HKSAR v. Lam Hon Kwok Popy and Others
Read the full judgment text of CACC 528/2004 on BabelCite. This Court of Appeal judgment was delivered on 21 July 2006.
1. This case raises important issues on the protection of privacy rights of the citizen under the Hong Kong Basic Law and Hong Kong Bill of Rights.
Cites 9 cases
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[English Translation – 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 528 OF 2004 (On Appeal From District Court Criminal Case No. 197 of 2004) ______________________
Before: Hon Cheung JA, Hon Yeung JA and Hon Tang JA in Court Dates of Hearing: 23 May 2006, 5 and 7 June 2006 Date of Judgment: 21 July 2006 ______________________ JUDGMENT ______________________ Hon Cheung JA: 1.This case raises important issues on the protection of privacy rights of the citizen under the Hong Kong Basic Law and Hong Kong Bill of Rights. 2.The three applicants under this leave to appeal application (namely, 1st, 4thand 5thdefendants at the trial) together with two other defendants (namely, the 2nd and 3rd defendants at the trial) were charged with various offences. They were convicted as charged after trial by Deputy District Judge J Lam. The three applicants now apply for leave to appeal against conviction. The 3rd defendant had absconded from bail when the judge delivered his verdict. The 1st defendant 3.The 1st defendant was convicted of the offence of conspiracy to live on earnings of prostitution (the second charge at the trial) and the offence of incitement to commit conspiracy (the fourth charge at the trial). The particulars of the second charge stated that the 1st and 2nd defendants on various days between July 2003 and 8 September 2003 in Hong Kong conspired together and with Wong Kwok Leung to knowingly live wholly or in part on the earnings of prostitution of women. The particulars of the fourth charge stated that the 1st and 2nd defendants on 2 August 2003 in Hong Kong incited Ho Yiu Choa to conspire with the 1st defendant to commit robbery. Furthermore, the 1st defendant admitted an offence of possession of prohibited weapon (the fifth charge at the trial). The 4thdefendant 4.The 4thdefendant was convicted of two offences. The first charge was conspiracy to live on earnings of prostitution (the first charge at the trial) and one charge of conspiracy to pervert the course of justice (the sixth charge at the trial). 5.The particulars of the first charge stated that the 4thdefendant, the 3rddefendant and the 5thdefendant on various days between February 2003 and 8 September 2003 in Hong Kong conspired together and with Wong Kwok Leung to knowingly live wholly or in part on the earnings of prostitution of women. The particulars of the sixth charge stated the 4thdefendant and 3rddefendant on various days between 11 September 2003 and 30 September 2003 conspired together to pervert the course of justice by taking part in a scheme to dissuade, pressurise or prevent potential witnesses in a criminal investigation carried out by the Independent Commission Against Corruption (‘ICAC’) and to which they were subject from providing information or statements to the ICAC. The 5thdefendant 6.The 5thdefendant was convicted of one charge of conspiracy to live on earnings of prostitution (the first charge at the trial). The particulars of this charge were the same as that of the first charge faced by the 4thdefendant. Evidence of the first charge 7.The 2nddefendant is a former officer of the Customs and Excise Department, the other defendants are serving police officers. The facts of this case are fully set out in the judgment of Yeung JA. I would not repeat them here. 8.I will deal with the first charge first. Under this charge, the ICAC arrested the defendants and a person called Wong Kwok Leung between 8 September 2003 and the early morning of 9 September 2003. The ICAC had conducted investigation at a premises in Champagne Court in Tsim Sha Tsui which was involved with prostitution. It arrested two prostitutes and two staff at the premises. The two staff were Prosecution Witness No. 5 and No. 6. Their names were Tse Chun Wai (‘Chu Tsai’) and Lee Yiu Ming (‘Se Tsai’). Wong Kwok Leung was the operator of the brothel. Wong Kwok Leung did not make any admissions when he was arrested on 8 September but on the next day, he informed ICAC that he would be willing to become a prosecution witness so that he would not be prosecuted. Upon approval by the Secretary for Justice, ICAC took a non-prejudicial statement from Wong Kwok Leung. This means that the content of the statement could not be used against the person who provided the information but he could still be prosecuted by way of other evidence. In this statement Wong Kwok Leung alleged that the 3rd, 4thand 5thdefendants were partners of the brothel. Thereafter conversations either on the telephone or in meetings between Wong Kwok Leung and the three defendants were recorded by Wong Kwok Leung with a digital recorder provided to him by the ICAC. 9.At the trial the evidence against the 3rd, 4thand 5thdefendants came from Wong Kwok Leung and the recordings. The recordings in respect of the first charge are Exhibits P13 and P16. P13 contains the telephone conversation between the 4th defendant and Wong Kwok Leung on 18 September 2003. P16 is the recording of the discussion between the 3rd, 4thand 5thdefendants and Wong Kwok Leung when they met at the Flying Machine Bar at the Regal Hotel. Hong Kong Basic Law and Hong Kong Bill of Rights 10.The dispute arising from the recordings is whether the recordings made by Wong Kwok Leung under the authority of the ICAC were in breach of Article 30 of the 'Fundamental Rights and Duties of the Residents’ (Chapter III) of the Hong Kong Basic Law (‘Basic Law’), namely:
11.The rights protected by Article 39 is Article 14 of the Hong Kong Bill of Rights (‘Bill of Rights’):
and also Article 11 (2)(g) of the Bill of Rights:
The steps in dealing with the issue 12.Article 30 of the Basic Law and Article 14 of the Bill of Rights protect privacy rights. In my view, the Court should adopt the following two steps in dealing with this issue:
The first step: definition of privacy 13.In deciding whether certain act involves privacy the principle adopted by this Court (Ma CJHC, Woo VP and Tang JA) in HKSAR v. Chan Kau Tai [2006] 1 HKLRD 400 is that a right to privacy generally exists where the person in question has a reasonable expectation of privacy. In that case the ICAC installed camera and recording devices in the defendant’s office and secretly recorded the acts of the defendant in his office. This Court held that the action infringed privacy rights. Reasonable expectation 14.My view is that Hong Kong residents, which include the 3rd, 4thand 5thdefendants, have a reasonable expectation that the content of their private conversation with others on the telephone or in meetings which is intended to be heard only by the listener is private communication and consists of privacy rights and that it would not be secretly recorded by the government. The above conversation will include those conducted in the public area where the noise level of the conversation could only be heard by the listener and the conversation is only intended to be heard by the listener and not by parties other than those engaged in the conversation. In my view this is the most basic reasonable expectation. Of course, when we have a conversation with another person there exists a risk that the other person will reveal the content of the conversation, but this risk is quite different from the risk involved when the government used the other person to secretly record the conversation and turn it into evidence of a permanent form. As La Forest J of the Supreme Court of Canada said in R. v. Duarte [1990] 1 SCR 30 at page 48, these risks are of a different order and magnitude. The one risks may in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. In other words, the law recognizes that we inherently have to bear the risk of the ‘tattletale’ but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words. I disagree with the argument that what La Forest J said was based on the unique position of Canada or on its law and that his view does not apply to Hong Kong. In my view what he said involves issues of principle under human rights charters. Hong Kong has adopted these charters. The fundamental rights of citizen under these charters have common features. La Forest J at page 49 further expressed his views on secret recordings by participants to a conversation:
15.I agree that there are different levels of privacy rights but what I am concerned with is the issue of privacy that arose in this case. Other privacy issues such as infringement of privacy by the media in reporting news should be considered in another appropriate case. This case is also different from other cases such as a criminal who threatens and blackmails a victim either by telephone or face to face. In such a situation I do not regard that the criminal will have any reasonable expectation that the content of their conversation is subject to privacy because under those circumstances the reasonable inference is that the victim will seek the help and protection of the police. Content of the communication 16.At this stage of the discussion I do not regard it necessary to consider the content of the conversation because otherwise it would not be possible to define the ambit of reasonable expectation. I do not consider under the unique situation of the present case that if the conversation involves criminal activities, then it will affect the reasonable expectation of privacy by those people whose conversation had been secretly recorded. As Lord Nicholas said in Campbell v. MGN Ltd [2004] 2 AC 457 at para. 21:
Method of recording 17.In this case what ICAC had adopted was not fixed electronic surveillance devices as in the case of Chan Kau Tai, but a recording device hidden on the body of Wong Kwok Leung who had agreed to use this device. In my view, it makes no difference to the issue whether privacy had been infringed by the use of different devices. The principle adopted by the Court is whether people will have a reasonable expectation that their behaviors enjoy privacy rights. Thus it makes no difference by whatever form it may be used to infringe the privacy rights. As La Forest J says in R. v. Duarte (at page 47):
18.Furthermore, even if Wong Kwok Leung himself agreed to this secret recording it does not mean the defendants’ privacy rights had not been infringed. La Forest J at page 47 stated this:
19.Although La Forest J relied on Article 8 of the Canadian Charter of Rights, the principle in his comment is totally appropriate in respect of privacy rights as well. Proportionality test 20.The principle of proportionality is that in considering whether certain acts infringe the law, particularly provisions of the Basic Law, the Court must also consider other relevant factors, such as the content of the secret recording, the purpose of the infringement of privacy (for example, is the Government required to conduct investigation and other methods of investigation are inappropriate) and whether this method of investigation is done in accordance with the law. 21.As a matter of fact Article 30 of the Hong Kong Basic Law has already clearly stated the principle of proportionality. First of all this Article protects the freedom and privacy of communication of Hong Kong residents and ‘no department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents’. The only exception is that ‘the relevant authorities may inspect communication in accordance with legal procedures to meet the need of public security or of investigation into criminal offences’. As the case of Leung Kwok Hung and another v. The Chief Executive of HKSAR CACV 73/2006 and CACV 87/2006 (judgment of the Court of Appeal) and FACV No. 12 and 13 of 2006 (judgment of the Court of Final Appeal) revealed the inspection of communications by the Hong Kong Government was carried out not in accordance with legal procedures prescribed by Article 30. Accordingly in this case, the secret recording by ICAC of the conversations between Wong Kwok Leung and the 3rd, 4thand 5thdefendants infringes Article 30 of Basic Law. For the same reason this act also infringes the privacy protection granted by the Bill of Rights. United Kingdom and European Cases 22.In R. v. Bailey [2001] EWCA Crim 733 the English Court of Appeal was dealing with a similar issue as the present case. In that case two undercover police officers pretended to be the neighbours of a defendant. The officers acquainted themselves with the defendant and won his confidence. Thereafter, they had a conversation with the defendant at his home. The conversation was recorded by recorders hidden on their bodies. The prosecution relied on the recordings as evidence against the defendant. The English Court of Appeal did not regard the act as infringement of privacy rights as conferred in England by the European human rights law. 23.In my view, this is a restricted interpretation. As a matter of fact, after Bailey the British Government in Khan v. United Kingdom [2001] 31 EHRR 45 accepted that the act of installing listening device at the home of a defendant infringed privacy rights. The British Government also adopted the same position in Allan v. United Kingdom [2003] 36 EHRR 12. In that case while the defendant was in prison, his conversations with others in custody in the meeting room and in his cell were recorded. The police arranged an undercover agent pretending to be a cell mate to have conversation with the defendant and elicited information about his criminal activities with a recorder hidden on his body. In my view, the decision in Bailey about whether the conversation was subject to privacy is no longer valid and Hong Kong courts should not rely on this case. The second step: How to deal with unlawfully obtained evidence? 24.It is now necessary to deal with the second step, namely, how to deal with the evidence that had been obtained in breach of privacy rights. This Court in Chan Kau Tai had given the following direction:
Fair trial 25.In carrying out the balancing exercise the court is required to consider whether the defendant has received a fair trial. This involves not only procedural fairness but also the whole of the circumstances must look into which includes the conduct of the investigating authority, for example, whether this conduct is an abuse of the criminal legal system, the treatment received by the defendant and whether the importance of investigating and punishing the crime exceeds certain unconstitutional acts. Right of silence and privilege against self-incrimination 26.In this case, in considering the evidence obtained by ICAC in breach of the privacy rights conferred by the Basic Law, there is a very important matter to be taken into account, namely, when the 3rd, 4th and 5th defendants were arrested by ICAC on suspicion of being involved with prostitution, they chose to remain silent. The right of silence is protected by the common law and the Bill of Rights. It also involves the issue of privilege against self-incrimination protected by Article 11(2) (g) of the Bill of Rights. 27.The Court of Final Appeal in Lee Fuk Hing v. HKSAR [2005] 1 HKLRD 349 has reiterated the importance of the right of silence exercised by a defendant (see also the decision of this Court in HKSAR v. Mui Ting Tat CACC 320/2004). 28.In Allan the European Court of Human Rights at para. 50 made the following comments on the right of silence and privilege against self-incrimination.
