HKSAR v. Wong Kwok Hung

CACC 40/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 40 OF 2006

(ON APPEAL FROM DCCC 62 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, McMahon J & Lunn J in Court

Date of Hearing : 19 December 2006

Date of Reasons for Judgment :   19 January 2007

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REASONS  FOR  JUDGMENT

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McMahon J (Giving Reasons for Judgment of the Court):

1.The applicant was convicted after trial before Deputy District Judge Ma in the District Court of separate offences of soliciting and accepting an advantage contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, being charges 1 and 2 respectively on the charge sheet.  He was acquitted of a further 12 charges of furnishing false information contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210. 

2.He now seeks leave to appeal his convictions.

3.The prosecution case at trial was that at the time of the offences, the applicant was the chairman of the incorporated owners of a housing estate in Ma On Shan.  That housing estate provided contracted bus services to its residents.  Mr Wong Chi Man (PW1) was the proprietor of the bus company which in 2003 and early 2004 provided the bus service.  His licence to operate that service was issued by the Hong Kong Government Transport Department and was due to expire in April 2004.  To renew that licence, PW1 required the support of the applicant.  In February 2004 the applicant solicited a payment of $100,000 from PW1 in return for that support.

4.PW1 reported the solicitation to the ICAC on the 5 March 2004 and the ICAC commenced an investigation using PW1 as an undercover agent.  PW1 had further meetings and telephone contacts with the applicant which were recorded by audio tape.

5.Eventually on 23 September 2004, over six months after the original complaint, PW1, during a meeting with the applicant in the applicant’s office, provided him with $30,000 in marked cash.  Subsequently, ICAC officers entered the applicant’s office and arrested him.  The $30,000 was found on an awning below the applicant’s office window.

6.Prior to the commencement of his trial, the applicant mounted two applications.  The first was that the prosecution of the 2^nd charged offence of accepting an advantage should be stayed.  The basis of this application was that the applicant had been entrapped into accepting the advantage (i.e. the $30,000 cash) by the ICAC and that to allow the prosecution to proceed was an affront to public justice.

7.The second application was that evidence of conversations between the applicant and PW1 which took place after PW1 had made his initial complaint to the ICAC should be excluded from the trial because those conversations took place in circumstances which abrogated the applicant’s right of silence.

8.The trial judge rejected both applications.  The trial proceeded.  The judge subsequently convicted the applicant at least partly on the basis of the evidence of those conversations.

9.The applicant, represented by Mr Lloyd of counsel, advanced two grounds of appeal :-

1.     that the judge was wrong to refuse to stay proceedings on Charge 2;  and

2.     that the judge was wrong to admit evidence of the post-complaint conversations between the applicant and PW1.

It was not suggested by Mr Lloyd that if the stay application was rightly rejected and the evidence of the conversations rightly admitted that there was any other basis to challenge the applicant’s convictions. 

10.At the conclusion of the hearing before us, we dismissed the application and reserved our reasons.  We now give those reasons.

Ground 1 - Entrapment

11.Mr Lloyd argued that the 2^nd charged offence, that is, of accepting an advantage, occurred in circumstances which amounted to "state created" crime and the prosecution of that offence should not have been allowed by the trial judge.  He says that the judge fell into error in exercising his discretion by not properly applying the correct principles of law and by not sufficiently taking into account the circumstances of the case.

12.The factual background relied upon by Mr Lloyd to support these assertions was that following PW1’s complaint to the ICAC on 5 March 2004 he met with the applicant and contacted him by telephone on a number of occasions.  Before meeting with the applicant PW1 was supplied by the ICAC on occasion with a large sum of marked money.  On some occasions when they met PW1 asked the applicant when it was that he should pay the money requested.  One each of those occasions the applicant gave a non-committal reply.  This sequence of events repeated itself a number of times between March and September 2004.  The money provided to PW1 by the ICAC was never given by him to the applicant until on 23 September 2004 PW1, at another meeting with the applicant in the applicant’s office, produced $30,000 cash he had been given by the ICAC as part payment of the $100,000 solicited by the applicant in February of that year.

13.On this occasion the applicant accepted the money and placed it in his desk drawer.

