Re Ko Kit

CACV 138, 139 & 140/2008

CACV 138/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2008

(ON APPEAL FROM HCAL NO. 45 OF 2008)

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AND

CACV 139/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2008

(ON APPEAL FROM HCAL NO. 44 OF 2008)

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AND

CACV 140/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 140 OF 2008

(ON APPEAL FROM HCAL NO. 46 OF 2008)

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Before: Hon Stuart-Moore, Ag CJHC and Stock JA in Court

Date of Hearing: 27 May 2008

Date of Judgment: 27 May 2008 

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.These are appeals from a judgment of Hartmann J on 16 May 2008, by which he refused three applications for leave to apply for judicial review.

2.The appellants (we shall refer to them as “the applicants”) are three defendants in a criminal trial before Judge Yau in the District Court where they are charged with conspiracy to defraud and conspiracy to accept advantages.  The alleged offences go back to 2003 and 2004.

3.The proceedings have a long history, into the details of which it is not necessary to go, save to say that the applicants were arrested in February 2004, that is, over four years ago.  The trial was originally fixed for September 2005 and there has been a history of adjournments since then, some of the behest of those acting for the applicants, some upon application by the prosecution.  Eventually the trial was re-fixed for 27 October 2007.

4.Some days later and without prior notice, the defence applied for a permanent stay of proceedings.  The ground of that application with which we are concerned is the recording of part of a conversation between the second applicant and her solicitor at that applicant’s offices.  It was argued that that conduct was such an affront to the public conscience that it would be an abuse of process to permit the prosecution to continue.

5.On 19 November 2007, the judge refused the stay application but, so we have been told, reserved the right to review that decision until conclusion of a voir dire in relation to the admissibility of other evidence.  The decision was affirmed in a ruling that is dated 3 April 2008 and it is in respect of that ruling, which dismissed the application for a permanent stay, that the application for leave to apply for judicial review was launched.

6.The trial on the general issue is due to commence on 10 June 2008.  That is why this appeal is heard as a matter of urgency.  Directions were given last week for the presentation of written submissions and authorities, and we are grateful to counsel for their efforts in the short time available.

7.It will at once be appreciated that this is yet another collateral challenge to ongoing criminal proceedings, a practice in this jurisdiction which we felt compelled to address and decry in Yeung Chun Pong and others v Secretary for Justice [2008] 2 HKC 46.  However, the applicants say that what transpired in the course of the ICAC investigation in this case was such an obvious affront to the public conscience, that, if the correct principles had been applied by the District Court judge, a stay of proceedings was inevitable and that it would be unacceptable in the circumstances to expect the applicants to go through a lengthy trial prior either to an acquittal on the merits or, if convicted, to an appeal that is destined, they say, to succeed because of the point taken in the proposed review.

The facts

8.Putting the matter briefly, what happened was this.  The ICAC had commenced covert investigation at the offices of a company run by the second applicant, Ms Ko, who was assisted by the third applicant, Chan.  The investigation was into a syndicate suspected of smuggling cigarettes.  All three applicants were arrested on 23 February 2004 and the events with which this application is concerned took place on 27 February 2004.  On the morning of 27 February, a solicitor went to the company offices and had a conversation with Ms Ko.  The device by which recordings were already undertaken in the covert operation continued to function during the course of that conversation which, it is accepted, was a conversation covered by legal professional privilege.  It is the fact of that continued recording, plus the fact that the conversation was logged and transcribed and listened to by some ICAC officers thereafter that is said to constitute the abuse in question.

9.A large number of witnesses gave evidence in the District Court in relation to the stay application.  The effect of that evidence and the judge’s findings are summarized in his ruling.

10.Despite the fact that the defendants had been arrested on 23 February, the recording device continued to function after that date.  This was for a number of reasons which it is not for present purposes necessary to recount.