Lam Tat Ming 29.The issue before the Court of Final Appeal in Secretary for Justice v. Lam Tat Ming and another [2000] 3 HKCFAR 168 is how the court should deal with a confession that was obtained in breach of the defendant’s right of silence. In that case two defendants were charged with corruption offences. The ICAC after the crime had occurred, commenced undercover operation and successfully obtained confessions from them. At that time they had already indicated they would exercise their right of silence. The Court of Final Appeal gives important directions on this issue. Before I refer to the extract of the direction, one point needs to be emphasized: the Court of Final Appeal’s direction is based on the fact that the confessions were voluntarily made and could be admitted as evidence (see pages 177 to 181). What the Court of Final Appeal needs to consider is how the court should exercise the discretion in rejecting or admitting the evidence when it performs the duty of ensuring that the defendant would receive a fair trial. The direction given by the Court of Final Appeal at page 181 is:
30.The Court of Final Appeal when giving this direction adopted the decision of Supreme Court of Canada in R. v. Broyles [1991] 3 SCR 595. In that case Iacobucci J dealt with the relevant factors in considering whether an undercover agent had elicited the confession of the defendant. He stated at page 610 that in developing a definition of elicitation he did not need to refer to the law of the USA. This shows that the principles in Broyles are applicable to jurisdictions including Hong Kong which adopted the English common law system. He also stated that the undercover agent must be an agent of the state which includes a law enforcement officer and also an informer who has received approval from the law enforcement agency to elicit evidence from the defendant:
31.At page 613 of the judgment Iacobucci J stated that in respect of the first set of factors relating to the nature of the conversation, the matters to be considered are whether the undercover agent allowed the conversation to flow naturally, or did he direct the conversation to those areas where he knew the authority needed information. 32.Broyles was applied in the subsequent Supreme Court of Canada decision of R. v. Liew [1999] 3 SCR 227. It was also applied by the High Court of Australia in R. v. Swaffield [1998] 192 CLR 159 and also applied in the case of Allan. 33.I do not consider that the Court of Final Appeal in Lam Tat Ming only applied the first set of factors in Broyles and rejected the second set of factors. In my view, in defining the Hong Kong law on whether an undercover agent has elicited confession, the Court of Final Appeal definitely did not confine the issue to whether the undercover agent has raised questions equivalent to an interrogation. The underlined part of the extract from Lam Tat Ming clearly shows that the Court of Final Appeal decided that the relationship between the undercover agent and the defendant is one of the factors to be considered in deciding whether the conversation of the parties was in the nature of an interrogation. 34.Furthermore, I do not agree that the undercover agent must be a ‘person in authority’, such as a parent, teacher or priest, who has an influence on the defendant. In my view such a relationship does not need to exist. This argument is similar to the one raised when the court has to consider if a confession was made before a person in authority in deciding whether it was voluntarily made or not. In my view, the ‘person in authority’ factor is only appropriate in considering whether a confession is voluntary or not. Since the direction by the Court of Final Appeal is about how the court should exercise the discretion in respect of confessions which had already been adjudicated to be voluntary, it is therefore not necessary to further consider this point at this stage. In my view, the most fundamental factor is, as Iacobucci J said, whether there is a relationship of trust between the parties? It is sufficient if such a relationship exists, such as the undercover agent and the defendant being friends or acquaintances. Application of the legal principles to this case Exhibits P13 and P16 35.P13 and P16 are related to the first charge. In my view these exhibits should not be accepted as evidence against the 4thand the 5thdefendants. The content of P13 was against the 4thdefendant while that of the P16 was against the 4thand 5thdefendants. The judge summarized the content of P13 as follows:
The judge’s summary of P16 is as follows:
36.The judge was of the view that the conspiracy under the first charge came to an end when the ICAC raided Champagne Court on 8 September 2003 and that even if there was discussion afterwards about reviving the operation of Champagne this was in respect of another conspiracy. But at the same time the judge definitely had relied upon P13 and P16 to convict the 4thand 5thdefendants. At para. 410 of the judgment he stated that:
Causal connection 37.As the offence under the first charge was already completed on 8 September when the 2nd, 3rdand 4thdefendants were arrested, the direction given by the Court of Final Appeal in Lam Tat Ming is applicable to the present case. The ICAC admitted that on 9 September 2003 the evidence against the 3rd and 4thdefendants were rather weak and since it did not have sufficient evidence to prosecute them it would require the assistance of Wong Kwok Leung to gather evidence. ICAC instructed Wong Kwok Leung to raise the issue about the tenancy of Champagne Court when he called the 4thdefendant on 18 September. Wong Kwok Leung himself admitted under cross-examination that he and the 4thdefendant were good friends and he was using the friendship between him and the other defendants to elicit evidence. Although Wong Kwok Leung said that the instruction given to him by ICAC was to listen as much as possible to what the defendants said, from the above one can see that the ICAC did instruct Wong Kwok Leung to raise certain topics with the defendants so that he could elicit the evidence when they discussed these topics. In my view even though the conversation between Wong Kwok Leung and the other defendants were not strictly similar to the method of interrogation, what is certain is that he had directed the conversation to topics which the ICAC required information. Further the defendants talked without reservation in front of Wong Kwok Leung because of their friendship with him. In other words, Wong Kwok Leung was using his close relationship with the other defendants to elicit their evidence. The evidence relied upon by the judge against the defendants was the responses they made to topics raised by Wong Kwok Leung under the instruction of ICAC. The conduct of Wong Kwok Leung and the statements by the defendants have a direct causal connection. This fulfills the definition of eliciting evidence and the prosecution adopted this method to undermine the right of silence of the defendant. The Court must refuse to accept this evidence. Although only a small part of P13 and Pl6 was concerned with the first charge and the content was mainly concerned with the sixth charge, the overall content of these two statements has a close and inseparable link with the first charge. I consider that these exhibits should not be accepted as evidence in support of the first charge. Wong Kwok Leung 38.Wong Kwok Leung agreed to assist ICAC because he did not wish to be prosecuted. He had a triad background. He was a stained witness. The Court has to be particularly careful in considering the evidence of this type of witness. Although, if after careful consideration of the facts of the case, the Court still regards his evidence to be truthful and substantial, it can, of course, rely on his evidence. But in this case the judge when considering the evidence of Wong Kwok Leung made two mistakes. First, as indicated above, he wrongly accepted Exhibits P13 and P16 as evidence in respect of the first charge. Second, he made a mistake when he assessed the evidence of the 3rd defendant. The 3rd defendant chose to give evidence to defend himself. At para. 396 of the judgment the judge said, ‘the 3rd defendant remained silent when he was at the ICAC, this was his right, but what is strange is that he asked Wong Kwok Leung to tell ICAC everything. Although he himself is an investigating officer he adopted the ‘silence is golden’ approach when he faced the ICAC but ‘talked fluently and loudly’ when he was in court’. 39.This Court in HKSAR v. Mui Ting Tat, CACC 320 of 2004 held that:
40.The judge was also the trial judge in Mui Ting Tat (the appeal decision of Mui Ting Tat was only delivered after this case was concluded). In that case when he assessed the evidence of the defendant he also made similar comments. He said that when the defendant was arrested by the police he had ‘no response to make’. In that case this Court was of the view that the judge did not in substance apply the right of silence, it was against the principle set out in Lee Fuk Hing namely, the right of silence exercised by the appellant should not put him at an unfair position at the trial. For the same reason I consider the judge had ignored this important principle in the present case. This directly affected his assessment of the 3rddefendant’s evidence. The 3rd, 4thand 5thdefendants raised the same·defence. The mistake resulted in the judge not being able to make a full assessment of the evidence of Wong Kwok Leung. Under these circumstances the conviction of the 3rd, 4thand 5thdefendants which was based on the judge’s reliance of Wong Kwok Leung’s evidence was unsafe and unsatisfactory. The conviction by the 4thand 5thdefendants of the first charge must be quashed. The sixth charge 41.In respect of the sixth charge faced by the 4thdefendant, Wong Kwok Leung did not give oral evidence. The prosecution relied on the recorded conversation between Wong Kwok Leung and the defendant. The evidence included the recorded conversations in P13 and P16 but the basic evidence came from exhibits P13 and P16. In my view, first of all, the recording of the conversation was in breach of the Basic Law and the Bill of Rights. I have given my reasons earlier. However, this does not mean that the evidence in respect of the sixth charge must be rejected. The period covered by this charge was from 11 to 30 September 2003. This offence had not been completed when Wong Kwok Leung had the conversation with the 4thdefendant. The guideline given by the Court of Final Appeal is not applicable to this evidence. When the 4thdefendant was charged by the ICAC on 8 September the offence did not include perverting the course of justice. I do not accept that the right of silence exercised by the 4thdefendant in respect of the prostitution offence would extend to offences which had not yet occurred. This is similar to an absolute right of silence. This is not the law that is applicable to Hong Kong or should be adopted in Hong Kong. In R. v. Hebert [1990] 2 SCR 151 McLachlin J of the Supreme Court of Canada at page 183 refused to accept the absolute right of silence argument. 42.In my view the recorded conversation relating to the sixth charge can be accepted as evidence. Its content is sufficient to convict the 4thdefendant. Accordingly, I will refuse the 4thdefendant’s application for leave to appeal against the conviction of the sixth charge. The first defendant 43.As to the 1st defendant, the evidence against him in respect of the second charge and the fourth charge came from the recording by the ICAC of the conversation between PW7 Ho Yiu Choa and the 1st defendant between 18 June 2003 and 8 September 2003. For the same reason I have given earlier the recording of the conversation was against the Basic Law and the Bill of Rights. But in my view, the content of the conversation could be admitted as evidence because at that time the 1st defendant had not been arrested. He had never exercised his right of silence. 44.Mr. Hectar Pun, counsel for the 1st defendant, submitted that this Court does not have sufficient material to exercise the discretion and he asked us not to deal with this issue. He further said that if this Court should exercise the discretion then the recorded conversation should be rejected. He relied on the following two cases. In Mohammed (Allie) v. State of Trinidad and Tobago [1992] 2 AC 111 Lord Steyn made the following comment:
In People v. Healy [1990] 2 IR 73, the Supreme Court of Ireland in considering the principles relating to the phrase ‘deliberate and conscious’, held that the motive of the party who made the deliberate and conscious step is irrelevant, in particular, it is immaterial whether he was aware that his action obstructed the constitutional right of the defendant. 45.In my view, this Court has sufficient information to exercise the discretion because irrespective of the motive of ICAC in instructing the undercover agent to secretly record his conversation with the 1st defendant, the most obvious fact is that at that time Hong Kong did not have any legal procedure to regulate the action of secret recording. It is not necessary for me to examine in detail the reasons why the Government did not comply with the requirement of the Basic Law to promulgate the legal procedure because ultimately what the Court has to consider is that during the period of secret recording, Hong Kong did not have any legal procedure in place regulating this type of action. In the circumstances even if the case is to be remitted to the trial judge there will not be too much difference in the material that he and this Court would have to consider. Accordingly I am of the view that this Court can exercise the discretion. 46.Mohammed (Allie) and Healey are highly persuasive authorities but in my view one should consider the individual facts of the case in deciding whether to accept evidence which has been obtained in breach of the fundamental right of the citizens. In these two cases, the fundamental right that the governments had infringed was a deliberate refusal to let the defendant meet his lawyer. This is an extremely serious breach. In those circumstances, the refusal by the courts to accept the evidence was correct. But this does not apply to the present case, particularly when the 1st defendant was still being investigated, had not indicated that he would exercise his right of silence and the offence had not yet been completed. In the circumstances the Court should accept the recorded conversations. This recorded conversation was obviously sufficient to convict the 1st defendant. Therefore I would refuse the application by the 1st defendant. Hon Yeung JA: Introduction 47.There are 5 defendants in this case. Apart from the 3 applicants Lam Hon Kwok, Popy (D1), Kam Kwok Cheung (D4) and Jim Fai Keung (D5); the other two defendants are Leung Kwong Yin (D2) and Cho Ming Sum (D3). D1, D3, D4 and D5 were all serving police officers before their convictions, D2 is an ex-customs officer. 48.D1 faced 4 charges, including the 2nd charge of conspiracy to live on the earnings of prostitutes, the 3rd charge of inciting others to conspire to live on the earnings of prostitutes, the 4th charge of inciting others to conspire to rob, and the 5th charge of possession of prohibited weapons. D1 pleaded guilty to the 5th charge of possession of prohibited weapons, but denied all other charges. 49.D2 faced the 2nd charge and the 4th charge, he denied both charges. 50.D4, D5 and D3 all faced the 1st charge of conspiracy to live on the earnings of prostitutes, D4 and D3 also faced the 6th charge of conspiracy to pervert the course of justice. They all denied the charges. 51.The case was tried in the District Court before Deputy Judge Lam Wai-kuen, Josiah (“the trial judge”). The trial commenced in mid-July 2004, and lasted until December 2004. 52.It took the trial judge 2 days to deliver the judgment, from 6 December to 7 December 2004. Dl was convicted on the 2nd and 4th charges, but acquitted on the 3rd charge. In respect of the 2nd and 4th charges, Dl was sentenced to a total of 37 months’ imprisonment. In respect of the 5th charge of possession of prohibited weapons, Dl was fined 2,000 dollars. 53.D2 was convicted on the 2nd charge and sentenced to 8 months’ imprisonment, but he was acquitted on the 4th charge. 54.D4 was convicted on the 1st and 6th charges, D5 was convicted on the 1st charge. They were sentenced to imprisonment for 34 months and 11 months respectively. 55.D3 jumped bail and did not show up when the trial judge was delivering the judgment, but the trial judge still convicted him on both the 1st and 6th charges in his absence, and sentenced him to a total of 34 months’ imprisonment. 56.Dl and D5 were aggrieved about the convictions, and asked this court for leave to appeal against conviction. D4 was aggrieved about both the conviction and the sentence, and had applied to this court for leave to appeal against conviction and/or sentence. However, at the hearing, D4 indicated that he would abandon his appeal against sentence, and that application was dismissed accordingly. This court now only has to deal with his application for leave to appeal against conviction. 57.Dl, D4 and D5 are represented by their counsel Mr Hectar Pun, Mr Thomas Iu and Mr Newman Wong respectively. The prosecution’s allegations and evidence 58.In the beginning of 2003, whilst officers of the Independent Commission Against Corruption (“ICAC”) were making enquiries into a suspected offering/receiving advantages case, they suspected that there were police officers involved in the sex trade by operating “one-woman brothels”. Subsequently, the ICAC arrested a key member Mr Ho Yiu Choa, an ex-police officer who served in the police force between 1976 and 1999. 59.Ho Yiu Choa agreed to supply information and assist in the ICAC’s enquiries, and if necessary, to testify against the defendants in court; in exchange for immunity from prosecution for his involvement in the sex trade and the offence of offering advantages. 60.Between June and September 2003, Ho Yiu Choa and Dl met on many occasions in restaurants and other eateries, they also talked over the phone. Ho Yiu Choa said during their conversations, D1 revealed that he was a shareholder in a “one-woman brothel” business. There were many regular customers and the services of prostitutes were required. D1 incited Ho Yiu Choa and his friend “Xiaoxue” to arrange for prostitutes to come to Hong Kong to work in the “one-woman brothels” in Tsim Sha Tsui. They have had detailed discussions on the recruitment of prostitutes and the distribution of the proceeds from prostitution on a number of occasions. In their subsequent conversations, D1 expressed his intention of “earning quick money”, and incited Ho Yiu Choa to rob the banks or petrol stations. 61.D1 instructed Ho Yiu Choa to reconnoitre the banks and work at the petrol stations, so as to collect information for the purpose of the robbery. D1 even told Ho Yiu Choa that firearms could be bought from Shen Zhen, and when the robbery took place, he would wear a helmet and ride a motorcycle to render assistance. 62.Through the ICAC’s arrangements, Ho Yin Choa taped some of the conversations he had with D1. The audio tape records have become exhibits P1 to P11. 63.The aforesaid allegations constitute the 3rd and 4th charges against D1, namely, conspiracy to live on the earning of prostitutes and inciting others to conspire to rob. Evidence supporting the two charges mainly comes from Ho Yin Choa and exhibits P1 to P11. 64.The vice establishments involved in this case are “one-woman brothels” situated at Room 1-5, 8/F, Block D, Champagne Court, Tsim Sha Tsui (“the Champagne establishments”). 65.On 8 September 2003, ICAC officers searched the Champagne establishments. They arrested several prostitutes and 2 persons who managed the establishments, they are Tse Chun Wai (“Chu Tsai”) and Lee Yiu Ming (“Se Tsai”). The defendants were also arrested by the ICAC on the same day or early the next morning at different locations. 66.The Champagne establishments were operated by another key prosecution witness Wong Kwok Leung. Wong Kwok Leung was arrested on 8 September 2003. After the arrest, he made no confessions. However, he later expressed to the ICAC his intention to turn prosecution witness, in exchange for immunity from prosecution. 67.Consequently, Wong Kwok Leung was granted immunity from prosecution by the Department of Justice. In return, he agreed to supply information, to assist in the ICAC’s enquiries and assist in collecting evidence, and if necessary, he would testify against the defendants in court. 68.In the course of giving evidence, Wong Kwok Leung gave a detailed account about the operation of his prostitution business and how he came to know the 5 defendants. Wong Kwok Leung said he initially agreed to operate the “one-woman brothel” sex business in Wing Lee Building together with D4 and his friend. Each of them contributed 20,000 dollars towards the capital. However, D4’s friend withdrew from the partnership soon afterwards. Later, Wong Kwok Leung came to know D5 through D4, and then D3 through the introduction of D5. 69.The sex business in Wing Lee Building ceased after only about 2 months. In June 2003, after the vice establishments in Wing Lee Building were closed down, Wong Kwok Leung moved his “one-woman brothel” sex business to the Champagne establishments. 70.Wong Kwok Leung said that D3, D4 and D5 were all involved in the operation of the Champagne establishments operated by him and received their shares of the proceeds. They contributed towards the capital, directly or indirectly arranged for or introduced prostitutes to come to work in Hong Kong, and received commission for introducing prostitutes. Wong Kwok Leung said he came to know D1 around May or June 2003 through D4. Subsequently, D1 introduced “chicken heads” to him, so that prostitutes could be supplied to him for working in Hong Kong. Some time later, Dl indicated that he was in dire financial situation, and indicated his intention to directly introduce prostitutes to work at the Champagne establishments, so as to earn commission. Eventually, D1 introduced a prostitute called “Yuen Yuen” to work there, and received a total of 5,000 dollars in commission. D1 also introduced D2 to Wong Kwok Leung, and indicated that D2 would supply prostitutes to work at the Champagne establishments to earn commission. 71.Wong Kwok Leung was granted bail on 10 September 2003, after he had agreed to assist the ICAC in its investigation and assist in collecting evidence. He remained in contact with D1, D4 and D5, and the ICAC was aware of that. Wong Kwok Leung said they had talked about how to deal with the ICAC investigation and the Champagne establishments. 72.Wong Kwok Leung also pointed out that D3 and D4 had asked him, “Chu Tsai” and “Se Tsai” not to spill the beans to the ICAC. They also discussed about some relevant arrangements, including the hiring of lawyers, the purpose was to prevent the arrested prostitutes from co-operating with the ICAC. D4 suspected that “Chu Tsai” was a traitor, so he asked Wong Kwok Leung to exert pressure on the big brother of “Chu Tsai” in the triad society to exercise control on “Chu Tsai”, and stopped him from giving evidence against them. When Wong Kwok Leung asked D4 how to deal with the business of the Champagne establishments, D4 said that they could continue to derive income from the business at the Champagne establishments by getting some other people to operate it, but he himself could not show his face again. 73.Most of the conversations Wong Kwok Leung had with Dl, D3, D4 and D5 were taped under the arrangements of the ICAC, including their conversations in bars and restaurants and their telephone conversations. The relevant audio tape records have been produced as P12 to P16. 74.The aforesaid allegations constitute the 1st charge against D4, D3 and D5 as well as the 2nd charge against Dl and D2, namely, conspiracy to live on the earning of prostitutes. They also constitute the 6th charge against D4, namely, conspiracy to pervert the course of justice. 75.Apart from Ho Yiu Choa and Wong Kwok Leung, the prosecution also called “Chu Tsai”, “Se Tsai” and a number of ICAC officers to give evidence. Audio tape records of conversations between Ho Yiu Choa, Wong Kwok Leung and various defendants were also produced as evidence. The defence’s stance and evidence 76.During the trial, the defence objected to the production of the audio tape records as evidence, pointing out that the investigative tactics of the ICAC were unfair to the defendants, as they infringed their right of silence. The court should therefore exercise its discretion to exclude the audio tape records. 77.The defence also pointed out that the first audio tape record of the conversation between Ho Yiu Choa and D1 was incomplete, a sign that the ICAC was hiding the truth, which had called into question the integrity of the ICAC officers. Therefore, all the tape recording of conversations in this case should be excluded. 78.D3, D4 and D5 said they only participated in Wong Kwok Leung’s daily rate and hourly rate guesthouse business, not the “one-woman brothel” sex business. When they discovered that there was somethingwrong with Wong Kwok Leung’s guesthouse business soon afterwards, they immediately withdrew from the business and got their investment back. 79.The defendants said Ho Yiu Choa and Wong Kwok Leung told lies and made false allegations against them in order to save their own skin. They also pointed out that Ho Yiu Choa was not a reliable witness. Therefore, the alleged conversations between the defendants and him (which were not recorded) should not be admitted as evidence. 