14.PW1 then left the applicant’s office and the ICAC, who had been monitoring the meeting, then attempted to gain entry.  They were delayed by the locked iron grille at the entrance to the office allowing the applicant sufficient time to throw the money out of the office window to an awning below from where it was subsequently recovered.

15.Mr Lloyd argues that the history of the meetings between the applicant and PW1 plainly establishes that PW1 actively sought to provide the $30,000 cash to the applicant and by doing so overstepped the line between merely allowing the applicant an opportunity to accept the money and unacceptably creating an offence where otherwise no offence would have been committed.

16.There is no doubt that in Hong Kong a trial judge has jurisdiction to stay proceedings in a criminal trial on the basis that a defendant was subjected to entrapment by the relevant investigating authority.  See HKSAR v Lee Ming Tee & Anor. [2001] 4 HKCFAR 133 at 149-150 per Ribeiro PJ (Lee Ming Tee (No.1)); R v Horseferry Road Magistrates’ Court, Ex Parte Bennett [1994] 1 A.C. 42; R v Latif [1996] 1 WLR 104 H.L. 

17.This is so even if the trial of the defendant could be conducted fairly.  A court has a general jurisdiction to stay a trial where for other reasons it would be wrong to proceed.  Entrapment by police or other investigating officers can amount to a sufficient reason. 

18.Mr Lloyd concedes that, subject to his further arguments on the admission of evidence, the applicant’s trial was conducted fairly.

19.Before exercising his discretion to stay a criminal trial on the basis of entrapment a trial judge would have to be satisfied that if the trial were to continue it would be an abuse of process “which amounts to an affront to the public conscience with severe consequences for public confidence in the administration of justice”: HKSAR v Lee Ming Tee & Securities and Futures Commission (Intervenor) [2003] 6 HKCFAR 336 at 394 (Lee Ming Tee (No.2).  Similar language was earlier used by Lord Steyn in R v Latif and by the court in R v Horseferry Road Magistrates’ Court, Ex Parte Bennett.  Other formulations have been used by Lord Nicholls in R v Looseley [2002] 1 Cr. App. R. 29 at 369 who referred to the conduct of the law enforcement agency being “so seriously improper as to bring the administration of justice into disrepute” and by Lord Bingham of Cornhill CJ in Nottingham City Council v Amin [2000] 1 Cr. App. R. 426 who referred to circumstances where the conviction of the defendant would be “deeply offensive to ordinary notions of fairness”.

20.These formulations are substantially the same and convey the plain understanding that a stay of a criminal trial on the basis of entrapment of the defendant by the investigating officers should only be granted in exceptional circumstances.

21.The concept of entrapment is wide.  It encapsulates police behaviour ranging from “test purchasers” where officers may purchase a suspected prohibited item from a vendor in a public place, through “decoys” where undercover officers may pose as potential victims in a known crime spot to “undercover” officers who may be embedded deep within the ranks of a criminal organization and be required to play a role as supporters of that organization and its activities.

22.Because of the range of circumstances in which the claimed entrapment may occur there is no one golden test which can be applied to all, and a number of matters have come to be thought often appropriate for a trial judge to consider in exercising his discretion whether to stay the proceedings or not : see R v Looseley per Lord Nicholls at 368-370.

23.One such consideration and a frequently cited principle, concerns whether the police investigating authority did no more than provide the defendant with an unexceptional opportunity to commit the offence.  If that is so, then it may well be no entrapment has taken place.

24.In R v Looseley Lord Nicholls emphasized that this “opportunity test” was predicated on the investigating officers doing no more than other members of the category of the public who had dealings with the individual would do, such as approaching a suspected drug dealer and purchasing drugs.  The logic of that proposition is based on the assumption that such a person has already formed a generic intent to commit such an offence and the investigating officers are not inciting or creating a criminal offence which would otherwise not have occurred.  If on the other hand the police pestered a drug addict to provide them with drugs so threateningly or persistently that his reluctance to do so was overborne, then in those circumstances both the criminal act and the criminal intent were created by the police and it may well be that a stay was justified : see R v Looseley and the references therein to Teixeira de Castro v Portugal [1998] 28 E.H.R.R. 101.