11.There is a hierarchy of officers who featured prominently in the story relevant to the stay application:

(1)   Mr Tso, PW1, a principal investigator;

(2)   Mr Simon Ho, PW5, a chief investigator;

(3)   Mr Ng, PW4, a senior investigator;

(4)   Mr W. Ho, PW7, an assistant investigator; and

(5)   Mr Tse, PW3, another assistant investigator.

12.In his summary of the evidence, the judge says that Mr Simon Ho briefed the officers who were monitoring at the observation post to “watch out for the safety of the undercover agents and to report to senior officers any special happenings including the obtaining of legal advices by the defendants.”  Different interpretations have been placed on this by counsel which it is not possible for us to adjudicate in the absence of the evidence itself.  We cannot, however, imagine in the light of the rest of the ruling that the evidence was to the effect that there was a specific instruction to tape-record legal advice.  It seems much more likely that the effect of the evidence was that officers were to report back if “special happenings”, such as the seeking of legal advice, was forewarned so that appropriate steps might be taken.  But in any event, it transpires that this particular comment is not at the heart of the application.

13.Between 10:15 am and 10:38 am on 27 February, Mr Tse heard Ms Ko give her office address to a solicitor.  A solicitor arrived and entered Ko’s office at 10:41 am.  Tse reported the matter to Ng who told him to “wait-and-see”.  Tse monitored the conversation and made entries in a log.  The solicitor and Ms Ko left the room and returned shortly after and the recording carried on.  The conversation was in Putonghua which neither Tse nor Ng understood well.  It seems that Ng’s evidence was that he did not think that the conversation concerned professionally privileged matter but he nonetheless reported the matter to his superior, Mr Simon Ho.

14.At that point Mr Simon Ho reported the matter one rung up the seniority ladder to Mr Tso who gave instructions that all ICAC officers were to be withdrawn from the offices immediately.  The recording itself was not turned off because the officers were under the mistaken belief that the recorders had been designed to maintain the integrity of the evidence and could not be turned off.  Be that as it may, all the officers left the observation post at 11:15 am.  Instructions were given for the recording system to be removed and that was done later in the day.

15.Mr Tso also issued instructions that that his approval was required before the recording of the meeting between Ms Ko and her solicitor could be viewed.  Both the tape and the event log were kept in safe custody.

16.However, Mr Tso said that he watched the recording of the first part of the meeting and on his instructions both parts of the meeting were transcribed, and a certified translation obtained.  Another chief investigator, Mr Leung, who was Mr Tso’s successor, watched the tape for the purpose, he said, of preparing the present case and he served a copy of it on the first applicant.

The ruling

17.There is a relatively detailed analysis by the judge.  In it, he cites at length cardinal principles relating to legal professional privilege and its importance.  He cites R v Grant [2006] QB 60 – a case that was decided upon an appeal from a conviction – in which it was held that:

“52.  Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court’s process. ….

54.   … we are no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person’s right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court.

….

56.   Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case.” (Emphasis added)

18.He cited as well a judgment of this Court to much the same effect: Secretary for Justice v Shum Chiu and others [2008] 1HKLRD 155.  

19.He stated, however, that a knowing intrusion on legal professional privilege, although a matter of considerable gravity, was not necessarily conclusive of an application for a stay.  The full circumstances of that intrusion in the context of the case as a whole had to be investigated in order for the court to answer the question whether the conduct so affronted the public conscience that a stay was demanded, remembering that the power to order a stay was one that was to be exercised most sparingly: HKSAR v Lee Ming-tee & Another (2001) 4 HKCFAR 134; and that even where there was a finding of bad faith, such a finding would not necessarily conclude the matter: HKSAR v Lee Ming-tee & Another (2003) 6 HKCFAR 336.

