今年67岁的陈裘大，是香港家喻户晓的人物，他有好几个身份，每个身份都很耀眼。他曾任香港政府房屋署工程师，还是著名歌手陈奕迅的父亲；2003年还被控告为香港“大贪官”，他与廉政总署打了历时5年的官司，官司一波三折。
陈裘大出身贫寒，自小在香港元朗长大，算是乡下人。他的父亲在街市上卖猪肉，在他22岁时去世。小时候他非常瘦弱，他的母亲为他取名“求大”，但“求”字后被小学老师改成“裘”。
家境贫寒、身为长子的陈裘大初中辍学后，便跟师傅学艺，当起了小伙计，吃了不少苦头。16岁时，陈裘大通过考试成为政府助理绘图员。他当时刻苦上进，不断进修，在夜校读电机课程。到25岁那年，已结婚生子的他又考取政府奖学金留学英国。
1974年，陈裘大加入香港房屋署当助理工程师，1988年升为工程师，其间还在香港一所大学读管理学文凭，又在香港大学读公共行政硕士。但他曾向廉署职员抱怨过：“13年来没有升过职，仕途停滞，甚至被下属超前，好寂寞。”自幼家贫造成了陈裘大的急功近利、不甘人下的心态，这一心态促使陈裘大变成“大贪官”。
2000年8月，廉署接到对陈裘大的举报，便开始跟踪陈裘大，陈裘大却浑然不知。2001年年初，廉署在通知房屋署署长后，在陈裘大新办公室的天花板上安装摄录机，对陈裘大进行24小时的偷拍，2001年3月至7月期间，共偷拍到900盒录像带。
根据偷拍的录像带，廉署发现陈裘大多次与行贿者会面或午饭后，返回办公室清点大笔现金，甚至连门都不关。这也成为指控陈裘大受贿的铁证。除此之外，廉署还派人跟踪调查陈裘大。
2001年8月，在廉署开展的“蜻蜓行动”中，陈裘大被拘捕。2002年3月30日，廉署起诉陈裘大，指控陈裘大在1998年3月至2001年8月间，即任职房屋署工程师期间，涉嫌贪污330万港元，控告他涉嫌17项受贿罪及行为失当罪。
2003年11月13日，陈裘大贪污受贿案开审。陈裘大被主控官形容为“大贪官”。主控官指控陈裘大在任职房屋署工程师期间，收受贿款336万港元，贿款有2万港元至150万港元不等，大小通吃。甚至还胁迫受贿公司给他49万港元作“保护费”。
在庭审中，主控官称，陈裘大看“钱”极重，也爱赌球。陈裘大被控贪污涉及的其中200多万港元余款，不知所终。身为香港房屋署工程师的陈裘大月薪高达数十万元港币，行将退休的他，届时可领得近600万港元的退休金，另外还有每月约3.5万港元的长俸。所谓高官厚禄，羡煞不少人。但廉署发现，他银行户口中只有100万港元存款，是2001年存入的；在他办公室只找到6万港元现款。
房屋署總屋宇裝備工程師陳裘大涉貪污案，繼早前透露陳裘大的上司、副房屋署長鄔滿海跟廉署合作，令陳被捕後，控方昨再揭露早於2001年2月尾，時任房屋署長的苗學禮已向廉署發出同意書，容雪G署於陳的辦公室內安裝收音攝錄機，監視陳的一舉一動。另外，辯方昨承認一名涉嫌行賄者曾交20萬元給陳。
去信廉署同意裝攝錄機
控方又在庭上讀出一些控辯雙方均同意的事實，透露當時的房屋署長苗學禮於2001年2月27日去信廉署，同意廉署在陳的辦公室內安裝收音攝錄機，以監視陳裘大的舉動。
另外，辯方律師亦承認，涉嫌行賄者郭樹華的兒子郭偉元申請成為土木工程署合約工程師，郭樹華曾向陳裘大求助，陳在2001年7月多次聯絡當時的土木工程署長劉正光，劉最後運用酌情權，於同月23日聘請了郭偉元及另外兩名申請人。而陳裘大在27日與郭樹華午膳期間，郭將一個載有20萬元現金的公文袋交給陳。同月31日，陳裘大胞弟陳球強將20萬元現金存進自己的銀行戶口。
另外，控方昨傳召房署認可的工程公司負責人唐承浩出庭，指陳裘大在2001年6月4日跟他外出午膳，陳談到唐的公司因打算在一項房署工程中使用某種牌子的水泵，經常被投訴，陳建議唐更改另一個牌子的水泵，後來更助唐向該牌子的水泵代理議價。控方指，陳提議唐更換的水泵的代理商，正是涉嫌行賄者郭偉倫。
控方昨日已舉證完畢，辯方將於今日開始「反擊」。
陳裘大貪污罪成候判
房屋署總屋宇裝備工程師 陳裘大，因收受承建商及供應商合共300萬元賄款，被廉政公署拘控，今天2003年12月12日在高等法院原訟法庭被裁定罪名成立。
現年58歲的陳裘大，被裁定10項公職人員接受利益罪名成立，違反《防止賄賂條例》第4（2）條。
廉署搜集证据时，曾跟踪监视陈裘大达9个月，偷拍得他在办公室“数银纸”。陈裘大辩称自己“锺意数钱”，又指廉署要胁高调拘捕其子陈奕迅来迫他招供。但其辩护理由被主控官讥为“侮辱陪审团智慧”，陪审团亦不接纳他的辩辞。
法官彭鍵基把案件押後至明年1月5日宣判，以待被告的背景報告。被告暫時還押懲教署看管。
在10項貪污控罪中，其中9項指陳裘大收受多名房委會認可承建商及供應商合共280萬元賄款，作為向他們提供協助的報酬，並涉及與房委會及╱或房署之間往來事務的辦理及監管施工。
另一控罪指陳收受1名房委會供應商20萬元，作為協助其兒子申請政府合約工程師職位的報酬。
上述罪行在1999年4月至2001年8月期間發生。辩护大律师夏伟志说，陈裘大被判罪成後，一定会失去其退休金
2004年1月5日，香港高等法院宣判，13项控罪中有10项罪成立，陈裘大涉嫌接受贿赂罪名成立，包括协助新世界旗下佳定工程董事张定邦，取得房署一亿港元的黄大仙龙翔商场的机电工程；向上市公司耀生行及附属公司百达机电董事黄志良予以施工时的优待；协助物料供货商郭树华儿子取得政府工程师职位；更胁迫百达机电给他49万港元作“保护费”。
高等法院依据特区政府“防治贿赂条款”第201章12条判处陈裘大7年监禁，并且要求他退还多达260万港元的贿款。同时房屋署表示将按特区公务员条例的有关规定对其展开纪律聆讯，取消他550万港元的工资和退休金。陈裘大从高级官员沦为阶下囚，也成为自1973年香港英籍总警司葛柏被缉捕后，因贪污被定罪的香港最高级官员之一。陈裘大属D1首长级第一级，与70年代贪污总警司葛柏同级。比陈裘大高级的贪官有90年被捕的律政署副检控专员胡礼达（D3），及98年被捕的印务局局长马逸志（D5），但陈裘大牴触《防止贿赂条例》第4条，即收受利益後向他人提供优待，案情较为严重
区域法院裁定廉署证据违反基本法
案件宣判后，陈裘大不服，随后提出上诉。
陈裘大对定罪的重要证据提出异议，包括廉署在他办公室内安装摄录机，密拍到他多次与行贿人士会面以及在办公室内数收现金的场面。陈裘大质疑这些密拍资料能否呈堂作为证据。
在陈裘大案中，还有4名被告分别为沈超、洪基、余志伟及王天心，4人均为房委会认可机电工程供应商高层，廉署指控他们于1999年至2001年间，向房署人员提供贿款以及串谋其他人伪造账目。
辩方代表律师称，廉署在2002年5月拘捕余志伟的一名公司职员邓合成后，获邓同意成为廉署卧底，并暗中将公司内的文件交予廉署。廉署此举是未获搜查令而取得被告资料，侵犯市民私隐及个人通讯自由，违反基本法第30条。
香港基本法第30条规定，香港居民的通讯自由和通讯秘密受法律保护。除因公共安全和追查刑事犯罪的需要，由有关机关依照法律程序对通讯进行检查外，任何部门或个人不得以任何理由侵犯居民的通讯自由和通讯秘密。
2002年11月，余志伟得悉自己正被廉署调查，于是与邓合成一起约见律师寻求法律意见。邓合成按廉署要求偷录了他们的对话。
辩护律师称，偷录对话违反专业保密特权，除非廉署有足够证据证明会面内容涉及妨碍司法公正等违法行为，否则律师与客户之间的会面应该保密。基于廉署的调查手法违反基本法第35条有关港人得到秘密法律咨询的权利，令第三被告无法得到基本的法律保障，亦令其他被告难以得到全面证据，辩方申请终止聆讯(辩方要求法院不再审理案件，被告无须经过审讯便可释放)。
香港基本法第35条规定，香港居民有权得到秘密法律咨询、向法院提起诉讼、选择律师及时保护自己的合法权益或在法庭上为其代理和获得司法补救。香港居民有权对行政部门和行政人员的行为向法院提起诉讼。
辩护律师的说法得到了区域法院的认可。2005年7月6日，涉嫌贿赂陈裘大的4名房委会供应商高层，因廉署以偷录等方式取证违法，获区域法院裁定永久终止聆讯。区域法院裁定廉署偷录疑犯向律师寻求法律意见，违反基本法30条和35条，下令永久终止聆讯4名男女行贿陈裘大一案。
区域法院法官称，廉署高层明知会面时有律师在场，亦没有构成妨碍司法公正的情况下，照样准许下属盗录是严重失误；特别是此案已经有足够证据，盗录并非必须，廉署是滥用司法程序，故意破坏司法公正。
法官还批评廉署的搜证手法侵犯法律保密特权，公然漠视被告的权利，令审讯不能公平进行，属滥用程序，不但羞辱公众良知，亦严重打击市民对司法制度的信心，决定终止聆讯其他被告。
立法会保安事务委员会主席涂谨申也认为，廉署在陈裘大的案件中，有滥用权力的情况，指廉署不但将被告和律师之间的对话秘密录音，还将录音带作呈堂证供，是不可接受的。他说法例已保障市民寻求秘密法律咨询的权利，当局要澄清廉署是否要遵守有关法例。
但律政司表示，廉署证据收集合法，不认可区域法院就陈裘大案件终止聆讯。2005年7月，香港律政司司长梁爱诗表示，会与廉署商讨，是否就涉嫌贿赂房署工程师陈裘大的案件进行上诉。梁爱诗表示，他们要等待处理外判律师的报告，再研究法官的判辞，与廉政公署商讨后，再决定是否上诉。
2005年8月7日，律政司不服区域法院终止聆讯裁定，正式入禀高院，申请司法复核，要求高院法官推翻终止聆讯的裁决。律政司高级助理刑事检控专员薛伟成在入禀状中指出，区域法院下令永久终止聆讯，法官并没有考虑即使廉署侵犯专业特权，亦不等于要终止聆讯。
在香港，非法证据是指在刑事诉讼中，法律规定的享有调查取证权的主体违反法律规定的权限和程序，采用违法方法获取的证据材料。香港对非法证据的处理上，仍沿用旧的普通法判例和传统。
在香港，如果获取的证据具有相关性，即具有证明案情的能力，不能因取证方法的非法性而排除这种证据。但其运用如与审判的公正性相悖，如该证据的证明价值已被事实审的偏见思想对被告人可能造成不利影响，法官可根据自由裁量权加以排除。
而检验是否对被告人造成不利影响的最主要和关键的标准是是否侵犯了被告人的沉默权以及是否严重侵犯了其他被告人人身权利、自愿陈述、隐私权等基本权利。
律政司援引“司法公正”请求高等法院复核，强调廉署获得陈裘大案的偷录、偷听证据不是非法证据，要求高等法院认可对陈裘大案件偷录、偷听证据，推翻区域法院永久终止聆讯的决定。
律政司称，执法部门采取一些“特殊手法”进行调查，确有必要，否则很难对付一些狡猾或有组织的犯罪行为；同时现行法例并无任何条文规定执法部门(如廉政公署)，在何种情况下才能用偷听或窃听手段获取证据，香港有必要进行立法，制定严格守则，以免再出现类似情况。廉署证据获高等法院认可
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
陈裘大案申请司法覆核 聆讯需时一天
2005年08月07日 03:33
据香港文汇报报道 律政司不服区院暂委法官李慧思裁定廉署偷录疑犯向律师寻求法律意见，是目无法纪罔顾“法律专业特权”，违反《基本法》，下令永久终止聆讯4名男女行贿陈裘大一案，昨入禀高院正式申请司法覆核，直指李慧思法官犯上6项法律错误，要求高院法官推翻终止聆讯的裁决。
律政司高级助理刑事检控专员薛伟成在入禀状中指出，2002年5月3日ABB的职员邓合成因涉嫌串谋同他人向陈裘大提供利益而遭廉署拘捕，邓随即成为廉署卧底，协助搜证。同年11月16日，廉署从卧底口中得知总裁余志伟将与律师见面，乃在卧底身上暗藏录音机，将他们和两名律师的一小时会面对话录下。
薛伟成在入禀状中指出，暂委法官李慧思在判辞中认为廉署是蓄意录音，行为是羞耻和罔顾基本人权，打击司法公义，并违反《基本法》，裁定各被告不能得到公平审讯，下令永久终止聆讯，但法官并没有考虑即使廉署侵犯专业特权，亦不等于要终止聆讯。
薛伟成又质疑法官李慧思拒绝控方传召廉署首席调查主任吴炳国出庭的做法，入禀状又指出，吴炳国将解释廉署是有合理怀疑当日的会面，被告余志伟有可能着卧底向廉署提供虚假供词，以图妨碍司法公正，才着卧底携备录音机录取会面对话。
入禀状中表明，事实上廉署当时不知道出席会面人士是律师抑或师爷身份，控方亦曾要求法官容许控方进一步传召证人，以反驳辩方指廉署蓄意违反“法律专业特权”的指控，又要求法官亲自聆听该盒录音带内容，但均遭法官拒绝。
薛伟成在入禀状中提出，当时除了卧底外，其他被告尚未正式被拘捕，故所指的法律意见尚未属于敏感资料，且卧底早表明放弃“法律专业特权”，故当时在场的律师若向卧底及被告余志伟提供的法律意见是相同，即代表两人同样放弃保密特权，就算律师给予余是另一个法律意见，但基于余容许卧底在场，换言之余亦不受该特权保障。
律政司向高等法院寻求司法复核，高等法院同意了律政司的诉求，推翻了区域法院永久终止聆讯的决定，将案件发还区域法院继续审讯。
2005年12月，上诉法庭裁定获准陈裘大上诉，撤销他的10项收受利益罪名，并下令案件发还原讼法庭重审。
(辯方發現控方在該次審訊時，未有披露替陳進行錄影會面的總廉署主任楊恩德的醉酒駕駛案底，及其內部紀律聆訊，結果獲判上訴得直，惟上訴庭認為本案控罪嚴重及有證據支持，基於司法公義，故頒令重審。)
CACC26/2004
IN THE HIGH COURT OF
THE
HONG KONG SPECIAL
ADMINISTRATIVE REGION
COURT OF
APPEAL
CRIMINAL APPEAL NO. 26 OF
2004
(ON APPEAL FROM HCCC 333 OF
2002)
_________________________
|
BETWEEN
HKSAR
|
Respondent
|
and
|
|
CHAN
KAU TAI (陳裘大)
|
Applicant
|
_________________________
|
|
Before : Hon Ma CJHC, Woo VP and Tang JA in
Court
Dates of Hearing :
6‑9, 12‑14 December 2005
Date
of Judgment : 14 December 2005
Date
of Handing Down Reasons for Judgment
: 26 January 2006
________________________
REASONS
FOR JUDGMENT
________________________
Hon Ma CJHC :
1 These are the Reasons for
Judgment of the Court, to which each judge has contributed.
Introduction
2 The
Applicant was a Chief Building Services Engineer of the Housing Department
(“HD”). On 20 October 2003, he stood
trial before Pang J and a jury on an indictment containing 16 counts, each
