application took up a day. It was granted for the reasons given at the time. Evidence was then heard, extending over two days. Since the conclusion of the evidence there have been five days of submissions on behalf of the two Accused as well as the prosecution. 4.The submissions were wide ranging and explored a number of a different issues and facets of those issues, in greater or lesser detail. In the course of those submissions extensive references were made to a wide variety of judgments of courts of different levels in a variety of jurisdictions. In the interests of constraining this ruling to a manageable length without entirely sacrificing coherence, I do not propose to attempt to address every issue raised by any of the parties nor do I propose to quote extensively from authorities where one reference, which is the accumulation of previous judicial wisdom, will suffice. I have taken into account, however, every submission made and also read in full each judgment made available to me. The principles applicable to the applications 5.The First Accused’s application is predicated upon one of three general bases: firstly, that she is unable to have a fair trial for a variety of reasons to which I shall return; secondly, that even were she to be able to have a fair trial, it would be unfair to put her on trial; thirdly, that the conduct of the ICAC is such that it constitutes an affront to the court and to the administration of justice to the extent that the proceedings should be stayed. In my view, the latter two grounds are so closely interwoven as for the third to be but a facet of the second: I propose to the deal with that aspect on that basis. 6.The Second Accused adopts a similar approach without adopting two aspects of the First Accused’s submissions. In addition, the Second Accused contends that sec. 33 of the Telecommunications Ordinance conflicts with the Basic Law and thus, by operation of the Basic Law, ceases to be of any effect. The First Accused adopts those submissions. 7.The principles which apply in applications of this nature were considered in detail in HKSAR v LEE Ming Tee & Ano. (2001) 4 HKCFAR 133. It is useful to reproduce in detail what Mr Justice Ribeiro, PJ, said:
8.A third ground was considered by the Court, but is of no applicability to this matter. It consequently follows that the Court of Final Appeal recognised two situations relevant to the instant matter in which a court would be justified in staying proceedings: firstly, where “…a fair trial for the accused is found to be impossible” to which I shall refer as the first basis and, secondly, "... where a fair trial undoubtedly remains possible… the circumstances involved an abuse of power which so offended the court's sense of justice and propriety that the entire prosecution was tainted as an abuse of process” to which I shall refer as the second basis. 9.Those are the tests that are to be applied. It is for each Accused to satisfy the court, on the balance of probabilities, that she is entitled to the relief sought. That much is common cause. Thetelecommunications interception system 10.It is primarily the evidence heard in camera relating to systems used by the ICAC, but together with the other evidence, that forms the factual basis upon which the present applications are founded. It is necessary to consider that evidence before turning to the detailed contentions of the Accused. 11.In a recent trial in this jurisdiction, similar applications for stay were made based upon the same policy and procedures in regard to telecommunications intercepts as were followed in the matter before me. [HKSAR v LI Man-tak and 3 Others DCCC689/2004] Evidence in that matter was heard, similarly, in camera. However, His Honour Judge Sweeney, the trial judge, summarised sufficient of that evidence when delivering his reasons for the ruling so as to demonstrate the general nature of the practices followed in these matters. It is thus open to me to identify the policy and procedures as were testified to before me insofar as they are already in the public domain: in my judgment, nothing further in respect of general policy emerged during the hearing before me which would have any bearing upon my ruling. Moreover, the correspondence which was before the court in that trial as well as before me in this trial also resulted in publicity of some facets of the system. 12.Telecommunications intercepts are carried out, in this case by the ICAC, pursuant to an established Government policy. Firstly, it is policy that intercepts are not used for the purposes of gathering evidence for use in criminal proceedings but solely for the purposes of gathering intelligence in regard to criminal activities. Secondly, the material gathered and most of the media and documents generated consequent upon that the gathering are destroyed: it is this destruction that is relied upon, to a large part, by the Accused in these applications. 13.It was clear from the evidence of the ICAC witness Wong, which I accept, that this policy is a long-standing one which was formulated by the Security Bureau on behalf of the Government and which applies to all law enforcement agencies in Hong Kong. It is plain, therefore, that the overall policy is simply imposed on the ICAC: it is obliged follow the policy if it wishes to use telecommunications interception for the purpose of intelligence gathering. The ICAC then implemented a set of procedures in order to give effect to this policy. 