20.He found as follows:

(1)   that the ICAC had “acted in good faith in carrying out the covert surveillance in which the meeting was recorded”.  In full context, we understand him to be saying by this that the surveillance was not itself mounted in order to catch privileged conversations.  It had for long been running to investigate allegations of bribery and was directed at the office of Ko and not at a solicitor’s office.  In this regard he noted that there was no evidence that lawyers would frequent these particular premises and “the chances of the device picking up conversations protected by LPP was naturally slim”.  (This, we note in passing, contrasts with Grant and with another case drawn to our attention by the applicants, R v Sutherland and others, Nottingham Crown Court 29 January 2002, unreported, a ruling by Newman J, where the police originally set out to intercept privileged conversations.);

(2)   that although it was known that a solicitor was going to visit Ko at the offices, the ICAC did not know that the solicitor was the same one who had visited Ko after her arrest;

(3)   that the ICAC did not know that there was to be a legal consultation, and the instruction to “wait and see” was just in order to find out what was happening.  He accepted the evidence of senior investigator Ng that at the time he gave the instruction to “wait-and-see”, he did not think that the meeting concerned LPP.  He found, however, that once Tse heard Ko tell the solicitor that she did not know Hong Kong law, the ICAC ought to have known that the meeting would involve the giving of legal advice and was therefore privileged and that the continued recording of the meeting and the making of the log entry therefore constituted a deliberate instruction of Ko’s privilege.  He found, however, that the breach was not occasioned by an ulterior intent or motive.  He said that “when PW3 committed a breach he was doing the job assigned to him by his senior officer.  He informed [Mr Ng] about the meeting.  Although [Mr Ng] did not know about the legal consultation at that stage and did not regard the meeting as privileged he still took the initiative to obtain instruction from [Mr Tso] through the chain of command”;

(4)   that an instruction was swiftly given for all ICAC personnel to be withdrawn from the observation post and the covert surveillance as a whole immediately to be terminated.  “This,” said the judge, “was a prudent measure by ICAC to avoid recording any more meeting between any of the defendants and their lawyers”.  This conduct, he held, showed that the ICAC genuinely had no intention of intruding into privileged material; and

(5)   that there was no attempt to conceal the fact of monitoring and recording of the meeting and that the subsequent transcription of the recording was done as part of “the procedure of discovery in preparation of the case for trial”  Here again, some issue was raised in the course of the hearing before us today about a particular summary of the ruling of the evidence given by Mr Simon Ho, to the effect, so the summary ran, that he “watched the tape containing the meeting between D2 and the solicitor for the purpose of preparing the present case in May 2007 after obtaining approval from PW1.”  Mr Chang SC says this was for use at trial.  Mr Lee for the respondent says it was for the purpose of discovery.  The judge would appear to have found the latter.

21.The judge decided that in all the circumstances he had described “the breach of the LPP of (Ms KO) by the ICAC falls short of being such an affront to public conscience or justice as to justify the proceedings to be permanently stayed.  The application of the defendants is accordingly refused.”

Argument

22.The applicants emphasize the importance of legal professional privilege.  That is not a contentious issue.  It is said in argument before us that the right is absolute and there have been cited a number of cases to that very effect.  None of those cases was a stay application and they establish the nature and extent of privilege and go to questions such as admissibility.  Nonetheless, in so saying we do not seek in any way to minimise the cardinal importance and fundamental nature of legal professional privilege.

23.The applicants attack the finding of the judge that the ICAC had acted in good faith.  They say that the evidence disclosed deliberate breaches of legal professional privilege, and that the judge failed to acknowledge that the affront to the public conscience and to the rule of law is not less an affront because of inadequate safeguards or ignorance of the law on the part of a junior officer; and they cite in support of this proposition a statement to that effect in Shum Chiu.  Finally, they say that in the circumstances it is artificial and oppressive to require the applicants to wait to raise the matter upon an appeal in the event that they are convicted: the proceedings should now be stayed.

