HKSAR v. Muhammad Riaz Khan

FACC No. 13 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2010 (CRIMINAL)

(ON APPEAL FROM CACC 125 OF 2003)

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Between :

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Dates of Hearing : 10 October 2011 and 7 May 2012

Date of Decision : 7 May 2012

Date of Reasons for Judgment : 22 May 2012

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J U D G M E N T

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Chief Justice Ma:

1.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

Certified questions

2.This appellant was granted leave to appeal to this Court against a judgment of the Court of Appeal which confirmed his conviction after trial in the High Court on a count of conspiracy to traffick in dangerous drugs.  He was granted such leave to appeal on one ground only.  That ground rests on a point of law certified by the Appeal Committee as the one raised by the questions:

“Where evidence has been obtained in breach of a defendant’s fundamental rights protected by the Basic Law or the Bill of Rights, does the court have a discretion as to the admission or exclusion of such evidence and, if so, on what principles should such discretion be exercised?”

Circumstances

3.Shortly stated, the circumstances of the case are as follows. The dangerous drugs concerned consisted of 1.9 kilograms of heroin inside a suitcase.  Three defendants, of whom this appellant was the second, stood trial before Deputy Judge Line and a jury for conspiracy to traffick in those dangerous drugs.  All three were convicted.  Each was sentenced to 24 years’ imprisonment.  The Court of Appeal (Stuart-Moore VP, Stock JA and McMahon J), by a commendably succinct judgment which McMahon J gave, affirmed this appellant’s conviction but quashed the convictions of the 1^st and 3^rd defendants and ordered that those two men be retried.

4.At their retrial, those two men each pleaded guilty and, receiving a one-third discount for that plea, were each sentenced to 18 years’ imprisonment.  Their convictions at the original trial had been quashed for misdirection as to the nature of the presumption arising from their physical possession of the suitcase of heroin.  That misdirection did not affect this appellant because the trial judge had told the jury that it did not apply to him.  No doubt, as McMahon J observed, the trial judge told the jury that because there was no substantial evidence that this appellant had ever been in physical possession of that suitcase of heroin.

5.It was the prosecution’s case that the three defendants, acting in pursuance of the conspiracy charged, had dealings with a man whom they believed was a representative of a potential buyer of the heroin in question.  In fact he was an agent of the United States’s Drug Enforcement Agency working undercover here in co-operation with Hong Kong’s Customs and Excise Service.  A meeting between the 1^st defendant, this appellant and the undercover agent took place at the undercover agent’s hotel room.  The conversation at the meeting related to the contents of a suitcase.  When the suitcase was later seized, it was found to contain 1.9 kilograms of heroin.  The conspiracy charged was a conspiracy to traffick in those dangerous drugs.  What was said in the conversation amounted to evidence in proof of this appellant having conspired as charged.  When he went into the witness-box, he testified that his understanding of the conversation was that it was about precious stones. Whether that was or might have been true was a matter for the jury.  The jury’s verdict against this appellant shows that they felt sure that he understood the conversation to be about dangerous drugs.

6.That conversation had been secretly recorded by customs officers, and the recording was put in evidence at the trial.  On this appellant’s behalf, it was submitted to the Court of Appeal in effect that the recording was made in violation of his constitutional right to privacy and that its use at the trial was an error of law for which his conviction ought to be quashed.

Court of Appeal’s judgment

7.By their judgment, the Court of Appeal rejected that submission.  In doing so, they began by assuming, for the purpose of the submission, that there existed a reasonable expectation of privacy in the circumstances of a conversation conducted in a private hotel room, and that at the time of the recording of the conversation, contrary to what was perhaps the common understanding, there was no sufficient legal framework in place so as to allow surveillance of this sort to take place lawfully.  Neither before the Court of Appeal nor before us has there been any argument on what difference in law there may be between a situation in which the defendant’s recorded conversation was with somebody whom he did not know was an undercover officer and a situation in which no undercover officer appeared on the scene when the defendant’s conversation was recorded.  The present case is therefore not an occasion for pronouncing on any such difference.

8.Prima facie, therefore, the Court of Appeal said, there was a breach of this appellant’s right to privacy, contrary to art.14 of the Bill of Rights and art.30 of the Basic Law.

9.Article 14 of the Bill of Rights provides:

“ (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

And art.30 of the Basic Law provides:

“The freedom and privacy of communication of Hong Kong residents shall be protected by law.  No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”

10.That prima facie breach of this appellant’s constitutional right to privacy was not, the Court of Appeal said, the end of the matter.  The Court of Appeal went on to cite three earlier decisions of theirs.  First, they cited HKSAR v. Li Man Tak [2006] HKEC 1724.  And then they cited the following from the judgment given by the then Chief Judge of the High Court in HKSAR v. Chan Kau Tai [2006] 1 HKLRD 400 at pp 443A – 448F:

“…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.

…

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.

…

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…”

11.Next, the Court of Appeal cited its decision in HKSAR v. Wong Kwok Hung [2007] 2 HKLRD 621, saying this:

“In the present case as in [Wong Kwok Hung], the right to privacy of [this appellant] was not breached in bad faith. Nor in the circumstances of the present case could the breach of that right outweigh the public interest in detecting crimes involving the importation or exportation and sale of very large quantities of dangerous drugs.”