14.Each ICAC witness who was asked the question expressed the opinion that telecommunications intercepts are performed pursuant to the provisions of sec. 33 of the Telecommunications Ordinance. When seeking authority under sec. 33 a written application is made by an ICAC investigator of or above a certain rank. The application is forwarded to a section of the ICAC dedicated to telecommunications interception: it is a separate section to which investigators have severely circumscribed access. The application finds its way to the ICAC Head of Operations who satisfies himself that the interception is necessary: assuming him to be so satisfied, application is then made to the Chief Executive. Assuming the Chief Executive approves the application a warrant, which is valid for a specific period and relates to a specific identified telephone line, is issued and interception of the telecommunications conducted. The application for the warrant, and the warrant itself, is returned by the office of the Chief Executive to the ICAC: no copies are kept. 15.Recordings of the intercepted calls are made. Written synopses of the content are prepared: it is misleading to call those documents "transcriptions". What goes into or is omitted from those synopses is decided by the maker in his or her discretion. The maker is informed, in general terms, of the nature of the suspected offence or offences and is directed to include in the synopses whatever appears to be relevant using a broad concept of relevance as to what might be regarded as both inculpatory and exculpatory “intelligence”. 16.A complaint is made by the Accused that this demonstrates the first level of arbitrariness involved in the process: it is left entirely to the discretion of the maker of the synopses to decide what should or should not be included with the vagaries of the situation being compounded by virtue of the fact that this procedure is carried out at such an early stage of the investigation that it is really not possible to tell what may or may not be relevant. 17.Only specific, authorised, ICAC officers of or above a certain rank are permitted access to the synopses. Even then, they are not permitted to take copies of them: at best, they are entitled to make their own notes of what appears. Whether they make notes or simply rely upon their memories is up to the individual officer. Because of the time limit by which the recordings are to be destroyed, prosecutors would not have access to them. Based upon his or her reading of the synopses and upon such notes as may have been made the officer concerned will prepare eventually a document known as an "Intelligence Information". 18.Once again the Accused point to the arbitrary nature of what is included in the investigators notes, if any are made, and in the subsequent preparation of the Intelligence Information. 19.The Intelligence Information is specifically phrased so as to conceal any indication that its contents are the result of intercepts. They are intended to be created simply as a record of intelligence which the author believes will be of relevance during the course of any subsequent investigation. The Intelligence Information and the author’s own notes, if made, remain in existence: the application itself, the warrant and all other media and documents which are generated as a result of the interception are destroyed. 20.This destruction is designed in order to protect the privacy of those whose privacy has been invaded by the interception. This was expressed in the letter dated 11 July 2005 from the Department of Justice to the First Accused’s solicitors as follows: "Concerns of the privacy rights of others dictate that the product [of the interceptions] be destroyed within very strict timeframes.", it being recognised that the intercepts will inevitably lead to the monitoring of entirely innocent conversations with entirely innocent third parties. 21.It is self-evident that the Intelligence Informations can have no probative value. Their content is a third hand distillation of content of the intercepts which occurred at the very initial stages of an investigation when there is only a general idea of even the type of offence which might have been committed: this alone demonstrates that what was being sought at that stage was simply intelligence of general criminal activities and not material for use as evidence for the purposes of any subsequent proceedings, were any to eventuate. It is equally self-evident that what may have been regarded at that early stage as relevant or irrelevant may prove later to be so or to be the reverse. Even disregarding entirely any questions of admissibility, it is plain that no weight whatsoever could be placed upon the content of the Intelligence Informations. 22.It was the disclosure to the Accused of the existence of the Intelligence Informations in this matter, albeit somewhat late in the day, which gave rise to exchanges of correspondence relating to the issue of disclosure and which appears to have spurred the present applications. The evidence regarding the present matter 23.I have been relating the system which is followed generally, and which was followed in the present matter. It is pertinent to observe at this stage that the First Accused’s conversations were monitored because of what was thought to be the commission of an offence under the Prevention of Bribery Ordinance. However, the intelligence that came to light as a result of that monitoring did not give rise to a charge under the Prevention of Bribery Ordinance but to the present, entirely different, charges. As the witness Li indicated, telecommunications intercepts are a means of verifying whether there is any substance to a complaint made to a law enforcement agency: in this matter it appears there was no substance in the original complaint but that by listening to the First Accused’s telephone conversations intelligence in regard to other offences came to light. 