25.Another frequently relevant circumstance is the nature of the offence.  It may well be that where serious offences are of a sort normally carried out in secrecy and are difficult to detect, then a more pro-active role on the part of the investigating authority is both necessary and excusable.  The public conscience would not be easily affronted by an undercover officer behaving more actively and even appearing to have enthusiasm for the activities of a drug ring or triad society in the course of his investigation.

26.It will very often be a question of proportionality.  Given the nature and seriousness of the suspected crime, the trial judge will have to determine whether the investigating authority’s activities and behaviour remained within acceptable bounds or went too far.  It is important to remember that even if, in the view of the trial judge, the police or other investigating officers’ activities, in creating circumstances where the crime was committed, went beyond what was reasonable or necessary, that is not always the end of the matter.  The court must be satisfied that the investigators’ role in the defendant’s commission of any offence was an affront to the public conscience before a trial will be stayed on the basis of entrapment. 

27.In the present case Mr Lloyd points to the fact that PW1 had on a number of occasions, before the day of the applicant’s arrest, raised the question of payment with the applicant but that the applicant had not taken matters further, so that on the day of the applicant’s arrest the applicant had accepted the $30,000 marked cash from PW1 only as a result of PW1 effectively offering him a sum of money on that and previous days. 

28.Mr Lloyd says that in exercising his discretion to refuse a stay of proceedings the judge failed to take into account or give sufficient weight to PW1’s repeated “urging” of the applicant to accept the money in circumstances where over many months the applicant had shown little inclination to take it.

29.Between 5 March and 23 September there were twenty-three meetings or telephone contacts between PW1 and the applicant.  On only six of those occasions did PW1 mention the payment of money.  In brief the mention of payment of the earlier solicited sum can be summarized as follows.

30.On the 19 March the applicant at a meeting with PW1 discussed how he was able to influence the contract for the bus route.  PW1 then reminded the applicant that the applicant had said on an earlier occasion that PW1 could have the route for $100,000.  The applicant confirmed he would get the route for two years and that PW1 could pay in two instalments.  On the 18 June at a meeting PW1 again repeated the terms of the applicant’s earlier offer and the applicant asked him to write those terms on a piece of newspaper.  On the 17 July the applicant at a meeting with PW1 said he would deal with the payment of money on another day.

31.On the 19 July PW1, at a meeting with the applicant, asked him when he should give the applicant “the stuff” (i.e. the money).  The applicant said he would contact PW1 by telephone.  On the 30 July during a telephone conversation PW1 told the applicant that he would go to the applicant’s office that afternoon and give him various documents and “the stuff”.  The applicant said he would not be at his office that afternoon.  On the 17 August 2004 PW1 telephoned the applicant and told him that as the route licence had been successfully renewed he wanted to give him “the stuff”.  The applicant replied that he would deal with it later when they had tea together.

32.Against that background PW1 went to the applicant’s office on the 23 September 2004 and after discussing matters relating to PW1’s coach business asked the applicant when he would handle “the stuff”.  The applicant told PW1 that it was up to him.  PW1 then said he had $30,000 with him at that time and would provide the rest later.  He took out the money and gave it to the applicant who put the money in a drawer of a desk in his office.  PW1 then left and ICAC officers, after being briefly delayed by the locked front grille, gained entry to the office.

33.We might add that there were many other meetings and telephone conversation between PW1 and the applicant in addition to these occasions.  Those other meetings and conversations dealt in the main with more mundane matters relating to PW1’s coach service and also with the subject matter of Charges 3 to 14 on the charge sheet relating to the solicitation of allegedly false invoices by the applicant and his wife from PW1.

34.In his ruling the judge referred to the general principles concerning a stay of criminal proceedings because of entrapment.  He referred briefly to Looseley, Lee Ming Tee (No. 2) and Latif and then summarised the law as follows :

“First, the judge may stay a criminal proceeding on broader considerations of the integrity of the criminal justice system even if a fair trial is possible, Lord Steyn in Latif. 

Second, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process which amounts to an affront of the public conscience and requires the criminal proceedings to be stayed.  Reference can be made to R v Horseferry Road Magistrates’ Court, Ex Parte Bennett.

(3), it is generally recognised that only in exceptional circumstances would a stay be granted when a fair trial is possible.  Reference can be made to R v O’Connor.

