Ho Man Kong v. Superintendent of Lai Chi Kok Reception Centre and Another

CACV 161/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 2011

(ON APPEAL FROM HCAL NO. 17 OF 2011)

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BETWEEN

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D E C I S I O N

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Hon Stock VP (giving the Decision of the Court):

1.On 31 July 2012 we dismissed an appeal from the refusal of a judge of the Court of First Instance in the context of extradition proceedings to issue a writ of habeas corpus. We handed down our reasons on 21 September 2012.

2.By notice of motion dated 19 October 2012 the applicant seeks leave pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484, to appeal to the Court of the Final Appeal on the ground that the questions involved in the appeal are ones which by reason of their great and general public importance or otherwise ought to be submitted to the Court of Final Appeal for its decision.

3.A question has arisen whether by moving for leave as if this were a civil cause or matter, the applicant is in error.  The respondent asserts that looking at the nature and character of the proceedings in which habeas corpus was sought and giving that the matter was one the outcome of which would be the trial of the applicant and his possible punishment for an alleged offence, the proposed appeal is an appeal in a criminal matter and that the appropriate avenue was to apply to the Court of Final Appeal for leave pursuant to section 32 of the Ordinance and that an application for a certificate under section 32(2) was the appropriate avenue.  Although counsel for the applicant does not accept this proposition the applicant has in order to cater for the possibility of its correctness filed in the alternative a notice of motion under section 32(2) as well as a summons for the necessary extension of time to make the section 32(2) application. 

4.Either application can only succeed if we were to agree, first that the questions involved are questions of great and general public importance and, more particularly for present purposes, that the points raised are reasonably arguable.

5.In the event, the question whether this is a civil or criminal matter is not necessary for us to resolve for on either approach we would not be prepared to accede to the application since we do not consider the points raised to be reasonably arguable.  Insofar as is necessary, we extend time for the purposes of the section 32(2) notice of motion.

6.The questions of great general public importance which are posed by the notices of motion are these:

“1. Whether Article 30 of the Basic law (which provides: “The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences”) renders telecommunications interception product, whether as defined in section 61(8) of the Interception of Communications and Surveillance Ordinance (Cap. 589) (the “ICSO”) or otherwise, inadmissible as evidence in proceedings before Hong Kong courts, and in particular:

(1) Whether the exception contained in Article 30 (namely “that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences”) can be construed so as to encompass admission into evidence of telecommunications interception product or whether such exception, being an exception to a constitutionally protected right, should be construed narrowly;

(2) Whether the exception contained in Article 30 (namely “that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences”) can be construed so as to encompass admission into evidence of telecommunications interception product or whether the exception must be construed in accordance with the principle of proportionality, namely that restrictions on a constitutionally protected right should go no further than is necessary to accomplish the objective of the restriction (in this case, the needs of “investigation into criminal offences” in distinction to use as evidence in court);

(3) Whether the ‘legal procedures’ requirement of the exception contained in Article 30 (namely “that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences”) can be satisfied so as to permit admission into evidence of telecommunications interception product in circumstances in which the inadmissibility provisions of section 61 (1) of the ICSO have been held not to apply and (in extradition proceedings) the question of discretionary exclusion of evidence falls to be determined (if at all) by a non-Hong Kong court.

2. Whether section 61(1) of the ICSO in allowing for telecommunications interception product obtained otherwise than pursuant to a “relevant prescribed authorization” to be admissible in evidence before Hong Kong courts (while rendering identical material inadmissible when obtained pursuant to the requisite ICSO authorization) is therefore absurd and/or incompatible with Article 30 of the Basic Law and/or the intention of the legislature, and in particular:

(1) Whether section 61(1) ICSO - subject as it is to the restrictive definition of “telecommunications interception product” in section 61(8) - is necessary, rational and proportionate insofar as it allows for admissibility into evidence of telecommunications interception product obtained otherwise than pursuant to a “relevant prescribed authorization” (whereas telecommunications interception product obtained pursuant to such authorization will be inadmissible);

(2) Whether and to what extent the English authorities (R v P [2002] 1 AC 146 and R v Aujla [1998] 2 Cr App R 16) can be relied upon to interpret the purpose of the inadmissibility provisions of the ICSO when such authorities were decided under:

(a) A statutory regime governed by the Interception of Communications Act 1985 which differs in material respects from that provided for by the Hong Kong ICSO;

(b) A human rights framework that differs in material respects from that provided by the Hong Kong Basic Law.

(3) Whether the court accordingly has a duty to “read in” or “read down” the ICSO as may be necessary to ensure that all telecommunications interception product (whether obtained pursuant to a “relevant prescribed authorization” or otherwise) be inadmissible in evidence in any proceedings before any court in Hong Kong other than to prove that a relevant offence (as defined in s.61 (8) of the ICSO) has been committed.”

7.This is not the occasion to rehearse once more the reasoning of our judgment dated 21 September 2012 and we do not wish to be tempted into recasting the reasoning in the light of the recast arguments; for, in this instance, such a recast would be a second judgment to the same ultimate effect as the first. 

8.As we say, and with respect, we do not consider the issues in this case to be reasonably arguable in the applicant’s favour and, accordingly, we decline to certify.

9.For the sake of completeness, we should say that if this is properly categorized as an application for leave pursuant to section 22(1)(b), we decline, for the same reasons, to grant leave.

10.The costs of this application shall be to the respondent to be taxed if not agreed.

Mr Andrew Lynn, instructed by Haldanes, for the Applicant

Mr Wayne Walsh, Deputy Law Officer (Mutual Legal Assistance), of Department of Justice for the Respondents