24.The ICAC witness Wong testified, amongst other things, that in the present matter although he believed that telephone intercepts had been carried out on both First Accused and the potential witness in addition to the intercepts conducted during the periods referred to by him, he was unaware of any details in regard to them. He explained that the policy of destruction of materials had nothing to do with whether anyone was to be charged or whether there would be any prosecution flowing from the intercepts - it was an inflexible policy that was applied to all intercepts. 25.The witness Li accepted that it was not unusual for there to be discrepancies between the Intelligence Informations and any witness statement taken subsequently from a person who was a party to the telephone call: she reiterated that telephone interception is employed as a tool at a stage when the probabilities are that no one would be aware as to who may be charged or of the nature of the offences. When she prepares Intelligence Informations she includes as much as possible, everything that has the "slightest chance" of relevance. 26.In the instant matter she confirmed that she had not listened to any of the recordings of the intercepts so was unaware whether any parts were inaudible, difficult to hear or difficult to understand or whether there were gaps in the telephone conversations or whether different dialects were involved. It was her evidence that if a dialect was involved the synopsis would be prepared by a person familiar with that dialect. 27.She testified, and I accept, that the prosecution has been disclosing the existence of Intelligence Informations in its unused material since 1997. Support for her evidence that these documents were being disclosed as unused material is to be found in the proceedings in case number DCCC689/2004. She testified that indeed she had given evidence on previous occasions about the fact of telecommunications intercepts, the earliest instance she was able to recall having occurred in 2002. This is of relevance insofar as the Accused, particularly the Second Accused, suggest that the evidence establishes in this matter an attempt by the ICAC to deliberately conceal those documents and, thus, the fact of the telephone intercepts. It is in direct contradiction of that contention. 28.She produced in evidence two Intelligence Informations contained in the unused material in this matter which were referred to as "337" and "337A" respectively. They were produced not to prove the truth of the content of those documents but simply to demonstrate the type of content which would be contained in such a document. She testified that she had compiled both of those documents and pointed out that the contents of document 337A demonstrated the wide-ranging nature of the information contained in the synopses, as its content could not conceivably have had any relevance to any subsequent proceedings. She accepted the proposition that the makers of the synopses prepared their own understanding of the recordings themselves whilst she applied her understanding to her reading of the synopses. 29.On behalf of the Second Accused she was taken through certain specific aspects of the evidence in respect of each of which she agreed that matters mentioned in the prosecution's proposed opening had not appeared in the Intelligence Informations. She pointed out that there is no guarantee that every telephone call on every telephone line belonging to or used by a particular person would be monitored: all that would be monitored were the conversations on telephone lines about which the ICAC knew and in respect of which the Chief Executive had issued a warrant. 30.She testified that when she was preparing her notes from the synopses she made an effort to group various matters together, it being a function of the Principal Investigator or Chief Investigator having access to the synopses to make sense of what was contained in them. 31.She reiterated that at the time the telecommunications intercepts were being carried out on the First Accused’s telephone line/s she was unaware of any allegations of stock market manipulation as well as being unaware that the Securities and Futures Commission was running its own investigation. 32.In addition to the ICAC witnesses Wong and Li whose evidence was heard in camera, three further ICAC officers, Chau, Chu and Choi, testified in open court. 