alleging that he, as a public servant, had accepted an advantage, contrary to
the Prevention of Bribery Ordinance Cap. 201 (“the Ordinance”). On 12 December 2003, he was convicted on 10 counts. He was acquitted by the jury on
counts 2 to 4 and by the direction of the judge earlier in the
proceedings on counts 7 and 13. Count 15
was an alternative to count 14 on which no separate verdict was required. The jury had deliberated for 3 days before returning their verdict. They were unanimous on all the counts except
counts 2 to 4 where they acquitted the Applicant by a majority of
5 to 2; count 10, where they convicted by a majority of 5 to 2 and
count 11, guilty by 6 to 1.
3 On
5 January 2004, the Applicant was sentenced to a total term of imprisonment of
7 years. A
restitution order in the sum of $2.6 million was made in favour of the
government, pursuant to section12(1) of the Ordinance. The Applicant applied for leave to
appeal against conviction.
4 The
appeal first came for hearing before this Court (Ma CJHC, Stuart-Moore VP, Stock JA) on 25 January 2005. By a Notice
of Motion pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221,
the Applicant applied for leave to adduce evidence directed to the
non‑disclosure of the previous convictions and disciplinary records of Chief
Investigator Yang (“C I Yang”).(blogger's emphasis) Such evidence included an affidavit by
Mr Graham Anthony Harris, counsel for the defence at trial,
sworn on 28 November 2004.
5 On
25 January 2005, the Court felt that it could not proceed with the hearing of
the appeal in the absence of any evidence from Mr McNamara, who was counsel for
the prosecution at the trial. When the
hearing resumed on 26 January 2005, an affidavit of Mr McNamara was available.
On the basis of the evidence then before the Court, the Applicant decided
to allege that there was bad faith involved in the non‑disclosure. The hearing of the appeal had to be adjourned
for further evidence to be filed.
6 On
27 January 2005, directions were made by the Court for the filing of
evidence 60 days before the resumed hearing and for the
cross‑examination of all witnesses.
7 The
hearing of the appeal resumed on 6 December 2005 before the Court as now constituted.
8 We
heard oral evidence on the first 3 days followed by 4 days of submissions. On 14 December 2005 we gave leave to the Applicant to appeal against
conviction, allowed the appeal and ordered a new trial but reserving our
reasons.
Background
9 The
Applicant was arrested by ICAC officers at 6:45 a.m., 4 August 2001, led by C I Yang. He was in
ICAC custody until he was released on bail at about 5 p.m. on 5 August 2001.
10
Whilst in custody the Applicant had been interviewed on 3 occasions by C I Yang. All
3 interviews were video taped. The first interview took place between
10:49 a.m. and 1:43 p.m. on 4 August 2001, the second
interview from 10:23 p.m. to 11:31 p.m. the same day and the third interview took place
between 9:46 a.m. and 12:22 p.m. on the following day, 5 August 2001. The
admissibility of the video tapes and transcripts were challenged in a voir
dire.
11 On
30 October 2003, they were ruled admissible, the Judge being
“satisfied beyond reasonable doubt that the three interviews were conducted
under voluntary circumstances and that the defendant had not been subjected to
any form of oppression at any time”.
12 It is
common ground that only at the third interview did the Applicant incriminate
himself. He admitted receipt of corrupt
payments which formed the subject of some of the counts. The Applicant’s case was that he made those
admissions as part of a deal offered to him by C I Yang. This is how
the Judge described the inducements in his summing up : -
“… First, his son Eason would not be subject to
a high profile arrest when he returns from Taiwan.. Secondly, he would be tried
in the District Court and not in the High Court. The District Court would
attract a lesser sentence than the High Court.
Part of the deal was the ICAC would not interfere with his lady friends
or his relatives. No names will be mentioned. Another part of the deal, if he
co-operated with the ICAC and made admissions he would be given bail as soon as
possible”
13 It
was the Applicant’s case that the deal was offered to him by C I Yang in the 24 minutes between the end of the second interview and when
the Applicant was returned to the detention centre. Another ground of objection was that the
Applicant’s right to see a lawyer had been obstructed.
14 The
Applicant’s challenge to the evidence contained in the interviews, in
particular, the 3rd interview, was repeated before the jury. However, as the Judge has correctly pointed
out in the summing up, the jury was concerned with “whether the defendant made
the admissions in the records of interview, and if so, whether they are
true.” And that provided they were “sure
that the admissions were made and they are true, you are not entitled to
disregard those admissions just because the defendant’s right to see a lawyer
was obstructed.”
15 The
credibility of both C I Yang and the Applicant was of critical importance to the
admissibility and reliability of the interviews, the Judge being primarily
concerned with admissibility and the jury with reliability. The admissibility of these interviews was
relevant to the first Ground of Appeal which concerned the non‑disclosure of
C I Yang’s criminal convictions and
disciplinary records. The content of the
interviews themselves was relevant to the fourth, fifth and sixth Grounds of
Appeal.
16
Another important source of evidence against the Applicant at trial were
edited portions of tapes recording activities in his office between March and
August 2001. This surveillance of the Applicant was
obviously not carried out with his consent although it had the consent of his
superior. The legality of this
audio/visual surveillance and its admissibility at trial formed the subject
matter of the third Ground of Appeal.
The Grounds of Appeal
17 As
summarised in the Applicant’s written submissions, the grounds of appeal were as
follows : -
“Ground 1
:
The
Prosecution failed to disclose C I Yang’s criminal convictions and ICAC
disciplinary record in circumstances where C I Yang’s
credibility was critical to the judge’s determination of the admissibility of
the A’s video interviews and to the jury’s consideration of the reliability of
the interviews.