(4), in the absence of a finding of bad faith, this standard will rarely, if ever, be satisfied in a case where a fair trial is still possible.  Reference can be made to Lee Ming Tee (No.2).

(5), in exercising the discretion, the court has to weigh the effect of the abuse against the public interest in ensuring that those that are charged with grave crimes should be tried.  That refers to a passage by Lord Steyn in Latif.”

In our view the judge correctly had in mind the general principles of law governing his exercise of discretion.

35.He then went on to deal with the circumstances of the case.  He was aware that during a period of over six months PW1 had at different times raised the subject matter of money with the applicant.  The judge said in that regard.

“During the period between March and September 2004 PW1, on several occasions, took the initiative to remind D1 of the money or stuff he asked for in relation to the renewal of the licence.  On some occasions D1 did not respond with a quickness and enthusiasm but he never rejected or resisted the suggestions made by PW1.”

He considered the submission that PW1 had been too persistent in raising the question of payment with the applicant :

“It would have been better for PW1 to have assumed a more passive role in the making of the reference of payment but it was far from being an abuse.  Even if the court finds that the case was not handled by the ICAC in a perfectly proper manner,…”

and concluded :

“…one has to approach the application with commonsense.  If it was a case where there was no solicitation made by D1 and PW1 was manipulated by the ICAC to lure or entice D1 into accepting an advantage, then the court is more likely to find a case of abuse of process.  There was no abuse of process nor was there any affront of public conscience.

Corruption is a serious crime.  Regard has to be made to the public interest of demanding a person charged with a serious offence be brought to trial.  The application for an order of permanent stay of Charge 2 is not entertained.”

36.There was no suggestion that the ICAC or PW1 were acting in bad faith.  The essential complaint of the applicant was that PW1 had persistently urged him to accept payment of the money earlier solicited by him.

37.Given the number of meetings between PW1 and the applicant between 5^th March and 23^rd September 2004, the subject of PW1 paying the applicant for the renewal of his company’s licence was raised on relatively few occasions.  In the context of the frequent contacts between PW1 and the applicant, most of which involved other matters and the moderate and non-forceful language used by PW1, it cannot be said that PW1 pestered or urged the applicant to accept the payment in any excessive or unusual way.  Importantly it must be remembered, as the judge said, that PW1’s raising of the question of payment was in the context of the applicant’s earlier solicitation.  The applicant had already expressed an intention to accept the corrupt monies and had paved the way for the payment made eventually on the 23^rd September 2004.

38.It is apparent that the judge applied the correct principles of law and was well aware of the relevant circumstances relied upon by the applicant to support his application for a stay.  His conclusion was essentially that the serious nature of the offence justified PW1’s somewhat active role in raising the subject of payment of money with the applicant on the occasions that he did.  He balanced the behaviour of PW1 (who he accepted was acting on the instructions of the ICAC) against the considerable public interest in a person charged with a corruption offence being brought to trial.  He plainly concluded that the facts of the case were not so exceptional as to warrant a stay of proceedings.

39.In our judgment the judge sufficiently addressed the relevant circumstances relied upon by the applicant in his application to stay the trial and correctly applied the law. 

Ground 2

40.At trial counsel for the applicant applied for the exclusion of the evidence of the conversations between the applicant and PW1 which occurred after PW1 had made his initial complaint to the ICAC on the 5 March 2004.  He did so on the basis that the evidence was obtained in breach of the applicant’s right of silence.  Mr Lloyd argued that the judge was wrong to accept that evidence as the applicant was plainly a suspect once PW1 had made his complaint to the ICAC and was entitled to the protection of his right of silence.  Before us Mr Lloyd argued also that the fact that the conversations between PW1 and the applicant had been tape recorded by PW1 meant that PW1's right to privacy had been breached and rendered the tape recordings of those conversations inadmissible.

Right of Silence

41.Mr Lloyd argues generally that PW1 “played an active role in procuring confidential material from the applicant by deliberately engaging him in conversation over a long period of time, which conduct amounted to an interrogation” and by so doing PW1 breached the applicant’s right of silence.

42.There was no doubt that PW1 was acting, after his initial complaint, as an “agent” (in the colloquial sense of the word) of the ICAC in his dealings with the applicant.