33.It will be recalled that the First Accused was arrested on 1st June 2003. The trial involving her was originally set down for hearing in January 2005 after being transferred to this jurisdiction. Prior to that date the prosecution had made what, upon each occasion, it contended was complete disclosure on no fewer than five occasions. Because of the arrest of the Fifth and Sixth Accused and the subsequent consolidation of trials, it became apparent in December 2004 that the matter was unlikely to proceed in January 2005. The matter was then relisted for hearing to commence on 1st August this year. On 24 June 2005 the solicitors for the First Accused wrote to prosecuting counsel complaining about the provision of continually updated lists of unused material which was followed up by their letter of 30 June 2005 making specific reference to items 337 and 338, pointing out that disclosure of those items, the Intelligence Informations, had not been made before 2 June 2005. It was in reply to that letter that the Department of Justice pointed out that the volume of materials meant that disclosure was an ongoing process of review and provided an assurance that there had been no attempt at concealment on the part of the ICAC. 34.It is stating the obvious to say that the disclosure of the Intelligence Informations at the beginning of June 2005 was belated. Each of the three ICAC officers was cross-examined about this particular aspect but it was Choi who, rightly as the officer in charge, came in for the most criticism. He testified that he had only come across Li’s notes in a filing cabinet when he was doing yet another exercise of reviewing all the materials in the light of the imminent trial. This occurred, on his evidence, in May 2005. He testified that he had not been previously briefed by any of his predecessors in the investigation as to the existence of the notes: there was nothing to contradict this aspect of his evidence. 35.I find it instructive to refer to the timeframes during which the various officers were either responsible for the investigation or, particularly in the case of Choi, had the right of access to telecommunications interception material. Chau became involved in this investigation as an Acting Chief Investigator on 6 June 2003, significantly five days after the First Accused had been arrested. He remained in that capacity until 25 June 2004. He was replaced by Chu who assumed responsibility as Principal Investigator on 28 June 2004. Choi, however, was appointed as an Acting Chief Investigator on the transfer of Chau in June 2004 but the acting appointment did not afford him access to telecommunications interception material: Chu continued to have access, instead of Choi, to telecommunications intercepts material until 11th October 2004. Choi was confirmed in his appointment as Chief Investigator with effect from the 11th of October 2004 and it was only from that day that he had access to the materials. 36.These dates are significant when the period of interception of the First Accused’s telephone conversations as testified to in camera are borne in mind and also when one looks at Li’s notes (Exhibits P1118 and P1122) which were created in April and May 2003. Albeit that Choi said that there was nothing restricting his access to Li’s notes at any stage after he assumed office up until his discovery of them in May 2005, I see no reason, in the circumstances, to disbelieve his evidence that he simply was unaware of them and had not encountered them until that time. Once he encountered them, Li was asked to prepare the Intelligence Informations, documents 337 and 337A, and those were then disclosed in the further, seventh, amended list of unused material. 37.There are two matters which I should mention briefly. Firstly, there can be no doubt that the disclosure of the unused material was belated. However, if either Accused contends that she has been hampered in the preparation of her defence by the lateness, per se, of disclosure that may be remedied by an application for an adjournment. Secondly, reference has been made to the statement by the Department of Justice that “…there are no materials still in existence evidencing the product generated by the telephone interception other than a document entitled Intelligence Information” (Exh. P1123, letter dd. 23 June 2005 addressed to the Second Accused’s solicitors) which appears to ignore the existence of Li's personal notes: however, a letter dated 30 June 2005 from prosecuting counsel to the First Accused’s solicitors specifically acknowledged the existence of Li’s notes. It is unrealistic to suggest that that information would not have come to the attention of the representatives of other Accused. 38.The only evidence before me in respect of these applications, is that adduced by the prosecution. Neither Accused gave or led any evidence in support of her application, particularly in support of the contention that it is impossible to obtain a fair trial or to show how non-disclosure may in some practical way have prejudiced the defence. In the case of the First Accused, whose telephone conversations were undoubtedly monitored, there was no evidence dealing with the existence of exculpatory content in the monitored telephone conversations which allegedly had been omitted from the Intelligence Informations. 39.It follows from my summary of the evidence that I accept that although the disclosure of certain unused material may have been belated, I am satisfied that that was not due to any attempt at concealment by the prosecution. Insofar as the Accused rely upon the lateness per se of disclosure or the fact that it may have been made in a stuttering fashion I reject the contention that they will be prejudiced in the conduct of their defence. The Accuseds’ contentions The impossibility of a fair trial(“the first basis”) 40.In her skeleton submission the First Accused characterises the first basis upon which she is entitled to a stay of proceedings in this fashion
41.With respect, that is not the test. The test is whether each Accused is able to satisfy me, on the balance of probabilities, that because of the prejudice suffered as a result of the circumstances, in this case the destruction of materials, it is impossible for her to have a fair trial. 42.When considering just what is meant by the concept of "a fair trial" it is helpful to recall a passage from the earlier reference to the words of the Court of Final Appeal in Lee Ming Tee No. 1 when quoting with approval from Jago:
43.In Jago we see the following @ p. 47:
and @ p. 54
44.The consequences of the destruction of the recorded tapes and product therefrom, and the consequential inability to disclose the content thereof, which are adverted to by the Accused in support of the application is said to be the prejudice caused by, in summary,
45.Although the third issue which I have categorised may require an additional observation, there seems to me to be a single insurmountable object in the way of the Accused. It is, in simple terms, that these applications are entirely speculative, insofar as this first basis is concerned. The Accused are simply unable to point to anything whatsoever which enables either to say, other than on a purely assumptive or speculative basis, what material there was which, by virtue of being deprived of it, results in the inevitability of the impossibility of a fair trial. That, of course, is a matter of simple logic: if the material no longer exists, for whatever reason, an accused may be unable to identify any material which is capable of use in the discharge of the onus. 46.It is important to retain at the forefront of one's mind the fact that it is the Accused who bear the onus to establish, for the purposes of this first basis that, firstly, she has been prejudiced or potentially prejudiced and, secondly, that that prejudice or potential prejudice will result in it being impossible for her to have a fair trial. 47.To discharge the onus it is, in my judgment, simply inadequate to come to court to say that it is not known whether there is or is not material contained in that which has been destroyed; that the court must therefore assume that there was something that may have been of assistance to the Accused; and that the court must therefore assume that the Accused is prejudiced by the deprivation of whatever that might have been. It is equally speculative for the prosecution to come to court, of course, to say that it would have recorded everything that was relevant to the Accused’s position, that therefore the court must assume that there was nothing in those materials which would in any way have assisted the Accused: but it is not the prosecution that bears the onus. 48.I do not accept the submission that the fact that the Accused cannot now listen to the recordings or have access to the synopses demonstrates of itself actual prejudice. It was never intended that the primary materials were to be produced as evidence or to be available to anyone other than specified, strictly limited, government officers. The Accused would only be prejudiced if there were any material of benefit to them in any way. They are, in this matter, unable to demonstrate that to be so. 49.Deputy High Court Judge McMahon, as he then was, observed in HKSAR v OH Eugene Jae-hoon HCMA 369/2002
50.Although the Accused in that matter may well be regarded as having had a much clearer indication of the existence of notionally helpful information than exists in this matter, the judge, in rejecting the complaint of non-disclosure, described the submission as "... entirely speculative if not fanciful... " and went on to say
and, later,
51.On a practical and realistic level I am mindful of the words of Lord Jauncey of Tullichettle in R v Preston and Others [1994] 2 A.C. 130 @ p. 144F
52.Naturally, the Accused are entitled to rely upon that very conduct which prevents them from being able to point to prejudice, the destruction of the material, when it comes to the consideration of the second basis upon which the court may grant a stay: on that second basis, the Accused do not have to establish prejudice. 53.I made reference to the issue of cross-examination of certain identified witnesses. A summary of that appears in paragraph 36 of the First Accused’s skeleton argument and was expanded upon in oral submissions. It seems to me that those contentions are fully addressed at this stage by the evidence of the witness Li. 54.In the circumstances, on the basis of demonstrating the impossibility of a fair trial, the Accused fail. Of course, if cross-examination of one or more or any of the witnesses were to bear fruit during the course of the trial in the sense that an apprehension of the existence of materials in the monitored telephone conversations which may or might have furthered cross-examination or otherwise assisted an Accused is raised, that is an aspect which may be dealt with at that stage even, and this is an observation rather than an invitation, by way of renewing an application for permanent stay. Was the prosecution conduct such as to warrant a stay? (“the second basis”) 55.We have already seen, from the judgment delivered in LEE Ming Tee No. 1 the fundamental approach adopted by the Court of Final Appeal where it is said to be
56.That approach was reiterated by the Court of Final Appeal in the judgment of the court delivered by Sir Anthony Mason, NPJ, in HKSAR v LEE Ming Tee and Security and Futures Commission (2003) 6 HKCFAR 336:
57.A contemporary amplification is to be found in the modern English authority of Grant v R [2005] EWCA Crim 1089 @ 55 thus:
58.I have had made available to me the recent ruling in this jurisdiction in HKSAR v SHUM Chiu and Others DCCC687/2004. 59.The contention of the prosecution is that it is necessary for the Accused to show mala fides on the part of the ICAC in order to succeed on the second basis. Conversely, it is the Accused’s contention that conduct short of mala fides but possessed of "serious fault" would suffice: moreover that it is not appropriate to limit the inquiry solely to conduct on the part of the ICAC but that if the conduct of the Government as a whole, or the Executive, displays the necessary level of conduct as to justify stay, then relief should still be granted, it being unrealistic to differentiate between different organs of government. I trust that this is an accurate summary of the conflicting positions taken by the parties. 60.In this respect, I agree with the submission of the Accused that, whilst improbable, it is possible, at least theoretically, that conduct falling short of that which could properly be categorised as displaying mala fides or "bad faith" may be sufficient in a given situation to justify a stay, whilst bearing in mind the qualification expressed by Sir Anthony Mason that it "... will rarely if ever be satisfied in a case where a fair trial is still possible." It then becomes necessary to consider the conduct about which complaint is made. In summary, that is the destruction by the ICAC of the telephone intercepts and the synopses of them leading to an inability on the part of the prosecution to disclose them. 61.In June 1991 provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong were incorporated into the law of Hong Kong by virtue of the Hong Kong Bill of Rights Ordinance, Cap. 383. Article 14 of that Ordinance provides
which effectively echoes Article 17 of the ICCPR. 62.On 1 July 1997 the Basic Law became of application. Article 39 provides
leaving intact the provisions of article 14 of the Bill of Rights Ordinance, but of course subservient to the Basic Law. 63.Article 39 of the Basic Law is in general terms. However, Article 30 is in specific terms and is of direct relevance to the present matter. It reads
64.Applying the ordinary and natural meaning of the words appearing in those two Articles, the effect of Article 39 is thus to provide for restrictions, generally, on "rights and freedoms" where the restrictions are "prescribed by law" (subject to the remaining qualification expressed in that Article) whilst the effect of Article 30 is to specifically “prescribe by law" an infringement or restriction on privacy of communication in the two circumstances referred to, “to meet the needs of public security or of investigation into criminal offences”, where that infringement is "in accordance with legal procedures". 65.It is to be noted that the Court of Final Appeal recognises that whilst fundamental freedoms guaranteed under the Basic Law are to be construed generously, even they are not absolute. HKSAR v LEUNG Kwok Hung and Others [2004] 3 HKLRD 729. 66.It is then the position of the Accused that because the ICAC purported to act under the provisions of sec. 33 of the Telecommunications Ordinance when it obtained a warrant from the Chief Executive it is necessary to go on to determine whether that section itself is consistent with the Basic Law. This, the argument goes, will determine whether the policy laid down by the Security Bureau or the procedures prescribed by the ICAC constitute "legal procedures" as contemplated by Article 30 of the Basic Law: if they do not, then the telecommunications intercepts themselves as well as the destruction of the material arising from them are unlawful acts and are of such an unconscionable nature as to form the type of conduct in respect of which I should exercise my discretion to stay the proceedings. 67.The prosecution, on the other hand, takes the stance that, in any event, there was no duty upon it to retain the telephone intercepts or the synopses and thus to disclose them and that, therefore, by destroying them the ICAC did not act unconscionably or unlawfully: as a consequence my discretion should be exercised to allow the proceedings to continue. It seems to me that if this contention is correct, whether or not sec. 33 is consistent with the Basic Law is an academic question which does not avail the Accused. The duty to retain the content of telecommunications intercepts and the synopses. 68.The real issue seems to me to be not, if the materials were still in existence, whether they would have been discoverable, for unarguably they would ("... whatever test is applied if interception materials had still been in existence at the time of the trial they would have fallen within the scope of the duty..." (Lord Mustill in Preston)) but more fundamentally whether the ICAC was under a duty to retain them. I have had the advantage of reading the judgment of His Honour Judge Sweeney in DCCC689/2004. Although the road by which we travel differs, I would respectfully agree with the conclusion at which he arrives. 69.As we have seen, the Court of Final Appeal recognises that
LEE Ming Tee No. 2 @ 188 70.In an earlier discussion of the duty of disclosure in the judgment Sir Anthony Mason said @ p. 170
but recognised that the duty is