The
Prosecution’s failure to disclose these matters was caused by the deliberate
failure, in bad faith, of the ICAC to disclose them to the Defence.
[Ground
1 : Non-disclosure]
Ground
2 :
The
judge erred in admitting in evidence the tape recordings of the ICAC’s covert
video and audio surveillance of the A in his Housing Authority office when the
recordings were obtained as a result of breaches of his right to privacy, as a
result, their admission denied the A the right to a fair trial.
[Ground
2 : Breach of right to privacy]
Ground
3 :
Not
proceeded with.
Ground
4 :
The
judge erred in failing to delete those questions and answers in the tape
recording and transcript of A’s first interview where the A exercised his right
of silence, or direct the jury that the A’s failure to respond to accusations
made to him was not evidence against him.
Ground
5 :
The
judge erred in admitting in evidence the tape recording and transcript of A’s
video interview during which the A exercised his right of silence.
Ground
6 :
The
judge erred in his summing-up in commenting upon the A’s failure to tell the
ICAC during any of the interviews that he had a habit of counting his private
money, which was an adverse comment on his right of silence.
[Grounds 4,
5 and 6 : The right to silence]”
Ground 1 : Non-disclosure
18 On
20 November 2001, C I Yang was convicted on his own plea of offences committed on
28 August 2001:
(i) driving a motor vehicle with alcohol concentration in his
breath exceeding the prescribed limit, contrary to section 39A(1) of the Road
Traffic Ordinance Cap. 374 (“RTO”) and (ii) careless driving, contrary to
section 38(1) of the RTO.
For (i), he was fined $5,000 and disqualified from driving for
6 months; for (ii) he was fined $500.
19 The
disciplinary records relevant to this Ground were the following : -
“(2) As
a result of the convictions, on 4 December 2001 the ICAC’s Head of Operations reprimanded
C I Yang with a written warning of dismissal:
‘Having considered the circumstances surrounding
your conviction and sentencing on 20 November 2001 in the Eastern Magistracy for offences of careless
driving and driving a motor vehicle with alcohol concentration above the
prescribed limit, I am of the view that you have failed to live up to the
standards of behaviour expected of an officer of your rank, and have set a poor
example to other officers.
I therefore reprimand you and serve you notice
that, in the event that you misconduct yourself in a similar way or cause the
Commission embarrassment by poor or unacceptable behaviour within three years of
the date of the offences, ie 28 August 2001, serious consideration will be given to terminating
your service with the Commission.’
(3) On
13 September 2003 he was given a verbal warning for failing to exercise
due supervision over subordinate officers in the handling and disclosure of
unused material.”
20
C I Yang’s convictions and disciplinary records had not at any
stage been disclosed to the defence. The
Applicant’s case was that they should have been. Moreover, this non-disclosure was in bad
faith in that the concealment was deliberate.
21 The
Respondent denied that they were under a duty to disclose the convictions, or
that there was bad faith on anyone’s part.
It was contended that the convictions and disciplinary records were
irrelevant to the credibility of C I Yang.
22 Both
the Director of Public Prosecutions in the Statement of Prosecution Policy and
Practice 2002 (“DPP’s Statement”) and the ICAC in the Commission Standing Order
(“the ICAC CSO”) dealt explicitly with the disclosure of previous convictions
and other matters going to the credibility of prosecution witnesses :
-
DPP’s Statement
Paragraph 18.13 provides :
-
“The prosecutor should disclose to the defence
the previous convictions of a prosecution witness. If discreditable conduct has previously been
established against a prosecution witness which might affect the assessment to
be made of him or her as a witness, that should also be disclosed. The safest course for the prosecution is to
make enquiry about a witness’ record and character where his or her credibility
is likely to be a crucial issue in the case.”
The ICAC CSO
Section 8 of Chapter 21
provides : -
“Material to be
disclosed
8.
Without limiting the generality of disclosure principles, the application
of the rule extends to:
a.
material which may affect the credibility of prosecution witnesses, which
includes previous convictions of witnesses…
b. the
obligation in (a) applies equally to ICAC officers. It does not extend to disclosing allegations
of misconduct in other matters, but only to proved misconduct which has resulted
in conviction or disciplinary findings;”
23 From
the evidence of Ms Lau Yuk‑yee Ada, an investigator of the Operations Department of the
ICAC, we gathered that in practice and as a matter of routine, a criminal
records check (EPONICS) would be conducted against all witnesses, and that if
the check revealed any criminal convictions, they would be disclosed to the
defence without any consideration of their relevance. However, no such check would be conducted
against any ICAC officer. In this
particular case, a further exception was made in relation to one other witness,
a Chief Building Services Engineer with the Housing Department. He was omitted because at the time of the
criminal records check, Ms Lau did not have his “HKID number or other
identifying particulars such as date of birth”.
Ms Lau decided not to pursue the matter further after
discussion with another officer “because there was no way a civil servant
occupying such a senior work would have any criminal record, because he would
have gone through considerable vetting before being promoted to the
rank”.
24 As
for criminal record checks on ICAC officers, she said in an affirmation dated
13 September 2005 : ‑
“4.
Regarding the criminal record check on ICAC officers, I recall that until
early 2004, there was no established guidelines laid down for ICAC officers to
check the criminal records of their own colleagues. Moreover, I was under the personal impression
that our officers would not have any criminal record and hence no checking would
be necessary. Therefore, I had not
included into that request any of the ICAC officers who would be called to give
evidence at the trial.”
25
According to Mr Lau Chau Wing, an investigating officer of the ICAC who instructed
Ms Lau to do a criminal records check on the civilian
witnesses, he had never caused a similar check on ICAC officers in his
16 years with the ICAC.
All the ICAC officers who gave evidence explained that that was not done
because they did not believe any serving ICAC officer could have had a
conviction involving dishonesty. This is
what Wong Shiu Cheung, a Principal Investigator of the ICAC, said in
his affirmation dated 9 September 2005 : -
“5. I
have to point out that when AD Godfrey asked me to run the check on the service
record of PI YANG, there were no procedures in place to facilitate
officers of other investigation units to obtain information from L Group for the
purpose of making disclosure to the defence.
Most of them did not then comply or were not in a position to comply with
the relevant Commission Standing Orders (CSO), which was promulgated in
September 2002 and stipulated, inter alia, that:
‘Without limiting the generality of disclosure principles, the
application of the rule extends to :
(a)
material which may affect the credibility of prosecution witnesses, which
includes previous convictions of witnesses: previous inconsistent statements by
a witness (it being for the defence to judge the materiality of the
inconsistency) and disclosable material known to a witness (including an expert
witness);
(b) the
obligation in (a) applies equally to ICAC officers. It does not extend to disclosing allegations
of misconduct in other matters, but only to proved misconduct which has resulted
in conviction or disciplinary finding.’
6.
The non‑compliance of CSO might be attributed to a general presumption
amongst officers that serving ICAC officers would not have any criminal
convictions, hence they would not conduct criminal record check on an officer
prior to him giving evidence in court. They also would not seek information on
an officer’s disciplinary records except in situations where they had received
specific requests for such from the defence.
The reason being that the disciplinary records, though available in the
confidential file of the officer giving evidence or in L Group, are not easily accessible or out of bounds to them
as they might be junior in rank to the officer concerned. I recall that, during the period between
October 2002 and March 2004, I had received no more than three requests for
disciplinary records for the purpose of making disclosure to the
defence.
7. In
March 2004, I was involved in conducting a review of the CSO as
well as the role played by L Group in gathering, maintaining and disseminating the
disciplinary records of officers for the purpose of making disclosure to the
defence. This review was conducted as a
result of allegation made by Mr Andrew LAM, a member of the defence team involved in defending
CHAN Kau-tai in High Court Case No. 333 of 2002, that the prosecution had, prior
to the commencement and during the course of the trial, failed to disclose to
the defence the criminal conviction and disciplinary record of PI YANG.
8.
Consequent to the review, it was decided that:
(a) all
criminal and disciplinary records of officers, including records of disciplinary
action taken by individual supervising officers on their subordinates, would be
centrally maintained in L Group; and that
(b)
L Group would be responsible for conducting checks on all
officers required to give evidence in court and forwarding those information
that are relevant to disclosure to counsel of Department of Justice for
consideration and eventual disclosure to the defence.
9. On
11 October 2004, the Head of Operations issued a Routine Order setting
out the procedures for providing criminal/disciplinary records of ICAC officers
to prosecuting counsel for consideration of disclosure to the defence. I now produce the relevant Routine Order as
exhibit, marked WSC‑1.”
26 The
Routine Order of October 2004 reads as follows : -
“Procedures for providing
disciplinary/criminal records of officers to prosecuting counsel for
consideration of disclosure to the defence
Officers are reminded that they are obliged to
disclose to the defence material which may affect the credibility of prosecution
witnesses, and that the obligation is equally applicable to witnesses who are
ICAC officers (witness officers). In
order to ensure that the material, which includes disciplinary/criminal records
of witness officers, will be made available for possible disclosure to the
defence, the following procedures will be implemented with immediate
effect:
(a)
once a prosecuting counsel has decided on which ICAC officers will be
called to give evidence, the case officer will provide details of the case, the
name of the prosecuting counsel and a list of the witness officers on a computer
generated form (Annex A - available at OPSLAN Form Library - Request/Checking) and
submit it to CI/L3 via his CI and PI;
(b)
CI/L3 or PI/L will forward to the prosecuting counsel a loose minute
folder via SADPP to confirm whether there is in existence any
disciplinary/criminal record that could possibly impact significantly on the
credibility of a witness officer and, where applicable, provide details of the
relevant records;
(c)
the prosecuting counsel will be informed that:-
(i)
the record should not be left on the prosecution file or made accessible
to officers who are of equal or junior rank to the witness officers, and the
record should be returned to L Group via SADPP after it has served its purpose;
(ii)
should he feel any of these records ought to be disclosed, he should make
the disclosure directly to the defence and inform the case officer of the
details of the disclosure; and
(iii) a
record of disclosure should be placed in the loose minute folder mentioned in
(b) above for return to L Group via SADPP; and
(d)
CI/L3 or PI/L will, at the same time, inform the CI or PI of the case
officer and the individual witness officers details of the material that have
been disclosed to the prosecuting counsel.”
27 The
above evidence may explain why prior to the commencement of the trial, no
disclosure was made in relation to C I Yang’s convictions and disciplinary records. But they also show that if the DPP’s Policy
and CSO had been complied with, and in our view they should have been complied
with, in practice they would have resulted in the disclosure of all the
convictions of prosecution witnesses, including ICAC officers.
28 Mr
Zervos for the Respondent, however, contended that in law the duty of disclosure
was more limited. He relied on HKSAR
v Lee Ming Tee [2003]
6 HKCFAR 336 (Lee Ming Tee
(No.2)). That case was not
concerned with the disclosure of criminal convictions as such. It was concerned with a failure to disclose
the fact that an expert witness at the trial had been the subject of a SFC
enquiry and that the expert had resigned as a director of a company after it had
suffered huge losses.