80.D1, D4 and D5 did not give evidence in their own defence. They only called an expert to say that the aforementioned first audio tape record was not properly made, and there were no other defence witnesses. However, they did offer their explanations with regard to the wrongful acts as alleged by the prosecution through their counsel during cross-examination. They denied having arranged for prostitutes to come to work in Hong Kong. They also denied that they shared in the proceeds from the Champagne establishments. They said that both Ho Yiu Choa and Wong Kwok Leung were unreliable witnesses. D1 also said that when he talked about the topic of robbery with Ho Yiu Choa, he was only waffling about it. In fact, the inappropriate topic was brought up by Ho Yiu Choa, D1 just waffled in response. D2’s counsel also pointed out that Ho Yiu Choa bore a grudge against D1, because D1 had told on his younger brother who was working in the police force. He thus made such allegations to take revenge on D1. 81.During the trial, D3 was the only defendant who gave evidence in his self-defence. He reiterated the defence raised by D4, D5 and himself, namely, they were under the belief that Wong Kwok Leung was operating the daily rate or hourly rate guesthouse business, instead of the vice establishment business. D3 said he consumed a lot of alcohol during the meeting with Wong Kwok Leung in the bar, so he could not remember all the conversations. He did say words to the effect that he was concerned about “Chu Tsai” and “Se Tsai”, but his only purpose was to assist Wong Kwok Leung. It did not mean that he had participated in the operation of the vice establishments, still less conspired to pervert the course of justice. The findings of the trial judge 82.The trial judge noted that apart from the first audio tape record of the conversations between Ho Yiu Choa and D1, all the other tape recordings of conversations were complete. The defence also agreed that they were accurately and properly recorded. The trial judge concluded that what arose from the evidence of Ho Yiu Choa and Wong Kwok Leung and the tape recordings of the conversations was the question of reliability, not the question of admissibility. 83.The trial judge ruled that all the tape recordings should be admitted as evidence, because during the conversations, Ho Yiu Choa and Wong Kwok Leung did not breach the rules by cross-examining the defendants. Therefore the defendant’s right of silence was not infringed. 84.The trial judge rejected the argument that “conversations that were not recorded cannot be produced as evidence”. He also dismissed the suggestion that tape recordings which were unintelligible should not be produced. 85.The trial judge rejected D3's evidence. He noted that D3 was not an honest witness, one of the reasons is that he did not disclose his defence whilst he was under investigation by the ICAC. The trial judge made the following remarks on D3’s evidence:
86.The trial judge found that Ho Yiu Choa was not an honest witness, so he could not convict D1 by solely relying on Ho’s evidence. As evidence of the 3rd charge against Dl all came from Ho Yiu Choa, the trial judge had to find D1 not guilty on that charge. 87.The trial judge pointed out that “Chu Tsai” had a poor memory, and the evidence of “Se Tsai” had no value, so their evidence should be excluded. On the other hand, he found that Wong Kwok Leung, the ICAC officers and the expert called by the prosecution were all honest and reliable witnesses, and the relevant tape recordings of the conversations were accurate, reliable and could be relied upon. 88.On the basis of Wong Kwok Leung's evidence and the relevant tape recordings of conversations, the trial judge found that D3, D4 and D5 had all participated in the sex business of the Champagne establishments, and had shared in the proceeds from the Champagne establishments, so he found them guilty of the 1st charge. 89.The trial judge also believed that Dl and D2 had agreed with Wong Kwok Leung to introduce prostitutes to come to Hong Kong for prostitution, and drew commission from the earnings of the prostitutes, so he found D1 and D2 guilty of the 2nd charge. 90.According to the relevant tape recordings, the trial judge concluded that D1 did incite Ho Yiu Choa to commit robbery, it was not mere “bluffing”. Furthermore, D3 and D4 did make the arrangements, such as sending a lawyer to visit the arrested prostitutes, and asking the big brother of “Chu Tsai” in the triad society to exert pressure on “Chu Tsai”, so that they did not have the opportunities or would not give statements to the ICAC or assist the ICAC in its investigation, with the ultimate purpose of protecting themselves. So he found D1 guilty of the 4thcharge of inciting others to conspire to rob and found D3 and D4 guilty of the 6thcharge of conspiracy to pervert the course of justice. The applicants’ grounds of appeal 91.Apart from dealing with their own specific grounds of appeal, counsel for the applicants also relied on each other’s grounds. Most of the applicants’ grounds of appeal are identical, and can be dealt with together. 92.Grounds of appeal applicable to all the applicants can be summarised as follows:
93.Counsel Mr Thomas Iu stressed that the trial judge had categorically stated that he would not take into account the relevant tape recordings when he considered the 1st charge. Mr Iu emphasized that Wong Kwok Leung’s evidence could not be believed at all, as there were too many discrepancies. So Wong Kwok Leung’s evidence alone was insufficient to support the 1st charge. Mr Iu also submitted that the trial judge erred in his manner of dealing with D3’s credibility. He noted that D3 only gave evidence and offered his explanations at the trial, but elected to exercise his right of silence when he was under investigation. It is on that basis that the trial judge rejected D3’s evidence, rather than on the basis of his demeanours whilst giving evidence, thus in breach of the principle laid down in R v Chan Kung-ling [1991] 2 HKC 158. 94.Mr Iu stressed that in so far as D3’s evidence was likely to be true, it would cast doubt on the 1st charge which D4 faced, as D3 and D4 ran the same defence. Moreover, D4’s counsel did not cross-examine D3 at the trial, indicating that D4 had adopted D3’s evidence. 95.D5’s counsel Mr Newman Wong also submitted that the trial judge should not have attached too much importance to the factors set up by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168, and neglected the fact that D5 had categorically elected to exercise his right of silence after his arrest. Mr Wong submitted that by using Wong Kwok Leung as an undercover agent to extract confessions from D5, the ICAC did not only infringe on D5’s right of silence, it also brought the administration of justice into disrepute. According to the principle laid down by the Court of Appeal in R v Lee Yi Choi [1985] 1 HKC 578, those confessions should be excluded. Discussion 96.If the court accepted that Wong Kwok Leung's evidence and the relevant audio tape recordings were true and accurate, there would obviously be sufficient evidence to support the convictions of the applicants. Counsel for the three applicants did not dispute that. 97.Article 30 of the Basic Law of Hong Kong expressly states that the freedom and privacy of communication of Hong Kong residents shall be protected by law. Article 39 also stipulates that the provisions of the International Covenant on Civil and Political Right as applied to Hong Kong shall remain in force. 98.Article 14 of the Hong Kong Bill of Rights Ordinance, which is identical to Article 17 of the International Covenant on Civil and Political Rights, also stipulates that:
99.The freedom and privacy of communication conferred on the Hong Kong residents by law are extensive, clear and unambiguous. In Leung Kwok Hung v Chief Executive of HKSAR HCAL No.87 of 2005, CACV 73/2006 and CACV 87/2006, HKSAR v Chan Kau Tai CACC 26/2004, the court has given clear ruling on this subject: unless it is for the purpose of meeting the needs of public security or of investigation into criminal offences and in accordance with legal procedures, otherwise, any acts which intrude on the freedom and privacy of communication must be regarded as unconstitutional (see Leung Kwok Hung mentioned above). 100.Although the Hong Kong Bill of Rights Ordinance and the Basic Law have been implemented in Hong Kong from 1991 and 1997 respectively, the legislature of Hong Kong has yet to formulate the relevant legal procedures to enable the law enforcement agencies to intrude on the freedom and privacy of communication of the citizens legitimately on the basis of public security and investigation into criminal offences. And the report of the Law Reform Commission of Hong Kong on “Privacy: The Regulation of Covert Surveillance” was only issued in March 2006. 101.This case does not involve the direct or indirect audio surveillance of the private communication of the applicants or other people by the ICAC. The ICAC did not install any video or audio surveillance devices in the residences or offices of the applicants, to make covert recording of the acts or conversations of the applicants or other innocent parties. Nor did the ICAC covertly intercept the conversations of the applicants or other innocent parties by means of “phone-tapping”. What the ICAC did was to audio tape the conversations of the applicants through Wong Kwok Leung and Ho Yiu Choa, when the applicants were relating to them about criminal activities. The purpose is to assist the ICAC in working investigations and bringing prosecutions. 102.Senior Government Counsel Mr Simon Tam submitted on behalf of the respondent that the ICAC's action did not infringe on the applicants' right to freedom and privacy of communication. Mr Tam stressed that Wong Kwok Leung and Ho Yiu Choa also had freedom of speech, and had the freedom to receive and disseminate information. Mr Tam also emphasized that the applicants disclosed their completed or ongoing criminal activities to Wong Kwok Leung and Ho Yiu Choa voluntarily, and Wong and Ho were entitled to repeat the applicants’ confessions to others, and to tape the conversations as evidence. 103.Mr Tam referred to a number of English cases to support his stance. In R v Bailey & others [2001] EWCA 733, the defendants mistakenly believed that the undercover police officers were accomplices, and would keep the secrets for them. So they told the police officers about their criminal enterprise in their home. Not only did the undercover police officers make a record of their conversations in their note-books, they also taped the conversations with a concealed tape recorder. The English Court of Appeal ruled that the production of the records as evidence by the undercover police officers did not infringe on the privacy of the defendants, rather, it was a just and reasonable act. What the undercover police officers did made it possible for a reliable and accurate record to be kept in respect of the conversations. The Court of Appeal specifically pointed out that witnesses were entitled to use every means to refresh their memory of the relevant events, and those means should not be confined to written records. If modern technologies could provide better means to refresh the memory of the witnesses, the court should not resist those technologies. On the other hand, if the undercover police officers made the records by other means, which resulted in the records being incomplete and inaccurate, they would be criticized. Therefore, there was nothing wrong for the undercover police officers to record the relevant conversations by means of modern technologies and produced them as evidence. 104.The English Court of Appeal also specifically stressed that the case did not involve covert interception of private communications, nor did it involve the installation of surveillance recording devices in the defendants’ house. It was just a case of undercover police officers recording their conversations with the defendants, as one of the means of detecting crimes. 105.Mr Tam also relied on Campbell v MGN Ltd [2004] 2 AC 457, which stated that to decide whether a person's privacy had been infringed upon, the court must first decide whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. Mr Tam stressed that when someone was talking about criminal offences, it involved not only privacy, but also the issue of public interest. He stressed that there was difference in the extent of the protection provided by law to different types of private information, because when considering the question of privacy, the court must also have regard to freedom of speech and public interest. Mr Tam observed that the central issue was whether a democratic and free society should give legal protection to certain private information, so that the information would not be divulged when it was not to the public advantage. 106.Mr Tam submitted that the applicants could not have any reasonable expectation that Wong Kwok Leung and Ho Yiu Choa would not divulge their conversations which constituted offences, because the contents of the conversations were not private information protected by law, and the taped conversations had nothing whatsoever to do with the privacy of the applicants. 