71.That there are circumstances in which information which remains in the possession of the prosecuting authority may properly not be disclosed is recognised widely: in my judgment, similar considerations apply to the duty upon the authority to retain information which comes into its possession, depending upon the circumstances in which it does so, and thus thereafter to make disclosure of it. 72.There can be no doubt that the area of telecommunications intercepts is properly described as a distinct or “specialist area”. The evidence in this matter establishes beyond peradventure that it is of limited application and designed for the sole purpose of gathering intelligence. 73.In Brown v Stott (Procurator Fiscal, Dunfermline) and Ano [2001] 2 WLR 817, a case from Scotland which found its way to the privy Council, Lord Bingham of Cornhill quoted with approval from the decision in Fitt v United Kingdom Application No 29777/96, a matter concerning the interpretation of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF):
and Lord Hope of Craighead continued, @ p 850
74.It is to be noted, of course, that there the Privy Council was discussing the non-disclosure of evidence: in the matter before me there is uncontroverted testimony that it has been the settled practice at all times not to use the product of telephone intercepts as evidence but solely for intelligence gathering purposes. 75.Assistance is also to be found in the decision of the House of Lords in Preston. The Accused, rightly, point out that that decision dealt with specific legislation (Interception of Communications Act 1985) which had been passed in England consequent upon a ruling by the European Court of Human Rights in Malone v United Kingdom (1984) 7 E.H.H.R 14 in which it had been held that the then telephone tapping arrangements in the United Kingdom violated the ECPHRFF. They point out, further, that there is no equivalent detailed legislation in Hong Kong – indeed, that is fundamental to their complaints. The points are, of course, well made but that does not detract from the principles considered by the House of Lords. 76.The most salient feature common to both the English legislation, and indeed the point being particularly considered by the House of Lords, and the practice in Hong Kong is that in neither jurisdiction is the intercept carried out with a view to, or the intention of, obtaining evidence. The English legislation specifically prohibits it whilst that has been the practice in Hong Kong for decades. The sole purpose, in both jurisdictions, is simply to obtain intelligence based upon which further investigations may or may not be carried out, based upon which charges may or may not eventuate. 77.Lord Mustill goes on to discuss the tensions that exist in matters such as this observing @ p. 146B
and then to review the history and rationalisation of the power assumed by the executive to perform intercepts, observing @ p. 147E
78.Section 2 of the English legislation contemplated intercepts being carried out "for the purpose of preventing or detecting serious crime": Article 30 of the Basic Law permits inspection of communications “to meet the needs … of investigation into criminal offences.” Neither contemplates the use of the product of intercepts as evidence in any subsequent criminal proceedings. 79.Concerning sec. 2 of the English legislation Lord Mustill said @ p. 165F
80.Lord Mustill particularly categorised and recognised "... the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders. " 81.It is undeniable that the use of telecommunications intercepts by appropriate agencies is an invaluable tool for gathering intelligence on criminal offences and those who commit them. To strip it of its clandestine nature would be to circumscribe its effectiveness. "The need for surveillance and the need to keep it secret are undeniable", (per Lord Mustill in Preston). The clear evidence is that in Hong Kong despite the existence, and presumably the use, of sec. 33 for more than four decades the data gathered has only ever been put to use for intelligence purposes and not as evidence. This has been in accordance with an established and settled policy which is imposed upon those who would wish to avail themselves of telecommunications intercepts. 82.That policy proscribed not only that the product of the intercepts could not be used as evidence but that, specifically so as “to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent”, (per Lord Mustill in Preston), the product and synopses are to be destroyed. In my judgment that is a both a reasonable and necessary extension to the policy of intelligence gathering. 83.In the circumstances, I am satisfied that the policy adopted by the Government of allowing telecommunications intercepts for the purposes only of intelligence gathering and thereafter requiring the destruction of the product flowing therefrom is rational. The policy, overall, is one which is designed to strike a fair balance between the competing interests at stake and to minimise the inherently intrusive nature of the intercepts. 84.In the context of the instant matter, the ICAC, if it wished to use telecommunications intercepts, was obliged to follow that policy. It follows that by adhering to the policy it was under no obligation to retain the product or synopses for the potential purpose of later disclosure in the event that any charges arise. Was there conduct possessed of "serious fault" or mala fides? 85.It follows from my finding that as there was no duty upon the ICAC to retain the intercept materials, because of the existing policy to which it was subject, that it cannot be said that the ICAC was acting mala fide or that its conduct was unconscionable or possessed of "serious fault" in destroying the material. 86.It takes no imagination to anticipate the argument, diametrically opposed to the present, if it were to be suggested that the ICAC had acted contrary to that very policy. 87.The Accused, however, contend that it is not sufficient simply to look at the conduct of the ICAC in isolation from that of the Government as a whole or the Executive. A number of factors are relied upon. It is pertinent to reiterate that it was never intended that the primary materials were to be produced or treated as evidence or to be available to anyone other than specified, strictly limited, government officers. These factors include