29 In
his survey of authorities on the duty of disclosure, Sir Anthony Mason NPJ when discussing the position in England, referred to
what Steyn LJ said in R v Brown [1994] 1 WLR 1599 :
-
“… the Crown is under a duty to give disclosure
of significant material which may affect the credibility of a prosecution
witness. (Emphasis added.)
In other words, the credibility of a prosecution
witness is relevant for the purpose of the Melvin categories. His Lordship referred to these examples
established by authority :
(1)
the obligation to disclose previous statements of prosecution
witnesses;
(2)
the obligation to disclose a request for reward by a prosecution witness;
and
(3)
the obligation to disclose previous convictions of a prosecution witness.
147.
With reference to the third example, his Lordship referred to the
observation of Cooke P in Wilson v Police [1992] 2 NZLR 533 at p. 537
:
As to the kind of conviction within the scope of
the duty, the test must be whether a reasonable jury or other tribunal of fact
could regard it as tending to shake confidence in the reliability of the
witness.”
30 Sir
Anthony Mason NPJ then went on to say : -
“164.
Fairness to the defendant requires wide disclosure. Striking the appropriate balance between
fairness to the defendant and protecting the public interest in the detection
and punishment of crime is to be achieved not by reducing the scope of the
disclosure rules but by restricting the collateral use of disclosed material
(Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at
p. 218C-D, per Lord Hope of Craighead).
165.
A strong obligation of disclosure will preserve the criminal trial as the
appropriate forum for determining the truth or falsity of criminal
allegations. The Supreme Court of the
United States has recognised the general goal of establishing ‘procedures under
which all criminal defendants are acquitted or convicted on the basis of all the
evidence which exposes the truth’ (United States v Leon 468 US 897 (1984)
at pp. 900-90l, quoting Alderman v United States 394 US 165 (1969) at
p. 175).”
31 He
concluded as follows : -
“170.
The prosecution’s duty is to disclose to the defence relevant material
(including information) which may undermine its case or advance the defence
case. The duty is not limited to the
disclosure of admissible evidence. Information not itself admissible may lead by
a train of inquiry to evidence which is admissible: R v Preston [1994] 2
AC 130 at pp. 163-164, per
Lord Mustill. And
material which is not admissible may be relevant and useful for
cross-examination of a prosecution witness on credit.
171.
The Melvin categories may be
accepted as a broad statement of what, on a sensible appraisal by the
prosecutor, is subject to disclosure. The Melvin formulation and the recognition
that the credibility of a prosecution witness is relevant for the purpose of the
Melvin categories have the
consequence that disclosable material relevant to the cross-examination of a
prosecution witness cannot be restricted to the three instances of disclosable
material relevant to the credibility of a prosecution witness sanctioned by
authority and referred to by Steyn LJ in R v Brown [1994] 1 WLR 1599 at
p. 1607A-C. It extends to other
significant material which a reasonable jury could regard as tending to shake
confidence in the credibility of the witness.”
32 He
went on to hold that other significant material in that case included the fact
that the witness was the subject of a SFC inquiry, and he explained why :
-
“174.
In the usual run of things, it would be correct to say that to establish
that a witness is the subject of a disciplinary inquiry and no more would not
reflect adversely on the credibility of the witness. But cross-examination on the facts underlying
the inquiry could reflect adversely on the credibility of the witness, depending
on what the circumstances and the answers might be. And if the witness is called as an expert
witness and the inquiry is conducted by the relevant professional body in
response to concerns about the professional competence of the witness, this will
raise a doubt about the professional standing and competence of the witness: see
R v Brooks [2002] EWCA Crim 2107.
Also, in some circumstances, there will be the possibility that
disclosure of the existence of the inquiry will enable the defence to pursue a
train of inquiry which will lead to material which will be of advantage to the
defence.
175.
These comments indicate that the proposition that the fact a prosecution
witness is the subject of a disciplinary or other inquiry is not disclosable
cannot be accepted as a universal and all-embracing proposition. Every case must be judged according to its
own particular circumstances. What has
to be kept steadily in mind is that, on credit, only significant material that a
reasonable jury or tribunal of fact could regard as tending to shake confidence
in the reliability of the witness is disclosable and that the answers of the
witness in cross-examination on credibility alone generally cannot be rebutted
by evidence: Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 and HKSAR v
Wong Sau Ming (2003) 6 HKCFAR 135.”
33 On
the basis of the principles established by Lee Ming Tee
(No.2), it is clear that the duty to disclose will apply to
convictions and other matters relating to a witness which a reasonable jury or
other tribunal of fact could regard as tending to shake confidence in the
reliability of that witness. In the
present case, we are of the view that C I Yang’s convictions and disciplinary records were
disclosable.
34 The
credibility of C I Yang was an important issue in the voir dire as well
as at the trial. Mr Zervos made the point that C I Yang’s convictions did not involve any dishonesty on his
part. But as Lord Hope of Craighead said
in R v Brown [1998] AC 367 at 378H : -
“The fact that a witness has previous
convictions, especially for crimes which imply dishonesty or disrespect for the
law, may be of great significance in regard to issues of
credibility.”
So, disrespect for the law may also be of great
significance.
35
Moreover, previous convictions are recognised as a suitable subject for
cross-examination. As
section 15 of the Evidence Ordinance, Cap. 8, shows, a witness may
be questioned as to whether he has been convicted of any indictable offence,
and, on being so questioned, if he either denies or does not admit the fact or
refuses to answer, the conviction can then be proved. Thus, convictions of indictable offences not
only may be the subject of cross-examination, they also are exceptional in the
sense that evidence may be adduced in support of it. It will be remembered that ordinarily,
rebuttal evidence on credibility is not permitted. The offence of drink driving is an indictable
offence although in the present instance it was tried summarily.
36 There
was also the fact that here, Mr Raymond Ho, the solicitor, who attended the
first part of the second interview, in his evidence in the voir dire
proceedings said : ‑
“Now, I think my impression is that he was with
a lot of beer at that time. I can smell
the alcoholic smell of beer coming from a person …”
37
Mr Zervos made the point that in response, Mr Graham Harris,
counsel for the defence, said : -
“Never mind about the beer. How would you describe his
demeanour?”
38 Mr Ho
repeated his evidence before the jury, he said : -
“He may just have finished his dinner and I can
still feel the smell of beer coming from his mouth …”
That was not pursued by Mr Harris.
39
Mr Harris has told us that had he known about C I Yang’s conviction for drink driving so close to the
interviews, he would have pursued the matter.
We have no doubt that he would.
40
Counsel might try to find out, how much and for how long C I Yang had been drinking, before the second interview, which,
it will be recalled, commenced at 10:23 p.m. Depending on
the amount which C I Yang had been drinking, it might or might not have affected
his behaviour and self-control.
41
Mr Zervos contended that driving offences such as the
conviction for careless driving could have no relevance to credibility. We are prepared to accept that sometimes,
such convictions can be irrelevant.
However, surely relevance will depend on the circumstances of the
offence. We provide by way of example
one possibility in the present case. It
is stated in the Brief Facts of Case used in the prosecution of C I Yang : -
“Brief Facts of Case:
At about 2130 hours on 2001-08-28, deft returned
to collect his private car JR 2230 which was parked in the public parking space
(parking meter No. 2766A) at Shing Ping Street near Hip Wo Lane, Happy
Valley. When the deft was driving and
about to leave the parking space with his friend, another private car JC 1130
driven by PWl had stopped behind the deft’s car waiting for the parking
space. The deft reversed his car but was
unaware of PWl’s car. The nearside rear
of the deft’s car crashed into the offside front of PWl’s car. Damage was caused to the point of
impact. The deft provided his
personal particulars to PW1 and got into his car intending to go away. PW1 pursued the deft and proceeded to the
front of the deft’s car in order to stop the deft’s car. In the meantime, the deft was unaware of the
presence of PW1 and started off his car.
PW1’s right knee was hit but did not sustain injury. Report was made.”
42 As is
apparent, part of the paragraph has been crossed out, presumably, for the
purpose of C I Yang’s plea. But as
Sir Anthony Mason NPJ in Lee Ming Tee (No.2) said at 174 :
-
“But cross‑examination on the facts underlying
the inquiry could reflect adversely on the credibility of the witness, depending
on what the circumstances and the answers might be.”
43 If
C I Yang did, indeed, drive off, without noticing PW1 who went
“to the front of the defendant’s car in order to stop the defendant’s car …”, we
believe this may throw light on C I Yang’s possible behaviour after
drinking. We are of the view that C I
Yang’s behaviour after drinking and after being involved in a minor traffic
accident might provide a jury with an insight into C I Yang’s character and
therefore might possibly affect their assessment of his credibility and
reliability as a witness. This is quite
apart from the fact that C I Yang, as a disciplined officer, chose to drive
after drinking. Had timely disclosure been made, the defence could have
investigated all these aspects.
44 That
being the case, Mr Zervos’ submission that traffic convictions such as for
careless driving are not disclosable “cannot be accepted as a universal and
all-embracing proposition. Every case
must be judged according to its own circumstances” : Lee Ming Tee (No. 2) (paragraph 175).
It is unsound to determine the relevance of a conviction without
considering the circumstances of it. For
the prosecution to discharge its duty properly, it must therefore carefully
consider the circumstances of the offence before it decides that a conviction is
irrelevant to credibility. Selective
disclosure carries with it the risk of erring on the wrong side of what is
required.
45
However, in our system, the prosecution will not know in advance just
what the defence will be. Accordingly,
in deciding the type of material to which access should be given to an accused,
the prosecution is required to err on the side of caution. Although disclosure should only be of
material relevant to an ‘issue in the case’, this term should be construed
widely and includes in every case the issue of the credibility of witnesses :
see R
v Brown at 376G-377D; Lee Ming Tee (No.2) at 384C‑D
(paragraph 146). If there is to be any
restriction, this should be left to the court restricting the use of material
rather than its disclosure. We repeat
here what Sir Anthony Mason NPJ said in Lee Ming Tee (No.2) at 389G‑H
(paragraph 164) : ‑
“164.
Fairness to the defendant requires wide disclosure. Striking the appropriate balance between
fairness to the defendant and protecting the public interest in the detection
and punishment of crime is to be achieved not by reducing the scope of the
disclosure rules but by restricting the collateral use of disclosed material
(Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at
p. 218C-D, per Lord Hope of Craighead).”
Where a dispute arises
as to disclosable material, it is for the court to decide the question, not the
prosecution : at 386A‑B (paragraph 152).