24.Although the privilege of the first and third applicants has not been breached, those applicants say that the proceedings ought to be stayed as against them as well because it cannot be known what use has been made, in furtherance of the prosecution, of material that emerged from the privileged conversation.  It is relevant to note that the application by the first and third applicants for a stay was not advanced on the basis that they could not obtain a fair trial, but rather on the basis that a stay in the second applicant’s favour must necessarily enure to their benefit.  It follows that in the event that we were not to grant leave to the second applicant, Ko, on the sole basis upon which the application was run in the District Court, namely, an abuse based upon on affront to the public conscience, there is no issue for this Court to consider whether leave should be granted to the first and third applicants on the basis that, because of the breach of the second applicant’s legal professional privilege, they cannot secure a fair trial.  There is an interesting argument by the first and third applicants based on reasoning in Sutherland, which we would have to address in the event of granting leave to Ko.  It is an argument that would arise because of the respondent’s stand that the tapes were in fact disclosed to all defendants and that no fruit was yielded from the infringement of legal professional privilege.  The contention advanced by Mr Chang SC, and adopted by Mr Cheng Huan SC, is that that cannot avail the respondent because the second applicant’s privilege has never been waived.

The first instance judgment

25.Hartmann J emphasized, by reference to R v Latif [1996] 1 WLR 104, the fact that the proposed application was from the exercise of a judicial discretion which requires the trial judge to decide whether the abuse has been such as to amount to an affront to the public conscience and requires the criminal proceedings to be stayed; and that it was apparent, in his view, that the District Court judge had taken all relevant factors into account and did so “by having regard to the evidence of all witnesses before him in what it is apparent were fairly exhaustive proceedings.”  He took the view that the issue was not simply whether there was or was not a deliberate breach of privilege or whether there was or was not bad faith, but that the decision of the trial judge was one that required a “nuanced exercise of judicial discretion”.  He expressed the view as well that if the exercise of that discretion was to be challenged, the challenge should be raised “within the confines of the criminal justice process by way of appeal”.

Analysis

26.The threshold for granting leave is that the court must be satisfied that an arguable case for relief has been shown: see Peter Po Fun Chan v Winnie C.W. Cheung & Another [2008] 1 HKLRD 319.

27.In most applications for leave to apply for judicial review, that issue, arguability, is the sole issue.  That is, however, not the sole issue in this application for leave.

28.As we pointed out in Yeung Chun Pong, para [62], it is trite that judicial review is a remedy of last resort and that where another adequate remedy is provided that alternative should, save in the most exceptional circumstances, be used.  In the passages that followed that reminder, we emphasized the public interest in ensuring that charges, once before a court, should be tried and that there was built into the system a prescribed appeal mechanism that did not envisage collateral challenges.  We referred to authorities in other jurisdictions to the same effect, including R v DPP ex p. Kebilene [2000] 2 AC 326, in which it was said that there was a strong presumption against entertaining a judicial review application where the complaint could be raised within the criminal trial and appeal process, and that such satellite litigation should rarely be permitted in the criminal justice system.  We referred as well to R v Liverpool City Justices and The Crown Prosecution Services ex parte Price (1998) 162 JP 766 where it was said that it was only in “a very exceptional case that this court will exercise its supervisory jurisdiction to intervene and quash the decision by the justices in the exercise of their discretion not to stay criminal proceedings for abuse of process.”  See also, to the same effect, Mo Yuk Ping v Secretary for Justice CACV 270 of 2005,  6 September 2005, unreported; and Secretary for Justice v Lee Wai Man and others [1999] 1 HKLRD 572.

29.This is, in our judgment, not a case that warrants a collateral challenge.  That is not for one moment to detract from any of the principles stated in Shum Chiu, but rather to recognise that there is in cases of breach of legal professional privilege no automatic ‘red card’.  Each case, each breach, must be viewed in the light of its own facts.

