HKSAR v. Lam Hon Kwok Popy and Others

[English Translation – 英譯本]
CACC 528/2004

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)

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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

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CORRIGENDUM

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The judgment given by the Court of Appeal on 21 July 2006 should be corrected as follows:

1.Lines L to Q at paragraph 14 on page 7 are corrected as follows:

“14. My view is that Hong Kong residents, which include the 3^rd, 4^thand 5^thdefendants, 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 which is only intended to be heard by the listener and the noise level of the conversation could only be heard by the listener and not by parties other than those engaged in the conversation. ……”

2.Lines D to F at paragraphs 1 and 2 on page 17 are corrected as follows:

“The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk(?)

… … ”

Dated the 28^th of July 2006