46 We
believe that this requirement will, in practice, result, in the disclosure of
all convictions of witnesses whose credibility might be in issue, certainly in
cases where the accused is charged with serious offences. That may be the reason why, under the DPP’s
Policy as well as the ICAC CSO, the practice is one of blanket disclosure. This is consistent with what was said by the
Court of Final Appeal in Ching Kwok Yin v HKSAR (2000) 3 HKCFAR 387 at
390H‑I : ‑
“It
is common ground that there is a duty on the prosecution to disclose to the
defence details of the criminal convictions of any of its witnesses if it knows
of them and that a breach of that duty is a material irregularity.”
47 It is
noted that in New Zealand, the Court of Appeal in Wilson v Police [1992] 2 NZLR 533 (a case referred to in
Lee Ming Tee (No.2)), held that at 542 : -
“(i)
Before all defended trials, whether on indictment or summary, the
prosecution should as a general rule notify the defence of any conviction known
to the prosecution of a proposed witness whose credibility is likely to be in
issue, if that conviction could reasonably be seen to affect credibility. … If
the authority is in doubt whether a conviction should be disclosed, counsel’s
advice should be taken.
(ii) In
the event of a decision not to disclose any conviction on the grounds, for
instance, that it does not bear on credibility likely to be in issue or that
interference with the witness is feared, the prosecution should notify the
defence in general terms that there is a conviction which it is not considered
necessary or appropriate to disclose.
Thus, the defence, if desirous of testing the point, will have an
opportunity of applying for a ruling to a Judge in Chambers, in the Court where
the trial is pending.”
48 The
reason for (ii) is the recognition that, “however sound the intentions and
policy of senior policy administration, implementation of (the policy to
disclose only those convictions which could be material to the issue of
credibility) is not always reliable” : at 542.
49 In
Wilson v Police, the practical solution found to ensure the faithful
implementation of this duty, was to require the prosecution to inform the
defence in the event that disclosure of a conviction was not considered
necessary, so that in the event of dispute, the court could decide the
issue.
50 For
the above reasons, we believe the better practice to be followed is the
disclosure of previous convictions of all prosecution witnesses. However, we accept that convictions which are
clearly irrelevant need not, at least in theory, be disclosed, but if the
prosecution should decide to withhold disclosure of any conviction, it should
inform the defence of that fact, so that, if necessary, the matter could be
decided by the court.
51
Finally in this review of the applicable legal principles, we would
reiterate that the duty of full disclosure (referred to by Lord Bingham of
Cornhill in R v H [2004] 2 AC 134 as the “golden rule”) is one in which
the prosecution ought to be proactive in at least making conscientious inquiries
about the previous convictions of material witnesses. As Lord Hope of Craighead put it in R v
Brown at 377E : -
“The
investigation process will also require an inquiry into material which may
affect the credibility of potential Crown witnesses.”
The prosecution, in this context, includes the
investigating authorities : ‑ see Lee Ming Tee
(No.2) at 387H‑391D.
52 We
now return to the Procedures adopted in 2004 by the ICAC. We have heard no submissions on the adequacy
of the new procedures and we must not be taken to have endorsed them in any
way. An ICAC officer should not be
treated more favourably than any other prosecution witness. In particular, we have reservation that it is
right that the duty of disclosure should be confined to material “that could
possibly impact significantly on the
credibility of a witness officer …” (our emphasis.) That is not the correct test and probably
represents a misreading of paragraph 175 of the judgment of Sir Anthony Mason NPJ in
Lee Ming Tee
(No.2) (see paragraph 32 above) in the
reference to “significant material”. No doubt the ICAC
will review the 2004 Procedures having regard to our judgment.
53 We
turn to the disciplinary records of C I Yang. The ICAC CSO
as well as the DPP’s Statement correctly recognise that materials requiring
disclosure may include disciplinary findings.
However, having regard to Lee Ming Tee (No.2), they do not seem to
have gone far enough. As noted, the duty
of disclosure might extend to the disclosure of the existence of an inquiry
because that “will enable the defence to pursue a train of enquiry which will
lead to material which will be of advantage to the defence”. see paragraph 174 of the judgment (paragraph 32
above).
54 We
are of the view that both of the disciplinary reprimands of C I Yang were
relevant. The first, which followed from
the convictions, is relevant because it revealed the serious view which ICAC
took of a conviction of drink driving.
Presumably that was known to ICAC officers including C I Yang, so the fact that C I Yang committed the offence notwithstanding the
serious consequence to his career is something which a reasonable jury might
regard as relevant to their assessment of the character and reliability of
C I Yang.
55 As
for the other reprimand, insofar as it might throw light on C I Yang’s attitude
towards compliance with measures designed to ensure fairness to a suspect, it is
also relevant to the jury’s assessment of his character.
56 The
defence has not complained about the non-disclosure of the police investigation
into the conduct of C I Yang in 2002 which did not result in a prosecution. We express no view on whether such material
was disclosable.
Consequence of
non-disclosure
57 In
order to decide the consequences of the failure to disclose, it would be helpful
to consider the principles which give rise to the duty to disclose.
58 In
Lee Ming Tee (No.2), the Court of Final Appeal commented on the
principles which gave rise to the duty to disclose : -
“155.
The principles relating to disclosure articulated by the English courts
are based on the defendant’s common law right to a fair trial and on the
principle of openness. It is, therefore,
appropriate that this Court should have regard to them in ascertaining the
common law of Hong Kong.”
59 His
Lordship identified other possible foundations for these principles in Article
39 of the Basic Law and Article 11(2) of the Bill of Rights. It was, however, unnecessary for the Court of
Final Appeal to consider them. It was
“acknowledged by Mr McCoy SC that the Basic Law and the Bill of Rights do not
take the duty of disclosure further than it is taken by the common
law” :
see 387G (paragraph 157).
60
Mr Blanchflower SC, who appeared for the Applicant, referred us to 2 recent
decisions of the Privy Council in Scottish appeals : ‑
(1)
Holland v HM Advocate (Devolution) [2005] SLT 563. The accused appealed against his conviction
in respect of inter alia, 2 charges of assault and robbery on the ground
that his rights under Article 6 of the European Convention on Human Rights had
been infringed since the Crown had relied on dock identification evidence and
had failed to disclose certain information to the defence. The failure to disclose related to
information about X and Y, who were assaulted during a robbery and about a
police officer’s remark to the latter after the identification parade that she
had not done too well in that parade.
(2)
Sinclair v HM Advocate (Devolution) [2005] SLT 563. This involved an eye witness whose evidence
departed from 2 statements given by her to the police. The statements had not been disclosed to the
defence. The defendant argued that he
had been denied a fair trial as a result.
61
Mr Zervos submitted that these decisions had to be understood
against the background of Scots law or practice regarding the prosecution’s duty
of disclosure.
62
However, in our view, these cases have shed further light on the
principles underlying the duty of disclosure.
In Holland, Lord Rodger of Earlsferry explained, with the
concurrence of the other Law Lords, why the right to a fair trial under Article
6(1) of the European Convention on Human Rights required disclosure as follows :
-
“[69]
More recently, under the influence of art 6(1) of the Convention, the
weaknesses of this approach have become apparent. In Maan, Petr the accused was charged
on indictment with assault. He lodged a
special defence of self defence and gave notice of an intention to attack the
character of the complainer and the other two Crown witnesses. He sought to recover the previous convictions
of the complainer and these witnesses, as well as those relating to a third
witness who had been cited for the defence.
The Crown resisted the motion and relied on HM Advocate v
Ashrif. Adopting the general
approach in McLeod v HM Advocate (No 2), Lord Macfadyen declined to
follow Ashrif and ordered production of the previous convictions of all
four witnesses. He said, at 2001 SCCR,
p 187; 2001 SLT, p 416, para 27 : ‘In my opinion, provided the witnesses’
previous convictions are relevant to a legitimate attack on character or to
their credibility, the material sought would plainly be relevant to his
defence. It is therefore material which
the petitioner is prima facie entitled to have disclosed to him. Moreover, in my
view he is prima facie entitled to have it disclosed to him in advance of the
trial. His right is to have disclosed to him material necessary for the proper
preparation as well as the proper presentation of his defence. Possession of
information about the witnesses’ relevant criminal records would enable the
petitioner’s counsel or solicitor to make proper preparation for the
cross-examination of the witnesses in question. Lack of that information in
advance would not wholly preclude the contemplated lines of cross-examination,
but would make embarking on them a much more uncertain course. Matters of
credibility and character depend very much on the impressions made on the jury,
and cross-examination might well be less effective if embarked upon without
knowledge of the detail of the witnesses’ records. An impression unfairly
unfavourable to the petitioner might be made on the jury if cross-examination
were embarked upon on his behalf, appeared to be unsuccessful, then was followed
by re-examination which showed that the cross-examiner had been
ill-informed.’
[70]
As Lord Macfadyen shows, it is in principle wrong that at trial the
prosecutor should have official information about witnesses’ previous
convictions which has been withheld from the defence. The presentation of the defence case is
liable to be less effective if the accused’s counsel and agents do not have the
information in advance of the trial.
Reflecting a shift in the position of the Crown, in presenting his
argument before the board the advocate depute did not seek to justify this
situation by reference to the supposed practical difficulties identified in
Ashrif - which, it is fair to say, have not been experienced in other
jurisdictions where previous convictions have long been supplied to the defence.
Nor did he advance any other reason why the public interest required that this
information should be withheld.
…
[72]
Although it is open to the defence to apply to the court for an order for
production, the scheme envisaged by the Book of Regulations places
procurators fiscal and Crown Counsel in the invidious position of having to
judge the relevance of previous convictions to a defence, the lines of which the
accused’s representatives are generally under no obligation to reveal. In
reality, however, the scheme is more deeply flawed since it is obvious that a
reasonably competent defence agent or counsel, considering how to approach the
examination or cross examination of a witness, would wish to know whether the
witness had any previous convictions and, if so, their nature. Indeed it is
precisely the kind of thing he would want to know. What use, if any, the agent
or counsel chooses to make of the information is a matter for him and he may
well not be able to decide until he actually has it. But, at the very least, the
information will help in assessing the strengths and weaknesses of the witness.
Therefore, information about the previous convictions of any witnesses to be led
at the trial ‘would be likely to be of material assistance to the proper
preparation or presentation of the accused’s defence’ Under art 6(1) the
accused’s agents and counsel are accordingly entitled to have that information
disclosed so that they can prepare his defence. Since in this way both sides
will have access to this information at trial, the accused’s right to equality
of arms will be respected. The observations to the contrary effect in HM
Advocate v Ashrif should not be followed.”
63 In
Sinclair, Lord Hope of Craighead, with whose judgment the other Law Lords
agreed, emphasised at 560 (paragraph 33) that : -
“… First, it is a fundamental aspect of the
accused’s right to a fair trial that these should be on adversarial procedure in
which there is equality of arms between the prosecution and the defence
…”
64 Thus,
the right to material disclosure is an aspect of fair trial. Fair trial as well as equality of arms (in
the sense meant in Sinclair at 560 (paragraph 33)) are guaranteed by
Article 10 of the Hong Kong Bill of Rights and protected by the common law. It is unnecessary in this context to consider
whether, and if so, to what extent, common law has been extended by
Article 10.