12.Finally , the Court of Appeal said:

“Further, the evidence of the conversation in the hotel room meeting could as well have been given by … , the undercover agent, in the absence of the recording. The production of the recording simply ensured that evidence of that conversation was given in the most reliable and accurate form. Not to have admitted it in evidence would, as said in Wong Kwok Hung, have required the best evidence to be ignored. That in itself would have derogated from the fairness of the trial.

Issue at the trial

13.As the Court of Appeal appreciated, the trial court could have received the undercover agent’s testimony unaccompanied by the recording.  There was no objection to the tender of the recording and no dispute as to what had been said.  The issue was whether the appellant certainly understood the conversation to be about dangerous drugs rather than, as he testified, precious stones.  In such circumstances, no infringement of his right to privacy, even assuming there to have been such an infringement, appears to have operated to his disadvantage at the trial.

14.That, it may be said, renders the certified questions academic.  But it would breed uncertainty not to answer them. 

No absolute bar: a discretion

15.The printed case filed on the appellant’s behalf went so far as to contend that the first certified question – which is whether there is a discretion to receive evidence obtained in breach of a defendant’s constitutional rights – should be answered in the negative.  But in his oral argument, Mr Andrew Bruce SC who leads for the appellant, did not go that far. He was right not to have done so.  There is under our law no absolute bar to the reception of evidence obtained in breach of a defendant’s constitutional rights. It is a matter of discretion. 

16.That brings us to the second certified question: on what principles is that discretion to be exercised?

17.By his speaking note and in the course of his oral argument, Mr Bruce drew our attention to a number of overseas decisions.  They include: the decision of the United States Supreme Court in Mapp v. Ohio 367 US 643 (1961); that of the Supreme Court of Ireland in The People v. O’Brien [1965] IR 142 those of the High Court of Australia in R v. Ireland (1970) 126 CLR 321,  Bunning v. Cross (1978) 141 CLR 54 and R v. Ridgeway (1995) 184 CLR 19; that of the House of Lords in R v. Sang [1980] AC 402; that of the Supreme Court of Canada in R v. Grant [2009] 2 SCR 353 and that of the Supreme Court of New Zealand in R v. Hamed [2011] NZSC 101.

18.As his oral argument developed, it became clear that Mr Bruce’s only quarrel with the decisions of the Court of Appeal in Li Man Tak’s case, Chan Kau Tai’s case and Wong Kwok Hung’s case is that, he submits, they do not accord sufficient importance to the constitutional right that has been infringed.  As always, Mr Bruce has made his contention very ably.  But on a full and fair reading of those cases, they are not open to that criticism. They proceed on the footing that everybody knows how important fundamental rights are.  This is not to say that they have left it merely to be implied. Thus in Chan Kau Tai’s case at p.446 I-J the Chief Judge refers to what Lord Nicholls of Birkenhead said in R v. Looseley [2001] 1 WLR 2060 at para. 25 and what Lord Hoffmann said that case at para. 36.  At para. 25 one finds Lord Nicholls’s reference to ensuring that the administration of justice is not brought into disrepute or, which is substantially the same thing, that the public conscience is not affronted.  And at para. 71 one finds Lord Hoffmann’s reference to ensuring that the integrity of the judicial system is not compromised. 

19.It is clear that the Court of Appeal’s discussion of the factors to be taken into account when exercising the discretion proceeds upon an accurate appreciation of the importance of constitutional rights.  Wisely, no attempt is made to draw up an exhaustive list of the factors to be taken into account.

Test

20.The test can be stated thus.  Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned (iii) appears unlikely to encourage any future breaches of that, those or other rights.  The risk-assessment called for under the third element will always be made by the courts, vigilantly of course, in the light of their up-to-date experience.  Thus is achieved, consistently with the constitution, a proper balance between the interests of individual defendants and those of society as a whole.  It cannot have been the framers’ intention – and is not the constitution’s effect – to stand in the way of such of balance being struck. Just as rationality and proportionality can justify an impact on a non-absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of a constitutional right.  Under the test stated above, the discretion concerned is rational and proportionate.  The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.

Applying the test

21.Applying the test in the present case, it is appropriate to begin by stressing that the recording was not adverse to the appellant having regard to how his case was run.  But that is not to say that the recording could not properly have been received in evidence if it had been adverse to him.  At the time when the recording was made, there was no sufficient legal framework in place for the interception of communications and surveillance.  Since then the Interception of Communications and Surveillance Ordinance, Cap.589, has supplied the necessary framework.  And a recording such as this one can certainly be authorized under that Ordinance.  Even if the recording had been adverse to the appellant and even on the assumption that there existed a sufficient expectation of privacy in the circumstances, the discretion could nevertheless have been properly exercised to receive it in evidence

Result

22.In the result, for the foregoing reasons, the appeal had to be dismissed and was dismissed at the conclusion of the hearing.

Mr Justice Chan PJ:

23.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ:

24.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Gleeson NPJ:

25.I agree with the judgment of Mr Justice Bokhary PJ.

Chief Justice Ma:

26.The appeal was dismissed for the reasons given above.

Mr James W. Campbell, instructed by Pang Kung & Co and assigned by the Director of Legal Aid (for the hearing on 10 October 2011), for the appellant

Mr Andrew Bruce SC & Mr Phillip Geoffrey Ross, instructed by Hoosenally & Neo and assigned by the Director of Legal Aid (for the hearing on 7 May 2012), for the appellant

Mr Kevin P Zervos SC DPP, Mr David Leung & Ms Claudia Ng, of the Department of Justice, for the respondent