107.Counsel Mr Hectar Pun agreed that to decide whether a person's privacy had been infringed upon, consideration must be given to whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. Mr Pun referred to Chan Kau Tai, pointing out that the scope of privacy was very wide, which included the right to be free fromthe attention of other people in the society or the public, and the right not to be free from disturbance or intrusion. 108.Mr Pun also referred to a number of decisions of the Supreme Court of Canada, including R v Duarte [1990] SCR 30 and R v Wong (1990) 60 CCC (3d) 460, to support his own arguments. 109.Mr Pun pointed out that the logical deduction in Bailey as cited by Mr Tam had been rejected in Duarte. And in Wong, it was further stated that everyone could have the reasonable expectation that his conversations with others and his acts would not be subjected to the covert surveillance and recording by the undercover agents of the state. Mr Pun stressed that a reasonable expectation would not become unreasonable because the contents of the conversations involved criminal activities. The important thing in a reasonable expectation was the expectation, it was not an assessment of risks. 110.In Duarte, La Forest J of the Supreme Court of Canada noted that as a matter of logic, there was no distinction between the electronic surveillance carried out by a participant in the conversation and one that was carried out by a third party, and an individual's reasonable expectation of privacy would not differ according to the places where the recording devices were kept. La Forest J stated that so long as the speaker had a reasonable expectation that his words would only be received by the interlocutor, all unauthorised covert electronic recording of the conversation would be an infringement on the reasonable expectation of confidentiality, even when it was carried out by the interlocutor. La Forest J went further to say that the speaker must bear the risk that the words would be divulged by the interlocutor, but that could not be compared to the risk of having a permanent electronic recording made of the words. 111.Mr Pun also relied on Allen v UK (2002) Application No. 48539/99; Canadian cases mentioned in the judgment of the European Human Rights Court: R v Hebert [1990] 2 SCR 151, R v Broyles [1991] 3 SCR 595, R v Liew [1999] 3 SCR 227; and an Australian case R v Swaffield and Pavic [1998] HC of A1 etc. 112.In the aforesaid cases, the main issue considered by the court is the safeguard of the right of silence of the suspects. The courts ruled that if confessions were extracted by the law enforcement agencies through trickery after the normal investigation process had failed to yield any results, the confessions were made involuntarily and should be excluded, otherwise, there would be a miscarriage of justice. 113.Different societies deal with the infringement of the right of privacy differently, as their history, customs, culture and legal provisions are not the same. The stance adopted by the English Court of Appeal in Bailey regarding covert recording by a participant in the conversation is obviously different from the stance adopted by the Supreme Court of Canada in Duarte. This divergence is not something that can be solved by logical deduction. 114.However, I am mindful of the fact that there are well-established legal procedures in Canada regulating the “audio surveillance” activities of the law enforcement agencies, section 178.11 of Part IV.I of the Criminal Code of Canada even criminalizes unauthorised covert recording activities. The section stipulates that:
115.The Canadian police normally cannot carry out electronic surveillance without the authorisation from a High Court judge. And even when authorisation is granted, the Canadian police must strictly abide by the conditions set out therein when they carry out the surveillance. 116.Under the circumstances mentioned above, it is understandable that the Supreme Court of Canada ruled that the speaker had a reasonable expectation that the words would only be received by the interlocutor instead of being recorded by concealed electronic devices. 117.The recording of conversations by concealed devices is not criminalized in Hong Kong. In fact, even though the Bill of Rights and the Basic Law have been in force in Hong Kong for a number of years, the question whether it is unconstitutional for the law enforcement agencies to record criminal activities covertly by various means has aroused the concern of the society only recently. 118.Maybe it is easy to be wise after the event, some of the covert recording activities of the law enforcement agencies are plainly unconstitutional. Chan Kau Tai is a case in point. The ICAC installed recording devices in the defendant’s office to record his activities without his knowledge. It is obviously an unconstitutional and improper act of covert surveillance. However, it is controversial whether it is unconstitutional to conceal the device on the person of the “undercover agent” and secretly record the defendant’s conversations with the agent. This issue has aroused the concern of various sectors, including the legal sector only after 2005. 119.In Secretary for Justice v Lam Tat Ming & Another (2005) HKCFAR 168, the court also dealt with the covert recording by law enforcement agencies through undercover agents of the defendant’s words which constituted criminal offences. Among the undercover agents in that case, some were the defendant's accomplices, there was also an ICAC investigator who posed as a member of the triad society. They secretly tape recorded the defendant’s words which constituted criminal offences, and produced them in court as evidence. Since both the prosecution and the defence did not rely on any provisions of the Basic Law and Bill of Rights, the Court of Final Appeal did not touch on the issue of whether the aforesaid covert recording activity was unconstitutional. The Court of Final Appeal followed the established Common Law principles and ruled that the court should not reject the spontaneous confessions of the defendant merely on the ground that the covert surveillance evidence was obtained through undercover agents. The Court of Final Appeal also found that the covert recording activity by undercover agents might have been reasonable and necessary. 120.During the trial, both the prosecution and the defence did not touch on the issue of whether it was unconstitutional for Wong Kwok Leung and Ho Yiu Choa to record the defendant’s words secretly. Nor did the trial judge deal with that issue. In my judgment, the above issue is relevant to the questions of which types of privacy are protected by law which the citizens can have a reasonable expectation of, and whether the ICAC’s covert recording activities would bring the administration of justice into disrepute. 121.If anyone makes any statements voluntarily to another person, that person can always repeat the statements in question without restrictions when he gives evidence in court. Of course, when a criminal makes confessions or says some words which constitute offences to his accomplices or persons he considers to be trustworthy, he will certainly have a subjective expectation that the other party will keep the secrets for him, and not to divulge his confessions or words which constitute offences to other people. However, his subjective expectation cannot be equated with reasonable expectation. The confessions he makes also may not fall within the privacy protected by law. 122.When the court considers whether certain conversations fall within the privacy protected by law, it should also consider the contents of the conversations and the places where they took place, to decide whether the speaker has a reasonable expectation that the other party will keep the information confidential. Furthermore, the court should consider the different interests in society and strike a balance between the interest of the society at large and the interest of individuals. 123.The contents of the taped conversations that Wong Kwok Leung and Ho Yiu Choa had with the applicants have nothing to do with personal privacy. The applicants disclosed their criminal activities and said some words which constituted offences to Wong Kwok Leung and Ho Yiu Choa under the belief that they were accomplices. They mistakenly believed that Wong Kwok Leung and Ho Yiu Choa were like-minded persons, so there was no need to hide anything from them. The applicants disclosed voluntarily to Ho Yiu Choa and Wong Kwok Leung something that they probably would not disclose to others. I share Mr. Tam’s view. I am of the view that the conversations the applicants had with Wong Kwok Leung and Ho Yiu Choa do not fall within the personal privacy that the law intends to protect. The covert recording of the conversations by Wong Kwok Leung and Ho Yiu Choa under the arrangements of the ICAC does not constitute an unconstitutional act that infringes on the freedom and privacy of communications of the applicants. Otherwise, when the victim of a blackmail case secretly records the threat made to him by the blackmailer, it will also constitute an infringement of privacy. I do not think it is what a free, democratic and open society would like to see. 124.I also agree with the analysis made by the English Court of Appeal in Bailey. If a defendant makes an oral confession to someone voluntarily, that person can always repeat the defendant’s words in court as evidence. Furthermore, if he has made a written record of the words said by the defendant, he can refer to the record if necessary to refresh his memory of the relevant events. There is nothing wrong, as a matter of logic, to allow a witness to make more accurate and reliable records of conversations by means of modern technological devices. On the other hand, it may be regarded as improper and unfair to the accused for an “undercover agent” who has been in touch with the accused for a long time to rely solely on his memory instead of other more reliable means when repeating the confession of the accused in court. In fact, this practice has come under criticism before. 125.I understand and accept that the constitutional rights and protection conferred on the citizens are absolute. I am also aware that the report issued by the Law Reform Commission of Hong Kong in March 2006 entitled “Privacy: The Reputation of Covert Surveillance” indicates that the covert recording of the words of suspected criminals by “undercover agents” may be subject to regulation. Of course, the final version of the law remains to be seen. The statutory provisions that will be enacted may have an impact on whether there is “a reasonable expectation of privacy of the information disclosed”. When that happens, the court may well have to look at some of the covert surveillance activities again to decide if they breach constitutional rights. 126.However, regarding the covert recording with devices by the ICAC of the applicants' words which constitute offences through Wong Kwok Leung and Ho Yiu Choa in 2003, I do not find that it constitutes an unconstitutional act which infringes on the freedom and privacy of communication of individuals. In handling serious crimes, the law enforcement agencies are entitled to adopt all reasonable means, for the purpose of detection of crimes and bringing criminals to justice. 127.The applicants’ ground of appeal that the ICAC has acted unconstitutionally fails. 128.Even if the ICAC's extraction of the applicants’ confessions through Ho Yiu Choa and Wong Kwok Leung by covert means breaches Article 30 of the Basic Law and Article 17 of the International Covenant on Civil and Political Rights, it does not mean that the court must reject those confessions. Under the aforesaid circumstances, the court must strike a balance between the protection of constitutional rights and the detection of crimes, to ensure that the applicants are given a fair trial. So long as the applicants can be ensured a fair trial, even evidence obtained in breach of constitutional rights should not be excluded. 129.In HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, Hon Ma CJHC makes the following comments in page 443”: “In our view, the questions posed in the previous paragraph fall to be answered in the following way. First, account must of course be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR. Secondly, any breaches as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach: the court still retains a discretion to admit or exclude the evidence. Thirdly, 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.” 