30.What must be recognised in this case is that the trial judge pointed to specific findings of fact which mitigated or mollified such sense of outrage as is naturally evoked when a breach of privilege is occasioned, especially when it is found that those responsible for the breach clearly ought to have known better.  Those factors included, but were not limited to, the swift withdrawal of all personnel and the halt to the covert surveillance.  This is not to say that the judge’s decision was necessarily correct; by which comment we do not, conversely, mean that it was necessarily incorrect.  We do not have before us the very extensive evidence which the judge had.  In the circumstances of this case and given the reasons provided by the judge, a court would, before coming to a conclusion on the matter, have to review the evidence in detail.  In the light of the judge’s careful analysis and in particular in the light of the specific reasons provided by him we could not say, on the face of matters as they presently stand, that the judge was clearly wrong (which, conversely, is not a hint that we are inclined to think he was).  That, we appreciate, is not the threshold test for the granting of leave, but it is in this case a factor in deciding whether this is one of those wholly exceptional instances in which a collateral challenge is justified.  (That, we pause again to emphasise, is not an invitation to parties hereafter to launch collateral challenges wherever they think that there is an arguable case that the trial judge has made a decision in law that is clearly wrong.  It is merely a comment made in the peculiar circumstances of this case in which there has been a breach of legal professional privilege.)  In those circumstances, we are of the view that it would be inappropriate to permit this collateral challenge to proceed.

31.That, in our judgment, is sufficient to dispose of the appeal. 

32.There is, however, one further matter that we feel bound briefly to address which is the fact that this is another instance in which the parties have sought to derive encouragement from the decision in Dairy Farm Co. Ltd v Director of Food and Hygiene [2005] 3 HKC 1.  We alluded to that decision in Yeung Chun Pong and we see that the applicants seek somehow to draw comfort from our analysis of Dairy Farm.

33.We hardly intended by our judgment in Yeung Chun Pong to do any more than to emphasize that Dairy Farm was not to be taken as authority for the proposition that judicial review was appropriate for stopping a prosecution where a court in its reviewing capacity thinks that the prosecution case is weak or that, as intimated in Dairy Farm, someone other than the defendant was more culpable, if culpability there was.  We also took pains in Yeung Chun Pong to point out that none of the authorities, in this jurisdiction and elsewhere, cited in Yeung Chun Pong that emphasized how very exceptional it was to permit a collateral challenge in criminal proceedings was referred to in Dairy Farm.  It may be that we should have engaged in a deeper analysis of that judgment, further to distinguish it.

34.We have re-read the judgment in Dairy Farm and we note, for example, that one of the matters that appears to have driven that Court to its conclusion was the absence of any reasons given by the magistrate for his refusal to stay the proceedings.  That is not the position in this case.

35.Furthermore, the Court in Dairy Farm took into account the fact that even up until the appeal the prosecution had “not demonstrated that it is prepared to present its case by giving a full and fair view to the magistrate upon which it would be proper to draw inferences that the pork in question did not come from a Government approved slaughterhouse.”  We have, with respect, some difficulty in understanding that reference because, by the stage of the judicial review, the full facts had been before the trial court, even though they had emerged in cross-examination.  As we read the matter, the prosecution’s stance at the appeal was that the fact that the pork was unstamped was, of itself, conclusive in its favour, despite the (originally undisclosed) evidence that there had been earlier surveillance that had shown nothing amiss.  Whether, in the light of all the evidence which emerged at trial, the fact of absence of a stamp was indeed conclusive was a matter for the trial court to decide.  There was, as we understand the judgment, no attempt by the prosecution witnesses when giving evidence to withhold the fact of the earlier surveillance, and certainly no attempt at the review stage or at the appeal stage of hiding evidence from the court.

36.Dairy Farm does not, in the event, help the applicants.

Conclusion

37.Accordingly, these appeals are dismissed.

Mr Denis Chang, SC, Mr Newman Lam & Ms Amanda Lee, instructed by Messrs Tung, Ng, Tse & Heung for D1 (Applicant of CACV 139/2008 – Lu Dayong)

Mr Martin Lee, SC, Mr Hectar Pun & Mr William Lam, instructed by Messrs Tung, Ng, Tse & Heung for D2 (Applicant of CACV 138/2008 – Ko Kit)

Mr Cheng Huan, SC, Mr William Lam & Mr Bernard Cheng, instructed by Messrs Tung, Ng, Tse & Heung for D3 (Applicant of CACV 140/2008 – Chan Kai San)

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