43.Such undercover operations have caused concern previously as to the admissibility of confessional statements made by a defendant to an undercover officer or agent.  The confessional statements in the present case which are necessarily complained of by Mr Lloyd are those statements which supported the evidence of PW1 that the applicant had, in the conversation prior to his complaint to the ICAC, solicited $100,000 from him in return for the applicant’s assistance in obtaining the estate’s bus route licence renewal for PW1’s company.

44.In Secretary for Justice v Lam Tat Ming & Anor. [2000] 2 HKC 693 at 704 the Court of Final Appeal, per Li CJ, said :

“      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.”

45.The court distinguished two separate situations.  The first concerned “a confession obtained through an undercover operation where the crimes had already been committed and there is a suspect”.  The second was concerned “with the undertaking of undercover operations to uncover ongoing criminal activities.  There the accusatory stage with a suspect will generally speaking not have been reached and different considerations would apply even where incriminating admissions are made of past offences”.

46.The present case in our view is an amalgam of both categories.  The use of PW1 by the ICAC was prompted primarily no doubt by the fact that there were ongoing criminal activities arising from the applicant’s earlier solicitation of an advantage and the provision of inflated invoices.  But we accept that an additional consideration may well have been to gather evidence supportive of PW1’s claim that the applicant had earlier offered him that advantage.  In that regard in Lam Tat Ming Li CJ said of circumstances such as these :

“      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.”

47.In the judgment reference was made to the Canadian Supreme Court’s decision in R v Broyles [1991]3 S.C.R. 595. 

48.In that case after the defendant had been arrested by police for an offence of murder and was in custody, the police arranged for a friend of the defendant to be armed with a hidden tape recorder and to visit him in custody.  The purpose of the visit was to find out if the defendant had killed the victim.  The friend convinced the defendant to ignore the advice of his lawyer who had told him to remain silent and the defendant then spoke about the offence and made admissions.

49.In its judgment (given by Iacobucci J.) the Supreme Court said, in allowing the appeal, that an undercover agent of the police should not “actively elicit” a statement against interest from a suspect.  Concerning what was meant by “elicitation” Iacobucci J. said :

“      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?”

50.In our judgment these general statements of principle do not differ in any substantial way from the principles stated in Lam Tat Ming and as expressed by the majority of this court in HKSAR v Lam Hon Kwok, Popy and two others (CACC 528/2004).

51.Before the right of silence of such a suspect is breached, there must be some factor present which prompts the suspect to talk, for example, an interrogation of the suspect by the undercover agent or a special relationship between them whereby the suspect may be placed under some compulsion to speak about the subject matter of the offence which he is suspected to have committed.

52.Interrogation may take place where the undercover agent did not allow the conversation to flow naturally but was insistent on the subject matter of the offence being discussed : Lam Hon Kwok at p.19 per Cheung JA.

53.We agree with the statement of Yeung JA in Lam Hon Kwok at p.57 that :

“On the issue of the right of silence I cannot see any difference in logic whether the evidence was obtained before or after the defendant was arrested.  In both cases the …defendants were not exercising their right of silence.”

54.As to the second factor, in our judgment a special relationship which places some compulsion upon the suspect to talk about an earlier offence is not confined to formal relationships such as doctor and patient, but includes any relationship of trust, such as a family relationship or a close personal friendship whereby the suspect may be placed under a compulsion to divulge information about his role in the commission of the offence. 

55.In his ruling as to the admissibility of the evidence of the conversations between PW1 and the applicant the judge in the present case said :

“The defence takes issue on the way the payment was raised by PW1.  They were deliberately raised by PW1 in order to trap D1 or induce him to make statements incriminating himself, the defence says.  No doubt it was PW1 who initiated the matter but it does not amount to an interrogation.  There are conversations directly relevant to the issue, the admission of which would operate no unfairness on D1 when the circumstances under which the payment was raised by PW1 and the response of D1 are carefully considered by the court.  The right of silence of D1 would not be variegated and a fair trial is likely.”

56.In our view, on what we understand to have been the evidence before him, the judge was entitled to come to this conclusion.  PW1 on occasions had raised the question as to when he was to pay the “stuff”.  He had more specifically repeated the terms of what he understood to have been the applicant’s solicitation, that is, that he pay the applicant $100,000 in return for a renewal of his bus route licence for two years.