65 What
then should be the consequence of the non-disclosure?
66 In
Ching Kwok Yin, the
defendant’s conviction of unlawful and malicious wounding was set aside as
unsafe because of the non‑disclosure of the victim’s previous conviction for
“breaching condition of stay” and “unlawful use of electricity”. Sir Alan Huggins NPJ said at 391E‑F : -
“The error would only have been immaterial if the
Magistrate would undoubtedly have entered the same verdict had he known of
Mr Wong’s previous convictions. In our
view it cannot be put any higher than that he might have entered the same
verdict. The conviction was therefore
unsafe, and an unsafe conviction is a miscarriage of justice.”
67
Moreover, it could be said that because of the non‑disclosure the
Applicant has not had a fair trial. That
is another reason why there was, in our view, an irregularity at trial. But must the convictions be set aside? Mr Zervos argued not. It was submitted that the proviso should be
applied and in any event, that the non‑disclosure had no relevance to count one.
We deal with this latter point
first.
Count One
68
Mr Zervos has submitted that since the credibility of C I Yang was irrelevant to the first count, the fact
of non-disclosure should not affect the Applicant’s conviction on that
count. This count related to the alleged
acceptance by the Applicant of some $1,500,000 from one Lai Sai‑sang as an inducement
to favour the dealings between some other persons and the government regarding
the installation of electrical materials in a building project at Wong Tai
Sin.
69 Mr Lai
and his brother Yan‑sang were concerned with counts 1, 2, 3, 4, 12 and 16, and they gave evidence at the
trial. As noted above, the Applicant was
acquitted of counts 2, 3 and 4 but convicted of 1, 12 and 16. In the third interview, the Applicant had
made incriminating admissions regarding counts 12 and 16. It is
correct that the credibility of C I Yang had no direct bearing on count 1. However, the
credibility of the Applicant was of vital importance to this count. His credibility on count 1 might have been affected by the view which the
jury took of his evidence in relation to counts 12 and 16. His
evidence on counts 12 and 16 in turn might have been affected by the third
interview.
70 So,
we cannot regard the verdict on count 1 as safe and satisfactory having regard
to our views on non-disclosure.
Proviso
71
Mr Zervos has submitted that this is a case where we might
apply the proviso.
72 This
is not an appropriate case for the application of the proviso. This is not a case where we are able to say
that had the proper disclosure been made, so that C I Yang could have been cross-examined on the undisclosed
material, the jury would inevitably have convicted the Applicant : see Grey v The Queen [2001] 75 ALJR 1708.
C I Yang’s credibility
was an important issue. In our view, the
undisclosed material might have made a material impact on the jury’s assessment
of credibility. The application of the
proviso was therefore inappropriate :
see Yuen Kwai Choi v HKSAR [2003] 6 HKCFAR
113,
133A‑D (paragraph 55).
73 We also note that this is a case where the
jury took 3 days to reach their verdicts, had acquitted the Applicant on 3
counts, and were not unanimous when they convicted him on 2 of the
counts.
Bad faith
74 We
turn to consider the issue of bad faith. It was said that where this could be
demonstrated, the court might then even refuse to order a retrial and
effectively put a stop to the prosecution of the Applicant.
75 We do
not accept Mr Blanchflower’s suggestion that there was a deliberate decision not
to conduct a search on C I Yang’s criminal records in order to suppress that fact from
the defence. Although the convictions
were disclosable and ought to have been disclosed, we are of the view that no
search had been made because at that time it was not the practice to do
so.
76
Shortly after the Applicant’s conviction, by letter dated
16 December 2003, Andrew Lam & Co, wrote to the Head of Operations, ICAC as
follows : -
“It had recently come to our attention that Mr.
Eric Yang (PW4) had been convicted of a drunk driving offence. Please confirm
the information we received is correct and provide details thereof before the
close of business of today.”
77 The
confirmation was given by letter of the same date signed by Mr Ng Ping Kwok for Head of Operations.
78
Andrew Lam & Co., in their second letter dated 16 December 2003 stated : -
“… kindly let us know the rationale behind your
concealing Mr Yang’s past criminal conviction from the
defence.”
79 The
reply to the second letter was written by Mr I C McWalters, Senior Assistant Director of Public
Prosecutions, for and on behalf of the Secretary for Justice and was in the
following terms : -
“Your second letter of 16th December 2003 has been referred to
me for reply. I am instructed by Mr McNamara that he believes he informed your
counsel, Mr G Harris, of Mr Yang's conviction. Furthermore I understand that Mr Harris
would have been aware of it as he had been engaged by Mr Yang to provide him
with legal advice at the time that he was charged. However I am of the very
strong view that it would have been perfectly proper for the prosecution not to
have disclosed this matter to you. The conviction had no relevance to an issue
in the case. The only basis upon which it could be claimed to have relevance
would be to Mr Yang’s credibility. But not every conviction will impact
upon a person’s credibility as a witness and I do not accept that his conviction
for drink driving is relevant and disclosable.”
80 It is
clear from the affidavit of Mr McWalters and the evidence of Mr Tong Wing Tak, Eric (a chief
investigator of the ICAC who was with Mr McNamara at the trial) and Mr
Ng Ping Kwok (a principal investigator of the ICAC), that Mr McWalters’ letter was written after a meeting between
them. This is what Mr McWalters said in his affidavit of 7 December 2005 referring to that meeting : -
“8.
Having heard what Mr Tong had said I decided I should speak to Mr
McNamara. In the presence of the ICAC officers I telephoned him and informed him
of the correspondence from Andrew Lam & Co. Mr McNamara confirmed that the ICAC had told him of
Mr Yang’s conviction and asserted that he had informed
Mr Harris of it. At the time Mr McNamara gave no indication of being uncertain in respect
of either matter.”
81 To
complete the picture, it is necessary to set out the 16 December 2003 letter from Mr Harris to Mr McNamara, Mr McNamara’s letter of 17 December 2003 to
Mr McWalters, and Mr McWalters letter of 17 December 2003 to Andrew Lam &
Co.
: -
(1) 16
December 2003 letter from Mr Harris to Mr McNamara : -
“Dear John,
HKSAR -v- CHAN Kau
Tai
Further to our telephone conversation of this
evening, I write to confirm my recollection of events concerning Eric Yang and
my request to you for disclosure with specific reference to earlier complaints
directed against Mr. Yang and any earlier investigations into his conduct.
As I remember it, you took me to one side prior
to Yang’s testimony in the voire dire and told me in terms that Yang had been
the subject of an investigation which was unrelated and concluded in 2002 with
no adverse findings. I have no recollection at all of any mention of a prior
criminal conviction for drinking and driving. Had I been aware of this, Raymond
Ho’s evidence as to the smell of alcohol on Yang’s breath would have assumed a
greater significance than it did and would have triggered a recollection to
specific earlier disclosure.
I am now told that in about November 2001, I was
asked to advise Eric Yang as Defence Counsel in relation to the matter. I have
to tell you and I hope you will accept this, that this had completely escaped my
memory and even now 1 have no recollection of having advised Mr. Yang.
Apparently, in the event I did not represent him in court due to other
commitments.
I place these matters on record in the event
that there is later criticism directed against either of us as, understandably,
Andrew Lam is seriously concerned that there may have been material
non-disclosure affecting Yang’s credibility.
Yours,
Graham Harris
cc.
Andrew Lam
Ian McWalters”
(2) Mr
McNamara’s letter to Mr McWalters of 17 December 2003 : -
“Dear Ian,
Since you rang me yesterday I have given
this matter deep thought and have spoken to Graham Harris. My recollection is
that Graham asked me if Eric Yang had been the subject of an internal
investigation by ICAC. I made enquiries of Eric Tong and was told there had been
some sort of investigation, but no adverse result had occurred. I passed this
information on to Graham in confidence.
I now do not believe that I was aware
that Yang had been convicted of a drink driving offence. Although I do not think
such a conviction was remotely relevant, I would have let Graham know had I
known. The whole trial was conducted by
me in an open and honest manner. On many occasions Graham asked me for
information, and on every occasion I supplied what I knew or found out, whether
it was strictly disclosurable or not. It follows that if I did know of the
conviction, I would not have kept it from Graham. But, as I said, I have no
recollection about this.
I am taking the liberty of copying this
letter to Graham Harris whom I trust absolutely.
When you reply to Andrew Lam you might
let him know that I bitterly resent the implications contained in his
letter.
Regards,
John McNamara
cc:
Graham Harris”
(3) Mr
McWalters’ letter of 17 December 2003 to Andrew Lam & Co. : -
“Dear Sir,
Re: HCCC 333 of 2002
HKSAR v Chan
Kau-tai
I refer to my letter of 16th
December2003 and am writing to inform you that, on further reflection and after
talking to Mr Harris, Mr McNamara does not now believe that he informed Mr
Harris that Mr Yang had been convicted of a drink driving offence. He was aware
of another matter in relation to Mr Yang that he had communicated to Mr Harris
and he thinks that he may have been confusing this matter with Mr Yang’s drink
driving offence when he informed me yesterday that he believed that he had told
Mr Harris of the drink driving conviction. This misunderstanding is regrettable
but is solely due to an imperfect recollection. There has been no intent to
mislead you by he or I in this matter and we both deeply resent the implication
in your letter of today’s date regarding our integrity.
I should say that as trial counsel Mr
McNamara shares wholeheartedly the view that I expressed to you in my letter
that this prior conviction of Mr Yang is not remotely relevant to any issue in
the case.
Yours faithfully,
(I C McWalters)
Senior Assistant Director of Public Prosecutions
for and on behalf of the
Secretary for Justice
cc Mr G
Harris
Mr J McNamara
Commissioner of ICAC (Attn: Mr Eric
Tong)”
82 We
have heard oral evidence from, Messrs Harris, McNamara, Tong, Ng,
Wong Shiu Cheung, Tso Wai Yan and Lau Chau Wing, Nelson and Ms Lau Yuk Yee, Ada.
83 The
evidence of Mr Harris was that shortly before C I Yang testified in the voir dire, (C I Yang’s evidence commenced on 21 October 2001), he made a specific request to Mr McNamara,
“for full disclosure in relation to any known complaints of misconduct made
against Mr Yang and for access to his Confidential Personal
File”. This is what Mr Harris said in his affidavit dated
18 November 2004 : -
“5. …
This request was unusual and I made it as part of my duty as defence counsel
because I had express instructions from my solicitor that he had ‘intelligence’
to the effect that Mr Yang had been the subject of complaints of misconduct and
that adverse findings against him had been made in respect of such
complaints. I informed Mr McNamara, on a counsel to counsel basis, that I
had these instructions and that this was not some mischievous fishing
exercise.
6. My
request for access to the Confidential Personal File of Mr Yang was declined politely but firmly by Mr.
