HKSAR v. Kwok Wing

HCCC 217/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2014

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REASONS FOR DECISION

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The application

1.This is an application by the prosecution to exclude certain documents (the Documents), which they conceded to be potentially relevant to the defendant’s impending application for a Stay of Proceedings (the Stay application) from disclosure, on the ground that the Documents were subject to public interest immunity (PII).

2.After hearing submissions I ruled in favour of the prosecution that the Documents were subject to PII and not to be disclosed to the defence.

3.I indicated at the time that I would give my reasons in due course, which I now do.

Background

4.The defendant Kwok Wing was indicted for a number of counts involving HK$1.3 billion: one count of conspiracy to defraud, 21 counts of theft and 2 counts of money laundering.  There is no need to spell out the allegation of the prosecution against the defendant for the purpose of this application.  Suffice to say that the original trial dates were vacated as a result of the defendant’s Stay application and the request for disclosure.

5.In the Notice (of the Stay application) dated 31 March 2015, the defendant alleged that the Hong Kong Police (HKP) had engaged in a grave abuse of process by participating in a sham extradition to have the defendant unlawfully removed from Macau and taken to Hong Kong in the custody and under the control of HKP.  The defendant claimed that such a blatant and serious misconduct on the part of the Executive calls for punishment and the only remedy is a permanent stay of proceedings.

6.I was informed the defendant had requested for the disclosure of materials relevant to the Stay application, including any information and/or material relating to any contact between the Hong Kong and Macau jurisdictions during the period of the defendant’s detention in Macau and his arrival in Hong Kong.

7.The Documents which the prosecution claimed PII consist of correspondence from the “Unitary Police Service of Macao” (UPSM) after the defendant arrived in Hong Kong from Macau.

Correct approach for PII application

8.There is no dispute as to the correct approach to be adopted for an application of this nature (see Archbold Hong Kong 2015, 12-89, citing R v Davis, Johnson & Rowe (1993) 97 Cr App R 110 CA)

9.The application before me is made inter-parte and the defence had been provided with the relevant Certificate of the Chief Secretary for Administration (the Certificate).  The defence was also given the opportunity to make submission to me during the hearing.

Test to be adopted

10.There is again no dispute that the correct test to be adopted is one of a balancing exercise.  As Taylor Chief Justice said in R v Keane [1994] 1 WLR 746, at 751 C-E:

“Where the prosecution rely on public interest immunity or sensitivity, given that it is for the court to decide whether disclosure is to be made and the scope of cross-examination, what ought the court’s approach to be? … the court has to carry out a balancing exercise. As Mann LJ put it in Reg v Governor of Brixton Prison, Ex parte Osman [1991] 1 WLR 281, 288: ‘Suffice it to say for the moment that a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty … the weight to be attached to the interests of justice is plainly very great indeed.”

11.Clearly, the Documents must be “relevant” to the issues before the court.  Relevance include information and material which may assist or advance the case of the defence, or undermine the prosecution case (see HKSAR v Lee Man Tee (No. 2) (2003) 6 HKCFR 336, at para 143, per Sir Anthony Mason NPJ).

The Certificate

12.In the Certificate, the Chief Secretary confirmed that she had carefully considered the Documents and, after taken legal advice, has reached an opinion that the Documents were covered by PII on the ground that “their disclosure would be injurious to the public interest.”

13.The particulars were set out in para 6 of the Certificate. 

14.I do not think it necessary to set them out in full.  Suffice it to say that they referred to the cooperation between HKP and UPSM in crime-fighting and crime intelligence exchange.  Such dealings and correspondence are confidential.  Disclosure of such confidential correspondence between HKP and UPSM will prejudice future co-operation between the two jurisdictions – particularly when the Macau Government has explicitly objected to the disclosure of the information to other parties as the Documents are bound by judicial confidentiality in accordance with Macanese law.  There will also be a “knock-on” effect that other enforcement agencies from other jurisdictions may refuse to co-operate with the HKP if the HKP fails to keep classified information and intelligence confidential.

Prosecution submission

15.After referring to the relevant principle governing the present application, Mr Jonathan Man, SADPP (Ag) leading Mr Anthony Chau, SPP for the prosecution, submitted that the Documents did not contain anything to suggest there was any lack of good faith on the part of HKP (drawing an analogy with the case of Osman).  The Documents also did not contain anything to indicate that the HKP had engaged, in any way, in a grave abuse of process relating to the defendant’s deportation to Hong Kong.  The balance therefore clearly falls on the non-disclosure in the public interest.