57.He more generally had asked the applicant on several occasions when the applicant would deal with the renewal of the licence. 

58.In our view the judge was entitled to find this fell short of interrogation.  PW1 may have adopted an active role in the sense of initiating the topic of the timing and terms of the payment of money earlier solicited by the applicant but in doing so he has done no more than a person made the subject of such a solicitation would have done, and done no more than draw the applicant’s attention to that subject matter and allowed the applicant an opportunity to comment upon it.  The judge cannot be criticised for his conclusion in his regard.

59.As an ancillary matter Mr Lloyd complains also that the judge in his ruling erred in deciding that the ICAC had not delayed the arrest of the applicant so as to allow the collection of the incriminating evidence against him, and in placing weight on other suspected corrupt activities of the applicant, which the ICAC were investigating and which also were the subject matter of conversations between PW1 and the applicant, to justify his delayed arrest. The judge said :

“The suspected involvement of another corruptive activity, through the use of inflated receipts, enforced the justification of the continued investigation.  In the circumstances there was no indication that the arrest was delayed to enable PW1 to obtain further incriminating admissions from D1.”

(emphasis added)

60.By that the judge plainly meant that the ICAC investigation was ongoing during the period PW1 was used as an undercover agent.  The ICAC were investigating suspected criminal activities of the applicant other than the original solicitation.  The continuing contacts between the applicant and PW1 were justifiable for that purpose and there was no evidence the ICAC wished to unfairly delay the applicant’s arrest so as to allow the applicant to admit the earlier solicitation.

61.Mr Lloyd relied on the fact that the applicant was arrested immediately after he accepted the sum of $30,000 from PW1 on the 23 September.  The judge bore in mind that when the complaint was first made by PW1 to the ICAC on the 5 March 2004 the ICAC may well have arrested the applicant then and there but concluded that :

“On 5 March it was only a bare assertion made by PW1.  Arguably, after the taped conversations on 19 March, when D1 made some reference to the solicitation, the ICAC might effect arrest on a charge of soliciting advantage.  It is equally acceptable for the ICAC to wait for the renewal of the licence.  Furthermore, the acceptance of money is evidence to substantiate the charge of soliciting.

A similar case can be found in drug-trafficking where law enforcement agents would inevitably, if a situation allows, monitor the progress of an offer to supply a large quantity of drugs until the drugs are actually delivered.”

62.Quite plainly if the commission of a serious criminal offence is suggested or instigated by a suspect the investigating authority is entitled to allow that criminal endeavour to run to completion in circumstances where the completion of the offence is relevant, as it was here, to the intent of the offender.  As the judge said, in dealing with a suspected drug trafficker police are not obliged to immediately make an arrest when the suspect proposes a drug deal to an undercover officer.  They are entitled to wait and see whether steps are in fact taken to complete the offence.

63.In the present case the acceptance of the $30,000 cash was relevant to and a result of the earlier solicitation.  That by itself was a sufficient justification for the applicant being arrested only when he accepted money he had earlier solicited.

64.The applicant’s complaint in this regard cannot succeed.

The breach of the applicant’s right to privacy contrary to Article 14 of the Hong Kong Bill of Rights and Article 30 of the Basic Law (incorporating Article 17 of the International Covenant on Civil and Political Rights).

65.This was not a matter argued before the trial judge and was raised before us for the first time by Mr Lloyd on behalf of the applicant.  We allowed him to do so.  There was sufficient material before us to let us decide the matter.  We assumed for the purposes of this application that at the time the ICAC was monitoring the conversations between PW1 and the applicant in 2004 there was a breach of both Article 14 and Article 30 because there was at that time no legal basis for this to be done.  That position was accepted by the Respondent before us.