McNamara. He gave me an assurance that
he would make proper inquiries of the ICAC and would let me know in the event
that anything of the kind suggested was revealed by such inquiry. I trusted him without reservation.
7.
Soon after my request for disclosure Mr McNamara asked me to join him in a consultation room
outside court and told me privately that proper inquiries indicated that my
‘intelligence’ was unreliable. The only matter revealed to him by the ICAC was
that there had been a complaint about Mr Yang some 2 years ago. The complaint had been fully investigated and
Mr Yang had been completely cleared of any wrongdoing. I
accepted what Mr McNamara told me without further question.”
84
Mr Harris’ evidence was supported by Mr McNamara and not disputed by the prosecution. Mr McNamara said in his affidavit dated 26 January 2005 : -
“4. I
cannot now recall precisely when, but at some time before Mr Yang concluded his
evidence, I was approached by Mr Harris who told me that his instructing
solicitor had informed him that he believed that Mr Yang may have been the
subject of an ICAC internal investigation. Mr Harris asked me to look into this
allegation and inform him of the results of my enquiries. I cannot now recall
whether Mr Harris also asked to see Mr Yang’s confidential personal
file or of any response I may have made to such a request. However I accept that
Mr Harris’ recollection of this conversation may be better than mine and that
such a request may have been made. I then spoke to my instructing officer,
Mr Tong Wing‑tak Eric, Chief Investigator of the ICAC, and told him
of my conversation with Mr Harris. He expressed no knowledge of an internal
investigation of Mr Yang but told me he would make enquiries and get back to
me. Subsequently, I believe the next day, I was informed by Mr Tong that there had indeed been an ICAC internal
investigation of Mr Yang but that nothing had come of it. I passed this
information onto Mr Harris who did not pursue the matter any
further.
5. I
have since become aware that Mr Yang has been convicted of driving offences and I am asked
for my recollection of these convictions at the time when I prosecuted the
Appellant. I can say quite definitely that Mr Harris never mentioned them to me or raised any issue as to
Eric Yang having a criminal conviction. I cannot say with the
same certainty that Mr Tong did not inform me of these convictions but I have no
recollection of him doing so. It is my belief that had Mr Tong done so I would have informed Mr Harris of them.”
85
Notwithstanding his uncertainty deposed to in his affidavit, Mr McNamara
was emphathic in his oral evidence that he did not believe Mr Tong had told him that C I Yang had any previous conviction.
86
However, Mr McNamara’s evidence was directly contradicted by the
evidence of Mr Tong and Mr Lau.
According to Mr Tong in his first affirmation dated 7 January 2005, at the
conclusion of the fourth day of trial (23 October 2003) : -
“3. … I
together with officer LAU had a conference with Principal Investigator NG
Ping-kwok (“Mr. NG”) in my office. On that occasion I thought of two issues
concerning officer YANG that previously came to my knowledge from hearsay, and I
raised them for discussion. First, officer YANG was interviewed by the police as
a witness in relation to material non-disclosure in a District Court trial,
which was handled by his team of officers. Second, officer YANG was convicted in
2001 of an offence of drink driving on his own plea. Mr NG directed that the
matters should be discussed with Mr John McNamara, the prosecuting counsel, as
to materiality.
4. The
next day, 24 October 2003, officer YANG’s evidence continued. At nearly the end
of the morning break I had a chance to get hold of Mr McNamara and spoke to him
outside the court room about the police investigation that involved officer
YANG. Officer LAU was also present. Mr
McNamara was quick to say that he had been aware of that and already had some
discussions with Mr Graham Harris, the defence counsel. From his answer, I got
an impression that Mr McNamara had been asked about the matter previously by Mr
Harris.
5. As
the proceedings were about to resume, I together with Mr McNamara and officer
LAU went in the court room. After he sat down at the bar table, I further told
Mr McNamara about officer YANG’s drink driving conviction.
Mr McNamara casually said words to the effect that the
conviction was not relevant, hence not disclosable, which I totally agreed.
These happenings are still clear in my mind because I remember having looked and
checked if officer YANG had returned to the court room before I went up to speak
to Mr McNamara at the bar table.”
His evidence was supported by Mr Lau as well as
Mr Ng.
87
Whilst we do not doubt that Mr McNamara has given evidence according to
the best of his recollection, we do not believe we can act on his evidence. We perhaps need only refer to his mistaken
recollection on 16 December 2003 when he confirmed to Mr McWalters that he had been told C I Yang’s previous conviction of drink driving and that he in
turn told Mr Harris. We have not
been provided with any reason as to why Mr McNamera said what he did initially to Mr McWalters. It may be that Mr McNamera’s memory on this
aspect was not distinct; hardly surprising in circumstances where, even before
us, he was maintaining that C I Yang’s previous convictions were totally
irrelevant. We see no reason
in these
circumstances not to accept the
evidence of Mr Tong, Mr Lau and Mr Ng.
88 That
being the case, we are satisfied that there was no deliberate attempt on the
part of Mr Tong, Mr Lau Chau Wing or Mr Ng to conceal the previous conviction of C I Yang.
89 We
should add that Mr Blanchflower made the point that it was not true that ICAC
officers would not have criminal convictions and pointed to the well known and
publicized fact that the late Assistant Director A A Godfrey had been convicted of drink driving. Accordingly, he cross-examined the ICAC
officers on their evidence that it had not occurred to them that ICAC officers
might have criminal convictions. In this
regard, he also relied on the fact that another ICAC officer had been convicted
of drink driving in December 1999, and that according to an internal minute of
the ICAC, M24, this other incident “although not reported in the media, his case
was widely known among officers”. Ms Lau
was not aware of either conviction but Mr Tong, Mr Ng and Mr Wong were aware of them. However, since they did not regard traffic
convictions, including drink driving convictions, as involving dishonesty they
did not regard such convictions as relevant to credibility.
90 We
ought also mention that at one time, though it seems only informally,
Mr Harris had advised C I Yang in relation to his then pending prosecution. Mr Harris told us that he had a meeting with C I Yang after an introduction by Mr Godfrey, and that by the time of the Applicant’s
trial he had forgotten about it.
91
According to Mr Tong, he was made aware of that fact by Mr Godfrey. This is what Mr Tong said in his affirmation of 12 September 2005 : -
“5.
During the voir dire, I had a casual conversation with the defence
counsel Mr. Harris during one of the morning breaks. Mr. Harris asked me how
long officer YANG had been serving in the ICAC, saying that he did not recognise
the officer at all. I replied that officer YANG joined the ICAC in the early
1980’s, and commented that it was strange that he (Mr. Harris) should have no
knowledge of the officer. I made this comment because to my understanding
Mr. Harris was familiar with a number of ICAC officers,
particularly those with long service.
6.
That same day after I returned to the office Mr. Godfrey came to see me, something he in fact often did
throughout the trial period. Mr. Godfrey would chat with me about the case generally. On
that particular occasion, I told Mr. Godfrey about Mr. Harris’ remark of not recognising officer YANG that I
considered strange. Mr. Godfrey stated that he indeed was surprised, for he
actually recommended Mr. Harris to officer YANG for legal advice in relation to the
latter's drink driving case.”
This explains why in Mr McWalter’s letter of 16 December 2003 there was a reference to Mr Harris having once advised C I Yang.
Mr Harris was unable to recall the conversation with
Mr Tong about C I Yang but he could not say there was no such
conversation.
92 We do
not believe Mr Tong (the officer on the whole targeted by Mr Blanchflower as being
responsible for the non‑disclosure) had any reason to wish to conceal C I Yang’s convictions. Apart from anything else, he could not be
sure that Mr Harris had forgotten about his having acted for C I Yang in
relation to the drink driving prosecution. Furthermore, although we are of the view that in fairness the convictions
had to be disclosed and that they were relevant to credibility, they were not of
such a nature as to provide a sufficient inducement to conceal deliberately in
the circumstances, involving as it would a conspiracy to conceal among the
relevant ICAC officers and the risk of a charge of perverting the course of
public justice.
93
Another curious feature was disclosed by Mr Wong Shiu Cheung. This is
what he said in his affirmation dated 9 September 2005 : -
“4. I
recall that sometime prior to the commencement of the trial of CHAN Kau-tai on
20 October 2003, the late Assistant Director A.A. Godfrey (AD Godfrey) had asked
me to run a check on the service record of PI YANG, who was to give evidence at
the trial. He told me that he required the information for the purpose of
disclosure and that he had to disclose to the defence any information that might
impact upon PI YANG’s credibility as a witness. I subsequently informed AD
Godfrey by telephone the above convictions and the disciplinary record of PI
YANG. In the process, I had briefed AD Godfrey on the background of the police
investigation on PI YANG. I also told him that the police had obtained witness
statements from PI YANG and had decided, upon legal advice, to take no further
action on the case in July 2003.”
94
Although Mr Godfrey attended the trial briefly every day, and that
occasionally Mr McNamara would speak with him, Mr McNamara has told us that Mr Godfrey did not speak to him about C I Yang’s criminal or disciplinary records. Nor had Mr Godfrey spoken to any of the other ICAC officers involved
in the trial.
95
Mr Godfrey was already in poor health in October 2003, and he passed away in early
January 2004. From the
evidence of Mr Wong, it appears that Mr Godfrey correctly recognized that he required the
information for the purpose of disclosure.
We do not know why no disclosure was eventually made.
96
Although we have come to the conclusion that there was no bad faith, we
are disturbed that the question relating to disclosure should have been handled
in such a haphazard manner. The fact
that no proper record was made of any decision to withhold disclosure
(presumably Mr Godfrey eventually decided against disclosure), underlined the
desirability that if disclosure of any conviction or disciplinary proceedings
were to be withheld, the defence should be informed.
97 For
the above reasons, we were satisfied that although a material irregularity had
taken place owing to the non‑disclosure of relevant material, the proper course
to take was to order a retrial on this basis alone. There was no proper basis effectively to put
a halt to the prosecution of the Applicant.
Ground 2 : Breach of right to
privacy
98. As
mentioned above, some edited portions of tapes, being the covert audio and
visual surveillance of the Applicant in his office between 7 March 2001 and
3 August 2001 constituted important evidence against him at trial. Investigations on the Applicant by the ICAC
had begun in or about June 2000 and he was subjected to physical surveillance
later that year (about November 2000). On 27 February 2001, the Director of Housing
(Mr Anthony Miller) consented in writing to the installation by the ICAC of
audio/visual surveillance devices in the Applicant’s office, which was located
at 5/F, Block 3, Housing Authority Headquarters, Fat Kwong Street, Homantin,
Kowloon. Audio/visual devices were then
installed in the ceiling of the Applicant’s office and recording commenced on
7 March 2001 lasting until 3 August 2001. There were altogether 859 tapes. Even the edited portions of the tapes
prepared for trial contained some six hours of material, comprising over
1,000 pages of transcripts. The tapes
recorded the Applicant’s activities and his telephone conversations in his
office over the said period although as far as the telephone conversations were
concerned, only what the Applicant said was recorded (there were no listening
devices installed in his telephone). It
is not necessary for us to go over what was contained in the tapes. Suffice it to say that they include
recordings of activities that were used by the prosecution to support the
charges against the Applicant. We
highlight only one aspect (for this is relevant to Ground 6 of the Grounds of
Appeal) : the Applicant was seen counting banknotes in his office on a number of
occasions. At trial, he gave an
explanation for this and it is the Judge’s comments on this aspect that form the
subject matter of Ground 6 of the Grounds of Appeal.