16.Mr Man drew the Court’s attention to the fact that the Documents did not fall within the scope of the request for disclosure as they were correspondence between the two jurisdictions after the defendant arrived back in Hong Kong.

17.Having perused the written submission of the defence, Mr Man also invited this Court to consider granting an order prohibiting the defence from asking the prosecution to disclose information relating to the identity of the UPSM officers involved in the arrest and deportation of the defendant.

Defence submission

18.Mr John Reading SC leading Mr Yan Kwok Wing and Mr Micky Yip of counsel for the defence, referred to the lack of extradition arrangement between Hong Kong and Macau and the alleged circumstances of how the defendant came to the deported from Macau to Hong Kong.  He stressed the importance for the defence to have the identities of the officers involved in Macau to support the defendant’s contention that the deportation order was obtained unlawfully with the knowledge and connivance of the HKP.

19.Mr Reading made observation that in the case of Osman (supra), the documents in question were not relevant to the case put on behalf of Mr Osman.  He referred to the statements of the two police officers (WCIP Tso and Sergeant 45122) and submitted that the Documents would assist the defence in the Stay application.

20.Not having sighted any of the statements, I was informed that in her statement, SCIP Tso mentioned contacting one of three officers but she cannot now remember which one of the three she had contacted.  Sergeant 45122 stated that he had contacted 10 officers without mentioning names.  The defence submitted that they need the names of these officers to utilize the Letters of Request provision to obtain evidence in Macau.

21.The defence also suggested having a partial disclosure of the Documents by redacting those parts which caused the prosecution concern, or to have a summary or extract from the Documents.

A consideration of the submissions

22.As indicated, there is no dispute as to the applicable legal principle, it is a question of how to apply those principles in the present case.  I bore in mind what Mann LJ said in Osman (at p289 D-E):

“… It may be shortly put: do the interests of justice in the particular case outweigh those considerations of public interest as spoken to in the certificate? In assessing that side of the balance adverse to the certificate I ask whether a document to which the certificate relates is material to the proceedings. Its materiality will depend upon the purpose for which it is sought to be deployed …”

23.As the main concern of the defence was to obtain information relating to the identities of the UPSM officers involved, having perused each and every documents in the Documents, I was of the view that the Documents were not material to the proceeding of the Stay application.  They were not material to the purpose upon which the defence sought to be deployed.  Putting it in another way, the Documents were not relevant and would not assist the defence in the Stay application.  That being the case, public interests clearly prevailed in the balancing exercise: the Documents were subject to PII and not to be disclosed to the defence. 

24.As I ruled the Documents not material or relevant to the Stay application, it was therefore not necessary for me to consider the defence request for a partial disclosure by way of redacting the Documents, or to allow the defence to have a summary of the information, bearing in mind that partial disclosure might not be permissible (see Chu Woan Chyi & Others v Director of Immigration [2006] 4 HKLRD 280, Paras 79-85).

25.As to Mr Man’s request for an order prohibiting the defence from seeking disclosure of information leading to the identities of the UPSM officers from HKP, I was not prepared to entertain such a request as it was too general in terms and it also amounted to a “blanket” ruling.  This hearing was convened specifically to deal with the Documents to which the Chief Secretary for Administration had certified should be subject to PII.  There were no other documents or material before the Court for my consideration.

26.I bore in mind the defence was really after the disclosure of the identities of the UPSM officers.  I also appreciated that the Chief Secretary had certified (under para 7) that she objected “to any evidence sought to be elicited from the HKP in respect of the identities of the relevant officers of the [UPSM] with whom the HKP were dealing with as well as the mode and form of communication …”  Nevertheless, I was not prepared to simply give a blanket ruling requested by the prosecution.  In my view, the appropriate time for me to make such a ruling is during the Stay application – if and when the defence tries to elicit such information from the HKP witnesses when they are giving evidence.

27.Whilst I ruled that the Documents were subject to PII, there is nothing to stop the defence from approaching the UPSM to ascertain the identities of the officers in question.  The fact that the UPSM had explicitly objected to the disclosure of material provided to HKP by HKP does not mean that the Macau government would not entertain a direct request from the defence.

28.In any event, it was common ground that it is open to me to revisit the issue of PII at a later stage – should later circumstances call for such a course of action.

Conclusion

29.For these reasons, I ruled that the Documents were subject to PII and not to be disclosed to the defence.

Mr Jonathan Man, Acting SADPP leading Mr Anthony Chau, SPP of the Department of Justice, for HKSAR

Mr John Reading SC leading Mr Yan Kwok Wing and Mr Micky Yip, instructed by Wong and Associates, for the defendant/respondent