130.Hon Ma CJMC set out the important factors that the court must take into account in exercising its discretion, including the importance of the protection of constitutional rights. Whether evidence obtained unconstitutionally should be produced in court as evidence must depend on the laws of the particular states or areas. One of the fundamental themes of all constitutional documents, including the Basic Law, is to take into account the different interests in society, and to strike a balance between the competing interests. Derogations from constitutional rights are sometimes permitted if they can be justified as being necessary, national and proportionate. Criminal cases involve two competing interests, which 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 objective of the exercise of discretion to strike a balance between the aforesaid competing interests is to ensure that a fair trial of the defendant takes place. Section 78(1) of the Police and Criminal Evidence Act 1984 of England and Article 6 of the European Convention on Human Rights reflect the common law position with regards to the right to a fair trial. In dealing with the fairness of a trial, the court must take a broad view of the overall circumstances. Apart from looking at the procedural fairness in the actual trial, the court is also entitled to look at the overall behaviour of the investigating authority and the treatment of the accused. The protection of constitutional rights may be outweighed by the public interest in ensuring that crimes are detected and criminals are punished. The reason is that some constitutional rights are more important than others, when the gravity of a breach is small but the crime involved is a serious one, the public interest will lean more favourably towards the detection of crimes and the punishment of criminals, and the evidence obtained in breach of constitutional rights should be produced as evidence. 131.In Chan Kau Tai, Hon Ma CJHC emphasizes the importance of fair trial. He refers to a number of local and foreign cases, including R v Sang [1980] AC 402, R v Loosely (AG's Reference No.3 of 2000) [2001] 1 WLR 2060, HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, R v Smurthwaite [1994] 1 AER 898 etc, all reflect the same position. 132.In R v Khan [1997] AC 558, the British police secretly recorded a conversation by means of an electronic surveillance device concerning the importation of heroin, which showed that the suspect was guilty. The English House of Lords ruled that judging from the means by which the above evidence was obtained, it appeared that there might well be breaches of Article 8 of the European Convention on Human Rights or the laws of other countries. Therefore, in dealing with the admissibility of the aforesaid evidence, the court had to take into account the same factors that the court had to consider in exercising the discretion under section 78 of the Police and Criminal Evidence Act. However, regarding the aforesaid means, the important thing is whether the procedures of the trial are fair. The House of Lords agreed with the decision of the trial judge that even if the evidence was obtained by means that were in breach of the provisions of Article 8 of the European Convention on Human Rights that protected privacy, the court was not obliged to exclude the evidence. An appeal was lodged with the European Court of Human Rights, which held that although the covert recording breached Article 8, the adoption of the evidence of the secretly recorded conversation during the trial did not violate the right to a fair trial protected by Article 6. The European Court of Human Rights reiterated that the crux of the matter was whether the overall procedures of the trial were fair. [See Khan v United Kingdom (2001) 31 EHRR 1016]. 133.Counsel Mr. Pun stressed that before deciding whether the tape recordings should be produced, the trial judge failed to consider whether the evidence was obtained in breach of the relevant provisions of the Basic Law and the International Covenant on Civil and Political Rights. Thus the decision of the trial judge to admit the evidence was improper and should be overturned. Mr Pun asserted that this court should not take over the function of the trial judge by exercising the discretion to decide whether to admit the evidence, because this court might not have sufficient evidence to exercise the discretion properly. He also pointed out that there was no evidence to show that the covert recording was done with proper authorisation. He emphasized that the ICAC might have deliberately done something which would be such an affront to the public conscience or the integrity of the criminal justice system is so compromised that the court must step in to put a stop to it. 134.I am mindful of the fact that during the trial, the defence did not ask the court to exclude the evidence on the basis that the evidence was obtained by the ICAC through covert recording and therefore breached the relevant provisions of the Basic Law and the International Covenant on Civil and Political Rights. They only objected to the production of the evidence on the ground that the evidence was obtained in a way that infringed the applicants’ right of silence. 135.Even if what Mr Pun said is true, that this court did not have sufficient information to exercise its discretion, it is not the respondent's fault. This situation arose because the defence had failed to set out all their reasons of objection. In the circumstances of this case, I am of the view that whether the covert recording of the ICAC was done with proper authorisation is not conclusive. 136.Among the three counsel appearing for the applicants in this court, only Mr Thomas Iu was present in the trial. Mr Iu stated that during the trial, the ICAC maintained that the covert recording was an “operational decision”, and there were no documents which could disclose the arrangements for the recording. Mr Iu’s stance was that all the relevant information had been shown to the court, and the court had sufficient information to decide whether admitting the tape recordings as evidence would prejudice the right to a fair trial which the applicants were entitled to. Mr Iu invited this court to decide whether the tape recordings should be admitted as evidence on the basis of the information already produced by both sides. We think Mr Iu’s suggestion is reasonable and fair, and should be adopted. 137.Mr Iu emphasized that before the ICAC made arrangements for the secret recording of the conversation between Wong Kwok Leung and D4, D4 had already been arrested. D1 also made it clear that he would exercise his right of silence. So his situation was different from the defendant in Lam Tat Ming. In Lam Tat Ming, the covert recording operation of the ICAC took place before the defendant was arrested. 138.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 evidence was obtained without the knowledge of the defendants, and the defendants were not exercising their right of silence. 139.I also find that the case referred to by Mr Newman Wong R v Lee Yi Choi [1985] 1 HKC 578 has little relevance to this case. The defendant in that case denied the allegations made by the prosecution. The police officer in charge of the case sent an undercover police officer who posed as an arrested robber to the cell where the defendant was remanded, where he talked to the defendant for about an hour. The police officer claimed that during that time the defendant made a confession that he had committed murder. The officer stayed in the cell for one night, and thereafter made a record of his conversation with the defendant by relying on his memory. 140.In Lee Yi Choi, the trial judge held that he had no discretion not to accept the defendant’s confession as evidence. The Court of Appeal disagreed with the trial judge. The Court of Appeal found that what the police did was against the principal of fair trial, and that it had tainted the execution of the judicial process. The Court of Appeal highlighted the fact that the undercover officer had had a conversation with the defendant for about an hour, but only made a record of the confession made by the defendant just from memory the following day, which was not used as a formal witness statement in the case until later. The accuracy of the record concerned is doubtful, and the principle of fair trial has not been observed. 141.The facts of Lee Yi Choi are special and totally different from those of the present case. In the present case, there was no police officer pretending to be a prisoner going into a cell to mix with the defendant in order to extract a confession from him; it involved no ‘undercover agent’ making a record of a long conversation from memory as long as one day afterwards, and furthermore, there was no unreliable or inaccurate record. 142.The decision in Lee Yi Choi was made in the light of the special circumstances of the case, and it is irrelevant to the issue in the present case. In fact, in Lam Tat Ming, the Court of Final Appeal showed reservations towards the decision in Lee Yi Choi. The Chief Justice emphasized that the confession evidence was unreliable because the undercover officer only made a record of the conversation the following morning. 143.The present case involves two types of interests, both of which are public interests. One is about enforcing and ensuring the protection that citizens are entitled to under the constitution, and the other is about facilitating the law enforcement agents to solve crimes and to bring criminals to justice. I cannot ignore the fact that most crimes are committed secretly, and very often investigators have to use covert means to collect evidence. These means are permitted by the law. As the Chief Justice commented in Secretary for Justice v Lam Tat Ming (2002) 3 HKCFAR 168 at p. 180J, “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.” 144.It is very important and beyond doubt that law enforcement agents should be able to combat crime effectively. Article 30 of the Basic Law provides that the freedom and privacy of communication of residents shall be protected, but this right has to give way when it is necessary to ensure public safety and investigate into criminal offences, although the law enforcement agents will have to act in accordance with legal procedures when they infringe upon the above rights. 145.Even when the law enforcement agents’ means of obtaining evidence are unconstitutional, the court still has to strike a balance between protection of constitutional rights and investigation of crimes. I find that this issue should be dealt with in the same way as how evidence obtained by infringing defendants’ right of silence is being dealt with. The court has to take into account the various factors set out in Chan Kau Tai by the Court of Appeal, especially the chance of the defendants getting a fair trial. This is similar to the main factor that the Court of Final Appeal took into account in Lam Tat Ming when deciding whether evidence obtained by infringing the right of silence should be admissible. 146.The court needs to strike a balance between the two conflicting rights and at the same time ensure defendants’ right to fair trial. When dealing with this question, all relevant factors have to be taken into account, and the court cannot exclude the evidence concerned simply because it is against the ICAC’s obtaining evidence by secret recording. 147.In Lam Tat Ming, the Court of Final Appeal not only highlighted the importance of fair trial, but also talked about the gravity of offences. However, the Court of Final Appeal also said that the court could not give too great a weight to gravity of offences such that the defendants’ right to fair trial would be diminished. 148.But the Court of Final Appeal stressed the following:
149.When the court exercises its discretion, it should of course also take into account other factors, including whether the defendant’s defence was respected, especially whether the defendant had a chance to challenge the authenticity and reliability of the evidence or to object to it being admitted; whether the defendant had a chance to ask the relevant witnesses questions; whether the confession was made by the defendant voluntarily, which means the defendant was not induced or lured into confessing; and whether the quality of the evidence, which includes whether the circumstances under which the evidence was obtained would cast doubt on the accuracy and reliability of the evidence. 150.The applicants are all serving police officers, so they must necessarily be familiar with police investigation procedures and rights of suspects. They were arrested for suspected direct or indirect involvement in supplying prostitutes to brothels and/or taking part in prostitution business. The charges they are facing are really very serious ones. After their arrest, they confessed when they were having normal interaction with Wong Kwok Leung and Ho Yiu Choa, and to avoid the consequences of crimes they had committed, they even behaved in such a way that amounted to committing other offences. They also made the confessions voluntarily without being interrogated (the above ruling of the trial judge was not challenged by the applicants). 151.In the present case, there is absolutely no functional equivalent of an interrogation as described in Allan v United Kingdom (2003) 36 EHRR 12. Neither Wong Kwok Leung nor Ho Yiu Choa interrogated the applicants or induced them into confessing or committing crimes that they otherwise would not commit. Wong Kwok Leung and Ho Yiu Choa also did not establish any special relationship with the applicants, which would render their confessions as being obtained with coercion. 152.The background of the incidents clearly reveals that the applicants voluntarily confessed to Wong Kwok Leung and Ho Yiu Choa, because they were the applicants’ co-conspirators, and they knew about the applicants’ criminal acts, so there was no need for the applicants to conceal anything when they were talking with them. The investigation conducted by the ICAC in the present case was in no way unfair to the applicants, and would definitely not make the trial unfair. 153.At trial, the applicants all had a chance to question the two undercover conspirators and all the ICAC officers concerned to test the authenticity, accuracy and reliability of the evidence. Their confessions are evidenced by audio recording, and they also had a chance to give an explanation about what is contained in the record. 154.I can really find nothing that indicates that adopting the audio recording concerned would result in an unfair trial or would cause other unfairness. Taking the incident as a whole, the applicants’ allegation that the ICAC has committed acts which tainted the execution of justice is totally unfounded. 155.The trial judge has carefully analyzed the grounds of objections put forward by the applicants. I agree with the trial judge's analysis on this issue. I also find that adopting the audio recording concerned as evidence is reasonable and fair. I do not accept the applicants’ objection to the admissibility of the audio recording concerned. I find that none of the grounds of appeal concerning the violation of the privacy of communication or the freedom of communication or concerning the right of silence can stand. 156.According to Mr Iu, it can be seen from the judgment that the trial judge was of the view that P.13 and P.16 can only be evidence of Count 6, but not Count 1. Hence, supporting evidence of Count 1 came solely from Wong Kwok Leung. Mr Iu strongly argued that Wong Kwok Leung is not an honest and reliable witness, and so D4’s conviction in Count 1 was unsafe. 157.Mr Iu relied on the following two paragraphs in the judgment to support his position:
158.The trial judge only pointed out that the audio-recorded confession of D4 could not be used against other defendants because it was not made for the conspiracy. The trial judge did not say that D4’s confession could not be used against D4 himself. 159.There is no reason why D4’s confession should not be used as evidence against him. In fact, the only purpose of adopting P.13 and P.16 was to use the confessions of the individual defendants in the audio recording against the particular defendants. 160.The trial judge never said that D4's confessions in P.13 and P.16 would not be taken into account when deciding whether Count 1 that D4 was facing could be made out. 161.The trial judge did list out the confessions D4 made in P.13 and P.16 in detail. In deciding whether Count 1 could be made out, the trial judge specifically mentioned that “(D4) suggested carrying on with the business at Champagne in the audio recording”. It is impractical to argue that the trial judge did not take into account P.13 or P.16 when deciding whether Count 1 could be made out simply because the trial judge did not mention at page 79K-M that the audio recording supported Wong Kwok Leung’s allegations against D4 in Count 1. 162.There is no doubt that Wong Kwok Leung is not a person of integrity. He has a triad background. His evidence is self-contradictory and some of it is also at odds with evidence given by other witnesses. He has a motive to put the blame on others. He is the principal operator of the establishment at Champagne, but he requested on his own initiative to become a tainted witness, to assist the ICAC with their investigation, to collect evidence and to give evidence against the defendants. The way he acted when he was giving evidence revealed that he was very good at protecting his own interests. Despite all that is canvassed above, it does not mean that Wong Kwok Leung’s evidence against the defendants is untrue, nor does it mean that the trial judge must exclude his evidence or refrain from relying on his evidence. 163.The trial judge clearly stated that in assessing the credibility and reliability of Wong Kwok Leung’s evidence, the factors making Wong Kwok Leung’s evidence unreliable as highlighted by the defence were being taken into account. Despite Wong Kwok Leung's various shortcomings, it does not necessarily follow that he lied or falsely accused the applicants. As a matter of fact, his evidence against the applicants is very strong and highly credible. 164.I cannot ignore the fact that Wong Kwok Leung’s evidence is not only corroborated by the documentary evidence, but also supported by the audio recording. When the applicants gave no evidence, and called no witnesses to explain about, rebut or undermine Wong Kwok Leung’s evidence, the trial judge was fully entitled to accept Wong Kwok Leung's evidence against the individual applicants. 165.I do agree that the trial judge’s way of dealing with the credibility of D3’s evidence was wrong. One of the reasons why the trial judge found that D3’s evidence was incredible was that during the investigation stage, D3 did not disclose the explanation that he gave when he was giving evidence in defence. The law does not permit this. In Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, Non-permanent Judge Mr Justice Mortimer made it clear at paragraphs 55 and 56 of the judgment,
166.However, the trial judge’s fault did not necessarily have any effect on his finding against D3’s evidence. 167.D3’s defence was that he thought that Wong Kwok Leung had a guesthouse that charged on a daily and hourly basis, and he withdrew his shares 1 or 2 days after he had made the contribution. 168.The trial judge said that D3 had been in the force for 10 years already, and he had been attached to districts abound with prostitution, such as Sham Shui Po and Mong Kok. Although he was not specifically assigned to combat prostitution, he had been attached to the detective team and the crime squad before, so he must necessarily be familiar with the relation between the prostitution business and hourly hotels. However, D3 said that he had intended to invest in the hourly and daily hotel business, and even intended to apply to the Commissioner of Police for approval to make the investment. This is utterly absurd. The trial judge also said that D3 knew that Wong Kwok Leung had been arrested for operating a vice establishment, and he himself was therefore also arrested. However, he did not blame Wong Kwok Leung for his being implicated ‘innocently’, nor did he try to stay away from Wong Kwok Leung to avoid suspicions. On the contrary, he was concerned about him; he also helped him, gave him advice and was worried about him. What D3 said was extremely incredible. An innocent high-ranking police officer would definitely not act as he did. 169.Just as what the trial judge described, D3’s concern about Chu Tsai and the prostitutes as shown in the audio recording revealed that he had a ‘personal worry’. D3 not only asked Wong Kwok Leung to find Chu Tsai’s triad big brother in a bid to control Chu Tsai, but also claimed that he suspected that there was a betrayer. D3 also said that he could assist if a triad big brother was to be found to control Chu Tsai. He also told Wong Kwok Leung to contact him with street phones so as to avoid suspicions. None of the above is consistent with his suggestion that he was being innocently implicated. 170.I have taken into account the relevant audio recording. I find D3’s evidence in defence very flimsy, which no reasonable tribunal would accept. 171.In the premises, the trial judge's fault had no effect on his decision against D3’s grounds of defence, and there is no impact or influence on the decision to convict the applicants. 172.I have considered the grounds of appeal put forward by the applicants. I find that none of the grounds could stand. Overall speaking, there is sufficient evidence to support the charges concerned. I find none of the applicants’ convictions unsafe. I dismiss the 3 applicants' application for leave to appeal. Hon Tang JA: 173.I have had the benefit of reading in draft the judgments of Cheung JA and Yeung JA. I agree with their statements of the background and facts of this case. It is unnecessary for me to state them in any detail for the purpose of my judgment. However, since they differ in their understanding and application of important principles, I shall endeavour to express my own views. Freedom and Privacy of Communication 174.It is important to distinguish between the right of privacy and the admissibility of evidence obtained as a result of any breach of the right of privacy. 175.Evidence which is obtained in breach of the right of privacy is not inadmissible per se. What is the appropriate consequence, having regard to the breach of privacy, must depend on all the circumstances of the particular case. The critical question is the fairness of the trial, and the relevant considerations for the exercise of the discretion to admit or exclude such evidence can be found in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400. 176.We are here concerned with the freedom and privacy of communication which are protected by the Basic Law as well as the Hong Kong Bill of Rights Ordinance (“the Bill of Rights”), Cap. 383. 177.Under Article 30 of the Bill of Rights, the freedom and privacy of communications may be infringed:
178.Since the legitimate requirement of such needs can be satisfied by appropriate “legal procedures”, I do not believe it is necessary to further limit the freedom and privacy of communication to meet their needs. So I must give the freedom and privacy of communication:
Participant Surveillance 179.Here we are concerned with participant surveillance. Both Ho and Wong must be regarded as informers and agents of the state. 180.Mr Tam, counsel for the respondent, submitted that the right of privacy was not engaged because there was no reasonable expectation of privacy, for one or more of the following reasons:
181.On the first submission, Mr Tam relied on R v Bailey and Others [2001] EWCA CA Crim 733, a decision of the English Court of Appeal. 182.There, two undercover police officers moved into an upstairs flat and became acquainted with Brewin and Shona Stewart, who occupied the flat beneath them. They made tape recordings with concealed tape recorders of conversations involving them at Brewin’s flat or during phone calls made from the flat in their presence. One of the arguments relied on was that the tape recordings were produced in circumstances which constituted a breach of Articles 6 (right to a fair trial) and 8 (right of privacy) of the European Convention of Human Rights (“the Convention”). The judge, Judge Bray, concluded that Article 8 had been breached because:
183.The Court of Appeal disagreed:
184.In Bailey, the question was whether the police officers could be regarded as trespassers. Had the conversation taken place in the officers’ flat upstairs instead of in Brewin’s flat, no question of trespass would have arisen. 185.The precise point with which we are concerned, namely, whether a claim to privacy could avail when the tape recording was made with the consent of a participant, was not raised. 186.Moreover, the tape recordings were authorized by the chief constable (see para. 6), without any breach “of the relevant statutory principles” (para. 34), I would not regard Bailey as supporting Mr Tam’s submission. 187.In Canada in R v Duarte [1990] 1 SCR 30, La Forest J delivering the judgment of 6 of their lordships in the Supreme Court of Canada said at 43, of participant surveillance:
188.I find the reasoning compelling. The respondent’s submission is that provided a participant to a conversation consents to the tape recording on behalf of the state, no question of privacy of communication can arise, regardless of the content of communication. In other words, the ability of the state to record one’s communication is only limited by its ability to find a willing participant. To agree with this submission means one would sanction uncontrolled and possibly indiscriminate recording on behalf of the state. I do not believe that to be tolerable in a civilized society. Nor is that a necessary sacrifice for the needs of public security or of investigation into criminal offences. As I have said, the right to infringe the freedom and privacy of communication to meet the needs of public security and of investigation into criminal offences is permitted by Article 30 of the Basic Law. The legitimate requirement of such needs can be dealt with by appropriate “legal procedures”. Nor should the question be confused with the admissibility of any evidence obtained as a result of the breach. That is a separate question. I have no doubt that there exists a right of privacy of communication in the sense of a reasonable expectation of privacy that the state would not tape or listen to the conversation even with the consent of a participant. I agree with the majority in R v Duarte that:
In this context, I see no meaningful distinction between a participant who is an undercover agent, an accomplice turned informer and a common informer. 189.The second submission is that there can be no expectation in privacy for conversations which were held in a public place. The Law Reform Commission of Hong Kong (“the Commission”), in its report Privacy: The Regulation of Covert Surveillance, at para. 2.41 endorsed the view expressed in the Commission’s report on Civil Liability for Invasion of Privacy, though not in the present context and said:
190.There, they were dealing with the question of targeted photography or filming of a person in a public place. In the case of conversation, it is difficult to see why there could be no expectation of privacy, for example, for a whispered conversation held in a country park chosen for its seclusion. If the respondent's submission is correct, it means that whether or not the state has the permission of a participant, it would be free from the constraints of the protection of privacy of communication to tape record or to listen in to any conversation which takes place in a public place. I do not believe that to be the law. The authorities are against Mr Tam. 191.Campbell v MGN Ltd [2004] 2 AC 457 is a case which shows quite clearly that there could be a reasonable expectation of privacy in relation to activities which took place in a public place. In that case, the model Campbell was photographed in a street as she was leaving a self-help group for drug addiction. The fact that she was photographed in a public place did not preclude her from having a reasonable expectation of privacy. The House of Lords were unanimous on this. 192.The third submission is that, since the conversations were about criminal activities or amounted to criminal activities, there could be no expectation of privacy. Mr Tam gave the example of A, in robbing C, told him to hand over all his money otherwise he would kill C. Mr Tam asked rhetorically whether C would breach A’s right of privacy if C were to relate this to the police or at the trial of applicant. The answer must be no. But we are not concerned with such a situation here. What we are concerned with is whether an individual has a reasonable expectation of privacy in the sense that he has a reasonable expectation that the state would not tape record or listen in to any conversation between that individual and another person or persons, even when the state has the permission of that other person or persons to do so, except:
193.Also, I am not concerned with the admissibility of the evidence of that other person or persons. On the authorities, subject to the question of the right of silence dealt with below, their evidence would be admissible. Nor am I here addressing the admissibility of the tape recording. Nor am I concerned with the right of that other person or persons to tape record the conversation or to allow someone (say, a spouse) to listen in to the conversation. What I am concerned with is the right of the state to do so. In R v Duarte the Supreme Court of Canada was of the view that the state should not be allowed to do so without “prior judicial authorisation”. In Hong Kong, Article 30 of the Basic Law requires that the state should only do so in accordance with proper “legal procedures”. What legal procedures are required is not the concern of this judgment. 194.As for the third submission, I do not believe it is possible to say that there is no reasonable expectation of privacy if one engages in conversation about criminal activity with a police informer. It is not suggested that if the conversation is with an accomplice who is not an informer, there could be no reasonable expectation of privacy, because the conversation was about criminal activities. I do not believe the added fact that a participant to the conversation is a police informer and who consented to the tape recording, is a sufficient reason to deny a reasonable expectation of privacy. Reasonable suspicion of criminal activity might justify the tape recording, provided it is done in accordance with legal procedures. That is permitted but not because there is no reasonable expectation of privacy. As La Forest J said in R v Wong [1990] 60 CCC (3d) 460 at 481:
195.I do not accept that reasonable expectation of privacy should depend on the content of the conversation. Were that so, Article 30 of the Basic Law would be rendered meaningless. 196.Having dealt with the three submissions separately, I turn to consider whether these three elements, or a combination of some or all of them, could negate any reasonable expectation of privacy. 197.I do not believe the mere fact that a conversation took place in a public place, whether in combination with one or more of the other two elements, is sufficient to negate a reasonable expectation of privacy. As I have said, whether or not one has a reasonable expectation of privacy in a public place must depend on all the circumstances. Even if all three elements were present, I believe there could still be a reasonable expectation of privacy. 198.So here, since the tape recordings were not made in accordance with legal procedures, I would hold that the freedom and privacy of communication of the applicants have been infringed. Admissibility of the tape recording 199.199. As I have said, the fact that one's right of privacy has been infringed would not per se lead to the inadmissibility of the evidence obtained as a result. Bailey is directly in point. It is not disputed that the informers Ho and Wong would be permitted to give evidence of their recollection of the conversations. On behalf of the applicants it was argued that because the judge had not exercised his discretion whether or not to exclude the tape recording, because no objection was taken to their admission on this ground, there should be a new trial. I agree with my brethren that we should deal with the admissibility of the tape recording. 200.In R v P and Others [2002] 1 AC 146, Lord Hobhouse of Woodborough said at 159 with the concurrence of the other law Lords, of the decision of the European Court of Human Rights in Schenk v Switzerland [1988] 13 EHRR 242:
201.Bailey which followed of R v P was to the same effect. There, Lord Justice Judge, giving the judgment of the English Court of Appeal said:
202.Earlier I have said the relevant considerations for the exercise of the discretion to admit or exclude evidence obtained in breach of the right of privacy can be found in Chan Kau Tai. But, here, the evidence of Ho and Wong would in any event be admissible. I am of the view that for the reasons stated in Bailey, in such circumstances, the only proper decision is to admit the tape recording. The due administration of justice requires the production of a reliable record of the conversations. As Judge LJ put it such evidence:
203.Moreover, as Judge LJ also noted, Ho and Wong would have been entitled to refresh their memory by reference to the tape recording. 204.I believe we are in as good a position as the judge to exercise the discretion. I can see nothing which could persuade us to exclude the tape recording. Right of Silence 205.I turn to the question of the right of silence. I believe the case of Allan v The United Kingdom [2003] 36 EHRR 12 is the most helpful authority on the subject. 206.In that case, recordings were made of the applicant's conversations with a friend in the prison visiting area and with his co-accused in the cell they shared, and a police informant was placed in the applicant’s cell for the purpose of eliciting information from him. On the subject of the privilege against self-incrimination or the right to silence, the European Court of Human Rights said:
207.In Allan there was the functional equivalent of interrogation. Here, it is quite clear from the transcript of the tape recording, there was no functional equivalent of interrogation. 208.I agree with Cheung JA that the nature of the relationship between the informer and the accused may make the evidence inadmissible. However, I do not believe that the fact that Wong was a good friend and an accomplice was sufficient. Cheung JA refers to the case of R v Broyles [1991] 3 SCR 595 (which was also referred to in Allan) where Iacobucci J at page 611 identified two relevant factors on what might amount to impermissible elicitation. The first was the functional equivalent of interrogation. The other concerned:
209.I do not believe the fact Wong was a good friend and an accomplice fell within the type of relationship which would under the conversation inadmissible. I acknowledge that Iacobucci J made clear that the list of factors was not exhaustive. But I believe the rationale is that some relationship, e.g. parent and child, master and pupil, doctor and patient, might render the admission made by the accused not voluntary. In that case, the statement should not be admitted. In other words, elicitation by the functional equivalent of interrogation or the functional equivalent of a person in authority may amount to compulsion, and might render the evidence inadmissible. 210.This approach is consistent with the approach adopted by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming and Another [2000] 3 HKCFAR 168. There the court was concerned with a confession obtained through an undercover operation where the crimes had been committed and there was a suspect, although the suspect had not been charged. The Chief Justice said at 181I:
211.I am of the view that the same approach is appropriate in a case where the suspect has been charged and elected to remain silent. The underlying rationale is that one should not be compelled to incriminate oneself. This right is as important when one is a suspect as after one has been charged. 212.I am of the view that the right of silence has not been infringed. P13 and P16 are admissible and rightly admitted by the judge. Disposition 213.I agree with Yeung JA that the 1st defendant’s application should be dismissed. Also that the 4thdefendant’s application in relation to the 6thcharge should also be dismissed. The 4th and 5th defendants’ conviction regarding the 1st charge 214.In this regard I agree with Cheung JA regarding the judge’s misdirection regarding the 3rddefendant. I also agree with Cheung JA’s conclusion in para. 39 of his judgment. 215.The evidence against the 1st defendant was strong. The 3rd defendant’s defence was highly improbable. The judge found it to be incredible. But unfortunately, the judge also found it necessary to make an adverse comment on the fact that the 3rddefendant had chosen to remain silent after arrest. Had the 3rddefendant appealed to us, I believe I would have felt it just to allow the appeal and order a re-trial. In such circumstances, since the 4thand 5thdefendants ran the same defence, I believe I would have made a similar order in relation to them. There is no appeal from the 3rddefendant. He has absconded. But that should make no difference. This is a case where, despite the odds, the judge might have acquitted the 3rddefendant on the basis of his evidence. That turned on his credibility. Since the judge in assessing the credibility of the 3rddefendant has taken an adverse view of his having remained silent after arrest, I believe fairness requires me to give the benefit of doubt to the 3rddefendant and by extension to the 4thand 5thdefendants. 216.So I agree with Cheung JA that the 4thand 5thdefendants’ appeal against the conviction on the 1st charge should be allowed. Hon Cheung JA: Orders 217.This Court refuses the application for leave to appeal against conviction by the 1st defendant against the second and fourth charges. This Court by a majority allows the application for leave to appeal against conviction by the 4thand 5thdefendants against the first charge. The application is treated as the appeal proper and the Court allows the appeal and quashes the convictions. This Court refuses the application for leave to appeal against conviction by the 4thdefendant against the sixth charge. 218.In this appeal counsel for the defendants are instructed by the Director of Legal Aid. In respect of their fees application, this Court will issue a certificate of ‘exceptional complexity’ pursuant to section 21(2) of the Legal Aid in Criminal Cases Rules, Cap. 221.
Mr. Simon Tam, SGC of Department of Justice, for the Respondent Mr. Hectar Pun, instructed by Messrs A.M. Mui & Kwan, for the 1st Defendant/1st Applicant Mr. Thomas Iu, instructed by Messrs Siao, Wen and Leung, for the 4th Defendant/2nd Applicant Mr. Newman Wong, instructed by Messrs Wong & Co., for the 5th defendant/3rd Applicant |
Cases cited in this judgment
Further hearings and rulings under CACC 528/2004