88.The policy which has consistently been applied to telecommunications intercepts is a policy which, on the evidence, was formulated on behalf of the Government as a whole and imposed, so as to ensure consistency of approach, upon all law enforcement agencies seeking to use intercepts as an intelligence gathering tool. It is, I have found, a rational policy which strikes an acceptable balance between the various competing interests. It is a policy which has been consistently implemented over a number of decades. It is a policy which, according to the evidence, is under regular review. 89.In the circumstances I find no substance in this submission. The constitutionality of sec. 33 of the Telecommunications Ordinance 90.The Accused seek to persuade me that fundamental to the success of the application for stay is a consideration as to whether or not to sec. 33 is inconsistent with the Basic Law. 91.The issue was argued on behalf of the prosecution by Mr McCoy SC. It was his position from the outset that this is an issue which it is unnecessary for me to determine for the purpose of disposing of these applications. 92.Although Mr McCoy suggested that I should make an interim ruling on whether I need make any such finding, thus sparing him the necessity of making submissions in reply, it seemed to me, for reasons which I gave at the time, that the appropriate course was for the prosecution to advance all of its submissions on each of the issues raised on behalf of the Accused albeit that, dependent upon my final ruling, and as it eventuates, some may ultimately prove to have been unnecessary. 93.The basis upon which this initial submission was made is that there is a well settled line of authority, common to a large number of jurisdictions which, in essence, indicates that a court should not make a ruling upon the constitutionality of legislation unless it were unavoidable as the only way of determining the issue before it. It is unnecessary to quote extensively from the number of authorities to which I was referred in this connection but helpful to note the similarity of approach and wide ranging adoption of that approach by different courts by looking briefly at what has been said in other jurisdictions. 94.In the United States:
in Ireland
in South Africa
in Canada
and in India
95.Now that I have arrived at my decisions in regard to the two bases upon which the Accused might be entitled to relief, it is proper for me to consider whether the constitutionality or otherwise of sec. 33 would have any effect upon either of those decisions. If it would then, obviously, it would be necessary for me to make a determination. Conversely, if the position of the Accused would be unaffected by any such determination then I cannot regard it as necessary for me to make it for the purpose of determining these applications. 96.The destruction of materials about which complaint is made was effected by the ICAC in pursuance of a policy with which it was required to comply if it wished to engage in telecommunications intercepts. Even assuming, but without deciding, that sec. 33 were to be inconsistent with the Basic Law and consequently no longer of any force or effect that fact taken on its own would neither assist the Accused in establishing that it is impossible for them to have a fair trial nor alter the nature of the conduct of the ICAC, in carrying out the telecommunications intercepts or destroying the subsequent product, so as to characterise that conduct as unconscionable, being possessed of "serious fault" or mala fide. 97.It follows that, as interesting as the debate about sec. 33 may be, the position of the Accused will not be affected by any decision. As a result it seems to me to be appropriate to follow the line of well-settled authorities to which I have made reference. I consequently decline to enter into a consideration of that issue. 98.I am conscious of the fact that this precise point of constitutionality is to be heard by the Court of First Instance consequent upon judicial review proceedings. I am also conscious of the possible consequences of any ruling finding sec. 33 no longer to be of force. Those issues play no role in my decision. I am satisfied, simply, that it is not a matter in which there is any necessity for me to make a determination for the purposes of disposing of these applications. Conclusion 99.In respect of the first basis upon which the applications are based, each Accused has failed to discharge the onus upon her to satisfy me that it is impossible for her to have a fair trial. In respect of the second basis upon which the applications are made, I am not satisfied that this is an appropriate matter in which I should exercise my discretion in favour of the Accused and stay the proceedings. 100.In the circumstances the application by each of the First and Second Accused fails and the trial on all of the respective charges is to proceed against each of them.
Please refer to CACC26/2006 for the relevant appeal(s) to the Court of Appeal. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCC 367/2004