66.In HKSAR v Li Man Tak [2006] HKC 293 this court dealt with the admissibility of evidence obtained in such circumstances.  Yeung JA said :

“However it is important to bear in mind that evidence obtained in breach of the right of privacy is not inadmissible per se. The court has to carry out a balancing exercise “in which the fact that there has been a breach of the accused’s guaranteed right is a very important but not necessarily determinative factor”. (Per Blanchard J in R v Shaheed [2002] 2 NZLR 377 at p. 419)”

and referred to the earlier decision of this court in HKSAR v Chan Kau-tai [2006] 1 HKLRD 400 where Ma CJHC said at page 443 A-C:

“…First, account must of course be taken  by the court of any breaches of rights contained in the Basic Law or the ICCPR. Second, any breach as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach: the court still retains discretion to admit or exclude the evidence.   Third, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach”.

and later at pages 444J – 448G:

“…

In the present context, there are two main competing interests, both facets of what can broadly be called the public interest: on the one hand the interest  in protecting and enforcing constitutionally guaranteed rights; on the other, the interest in the detection of crime and bringing criminals to justice.

…

The balancing exercise that faces the court in the exercise of its discretion in each case where there has been a breach of or derogation from constitutional rights, involves a consideration of the two facets mentioned in the last paragraph. The objective of the exercise of judicial discretion is to ensure that a fair trial of the accused takes place.

…

In considering the fairness of a trial, the court must take a broad view of the overall circumstances. The court must look at the fairness of the actual trial itself: for example, whether the evidence obtained in breach of constitutional rights is reliable in the first place. Thus, for example, evidence which has been ‘tricked’ out of a person (say, by inducements improperly made) may be so inherently unreliable that it ought to be excluded.

…

Where the gravity of a breach or derogation is small but the crime involved is a serious one, the public interest will lean more favourably towards the latter factor with the consequence that any evidence obtained as a result of the breach or derogation will be admitted…”

67.In the present case the applicant’s right to privacy was not breached in bad faith.  At the time of these events, contrary to what was perhaps common understanding, there was no sufficient legal procedure in place so as to allow surveillance of this sort to take place.  The breach was in that sense inadvertent.  Additionally the right to privacy, while important, is not the most fundamental of the rights guaranteed by Hong Kong’s constitutional legislation.  The right to a fair trial, for example, is of fundamental importance.  Accordingly while there was therefore a breach of the applicant’s right, it was not of the most fundamental sort, although it is fair to say it was reasonably extensive in that it persisted over six months.  It was, however, limited to his meetings and telephone contacts with PW1.

68.Balanced against the breach of the applicant’s right is the seriousness and nature of the crime under investigation and the public interest in having such offences investigated and prosecuted.  In our view that latter public interest outweighs the breach of the applicant’s right by a considerable margin in the present case.  Additionally there was nothing to suggest that the unlawfully obtained recordings were unreliable or their provenance unable to be tested.  PW1 was obviously present when the recordings were made and was able to be questioned about their making.  As were the ICAC officers who handled them.  Indeed the production of the recordings contributed to the reliability of the evidence in the trial as without them evidence of the conversations between PW1 and the applicant would have been restricted to PW1’s recollection of events.  That would have been an extremely undesirable course of events as it would have required the best evidence of the content of those conversations to be ignored.

69.There was no suggestion that the recordings were made out of context.  No substantial complaint concerning any unfairness to the applicant resulting from the production of the tapes was or could be made by Mr Lloyd and we can see no unfairness to the applicant in the conduct of the trial brought about by the admission of the recordings.  The public interest in prosecuting corruption offences in Hong Kong is very high.  In the circumstances of this case it was right that the trial proceed.

70.The appeal was dismissed for the above reasons.

71.We make one final comment.  The applications before the trial judge were made with little notice to either the court or prosecuting counsel.  Applications such as the trial judge had to deal with which are concerned with the constitutional rights of a defendant or involve assertions of an abuse of process are often time consuming and complex and require considerable thought as to how to proceed evidentially.

72.We endorse the observations by Stock JA in Secretary for Justice v Shum Chiu, CACV 50, 51 & 52/2006 (unreported) at paragraph 65:

"A note must be sounded about practice in relation to stay applications.  Such applications have now become frequent at all first instance levels.  It is unacceptable to spring these applications upon the prosecuting authority and upon the courts without proper notice both as to the grounds of the application, supported by written argument, chronology where appropriate, and the cases to be cited.  If ample notice is not given the court should of its own motion and in the absence of sound reason to the contrary, vacate the hearing."

Mr Alex Lee, SADPP, of the Department of Justice, for the Respondent

Mr Ian Lloyd and Ms Catherine Wong instructed by Messrs Ho, Tse, Wai & Partners for the Applicant