99. At the
heart of Ground 2 of the Grounds of Appeal was the question of the admissibility
of the evidence obtained from the covert surveillance of the Applicant. Put succinctly, the precise legal question for
determination by the Court is as follows : where a constitutional right (in this
case, the right of privacy) is infringed, what is the status of any evidence
that has been obtained in consequence of this breach? This is a question that goes to the
admissibility of such evidence at trial.
100. In
resolving the critical question identified in the previous paragraph, we think
it necessary first to explain the nature of the right of privacy.
101. Here the
relevant provisions are Article 30 of the Basic Law and Article 17 of the
International Covenant on Civil and Political Rights (“ICCPR”) (the latter being
applicable in Hong Kong both by reason of Article 39 of the Basic Law and also
this being Article 14 of the Hong Kong Bill of Rights) : ‑
Basic Law
“Article 30
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.
Article 39
The provisions of the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, and
international labour conventions as applied to Hong Kong shall remain in force
and shall be implemented through the laws of the Hong Kong Special
Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be
restricted unless as prescribed by law.
Such restrictions shall not contravene the provisions of the preceding
paragraph of this Article.”
ICCPR
“Article 17
1. No
one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2.
Everyone has the right to the protection of the law against such
interference or attacks.”
102. These
provisions are overlapping but not identical.
Whereas Article 30 of the Basic Law protects the privacy of
communication, Article 17 of ICCPR is in wider terms referring as it does simply
to “privacy”. In the present context,
while Article 30 of the Basic Law is relevant in the consideration of the audio
part of the surveillance tapes (being communications), only Article 17 of the
ICCPR is relevant regarding the visual part as these were not
communications. But what does the term
“privacy” mean and what does it encapsulate?
The concept is a wide one, covering an extremely diverse range of
situations. In the Shorter Oxford
English Dictionary, the term “privacy” is defined in the following way : “The
state or condition of being withdrawn from the society of others or from public
attention; freedom from disturbance or intrusion; seclusion.” Thus, for example, a conversation with a
friend on the street can be said to involve some element of privacy as will
obviously activities within one’s own home.
A right to privacy will generally exist where the person in question has
a reasonable expectation of privacy, this being a test that finds favour in both
the United Kingdom (see Campbell v MGN Ltd [2004] 2 AC 457, at 466E
(paragraph 21) per Lord Nicholls of Birkenhead) and in Canada (R v Wong
(1990) 60 CCC (3d) 460, at 477c‑d and 478a per La Forest J).
103. The
particular situation that faces us in the present appeal is of course the covert
surveillance of a person (the Applicant) in his office. Here, as Lamer CJC said in R v Wong at
465h : ‑
“The nature of
the place in which the surveillance occurs will always be an important factor to
consider in determining whether the target has a reasonable expectation of
privacy in the circumstances.”
There is, in our view, no reason why a person
should not be entitled to privacy in his office or workplace. A number of authorities were cited to us
which make this point : ‑ see for example Halford v United Kingdom (1997)
24 EHRR 523, at 543 (paragraph 44) dealing with the interception of telephone
calls made from an office.
104. At one
point in his submissions, Mr Zervos questioned whether the right to privacy
could apply in relation to a person’s office or place of work at all. Referring to the circumstances of the present
case, he pointed out the fact that express permission had been given by the
Director of Housing for the installation of the audio/video surveillance
equipment and also the fact that the Applicant was a public official who was in
his office expected to discharge official duties anyway rather than any private
business. We remain convinced, however,
that the right to privacy (and a reasonable expectation of privacy) can exist as
far as a person’s office or workplace is concerned. A number of situations readily come to mind
in the workplace scenario : changing in one’s room, going to the bathroom, even
the use of the office telephone to make personal calls. The position may be different where, as in a
number of offices, it is made clear to the staff that telephone calls may be
monitored or that video cameras exist to record activities. In these situations, a person may well not
have any reasonable expectation of privacy.
In Halford, it was held that the applicant there (a former
Assistant Chief Constable) was entitled to rely on Article 8 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
European Convention”) ‑ this being the provision which protects the right to
privacy ‑ in relation to the interception of telephone calls made from her
office telephones. It was noted by the
Court in the case that no restrictions had been placed on her use of the office
telephones nor had any warnings been given : see 528 (paragraph 16), 543
(paragraph 45).
105.
Article 30 of the Basic Law provides an exception to the right to
privacy. The article states in terms
“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”. So far as
Article 17 of the ICCPR is concerned, any interference with privacy must not be
“arbitrary or unlawful” and any restrictions on this right must be “prescribed
by law” (see Article 39 paragraph 2 of the Basic Law). The terms “arbitrary or unlawful” in the
context of the Basic Law have been considered by the Court of Final Appeal (when
dealing with Article 28 of the Basic Law) in Lau Cheong and Another v
HKSAR (2002) 5 HKCFAR 415, at 434I‑436H (paragraphs 42‑47). The term “prescribed by law” has been
considered in a number of cases, among them Shum Kwok Sher v HKSAR (2002)
5 HKCFAR 381, at 401J‑403J (paragraph 60‑65) and Gurung Kesh Bahadur v
Director of Immigration (2002) 5 HKCFAR 480, at 492I‑493D
(paragraph 34).
106. As for
the term “in accordance with legal procedures”, Mr Zervos drew our attention to
a decision of Keith J in The Association of Expatriate Civil Servants of Hong
Kong v The Chief Executive of the HKSAR [1998] 1 HKLRD 615 where he
contrasted the difference in terminology between this phrase and “as prescribed
by law”.
107. It is
unnecessary to resolve this issue over terminology in the present appeal
because, as Mr Zervos had to accept, it was an admitted fact that there were no
legal procedures or provisions in place at the time the covert surveillance of
the Applicant took place. At trial, it
was an admitted fact (under section 65C of the Criminal Procedure Ordinance,
Cap.221) that “There are and were at the material time no internal guidelines
within the ICAC or other guidelines governing covert surveillance, including
video surveillance”. At the earlier
hearing of the Applicant’s application for leave to appeal on 25 January 2005,
the Respondent had by a motion sought to withdraw this admission but the
application was no longer pursued when the appeal came to be heard before us.
Although the interference with a
constitutional right can take place at different points of time (such as when
use is sought to be made of the fruits of the original interference : see R v
P [2002] 1 AC 146, at 158C‑D), the original interference with the right in
question must of course be one relevant point.
108. There is
no doubt on the material before us that the Applicant’s constitutional right to
privacy contained in Article 30 of the Basic Law and Article 17 of the ICCPR was
breached by the covert surveillance that was carried out in his offices between
March and August 2001. Although in his
written submissions, Mr Zervos referred to Civil Service Rules and Regulations,
we were not shown any material that suggested any warnings having been given to
the Applicant such that he could not have had any reasonable expectation of
privacy in his office. Further, by
reason of the admitted fact to which reference has been made in paragraph 107
above, there were no legal provisions or procedures in place either so as to
justify any derogation from the Applicant’s rights.
109. A breach
of the Applicant’s constitutional rights being established in the present case,
the issue then arises as to the consequences of this breach; in particular, was
the evidence obtained by the covert surveillance in breach of the Applicant’s
constitutional rights rendered inadmissible?
110. In this
respect, the courts in Hong Kong have in the past applied the decision of the
House of Lords in R v Sang [1980] AC 402 or more precisely, what has been
termed by Litton VP in R v Cheung Ka Fai [1995] 3 HKC 214 as “the common
law as expressed in R v Sang”, namely that the test of admissibility of
evidence was relevance and that it was no part of a judge’s function to exercise
discipline over a law enforcement agency or the prosecutor over the way evidence
was obtained. In Sang, Lord
Diplock said this at 437D‑F : ‑
“(1) A trial judge in a criminal trial has
always a discretion to refuse to admit evidence if in his opinion its
prejudicial effect outweighs its probative value. (2) Save with regard to admissions and
confessions and generally with regard to evidence obtained from the accused
after commission of the offence, he has no discretion to refuse to admit
relevant admissible evidence on the ground that it was obtained by improper or
unfair means. The court is not concerned
with how it was obtained. It is no
ground for the exercise of discretion to exclude that the evidence was obtained
as the result of the activities of an agent provocateur.”
In Cheung Ka Fai, Litton VP said at
222 B‑C : ‑
“ It is common ground that the test of the
admissibility of evidence is relevance.
As Lord Diplock in R v Sang [1980] AC 402 at 432-3 explained, to
exclude evidence obtained ‘unfairly or by trickery’ involves a claim to a
judicial discretion to acquit an accused of any offences in connection with
which the conduct of the police incurs the disapproval of the judge. A court has no such power.”
Cheung Ka Fai provides a clear example of the application of this common
law rule. That case involved the use
also of covert surveillance tactics. The
Court of Appeal in that case were firmly of the view that the common law rule in
Sang applied notwithstanding the existence of the Bill of Rights. Litton VP made this point in the following
passage at 223C‑E : ‑
“ As
can be seen, the argument in effect boils down to this: assuming that the
interceptions amounted to some violation of A1’s ‘privacy’ in terms of
art 14(1), should the trial judge have made an order, pursuant to s 6(1),
excluding the evidence?
This is, in effect, the same argument which is conclusively dealt with by
applying the common law rule in R v Sang. The Bill of Rights is part of the fabric of
the law of Hong Kong. It is not a
self‑contained code. It would be an
extraordinary thing if, by applying the normal rules of evidence and procedure,
a piece of evidence is admissible and yet, by the operation of s 6(1) of the
Bill of Rights Ordinance, it should be inadmissible. This would, in effect, be to operate a dual
system of justice. In our judgment,
s 6(1) has no such effect.”
111.
Mr Blanchflower submitted that this statement of the rule in Sang
now needed revision to take into account the constitutionally guaranteed
provisions of the Basic Law and the ICCPR.
We agree although it is doubtful whether the modern approach (see
paragraph 116 below) marks a dramatic reversal of what has hitherto been the
common law approach in Hong Kong.
Rather, we perceive it as a natural development of the common
law.
112. In
Sang, the House of Lords did not have to deal with any constitutional or
convention provisions (the European Convention was of course not applicable at
that time) nor any statutory provisions.
However, it is noteworthy that in the present context (namely, the
discussion as to the admissibility in criminal proceedings of evidence obtained
in breach of constitutional or common law rights), Lord Scarman had this to say
in Sang regarding the exercise of discretion by a judge (at
453C‑F) : ‑
“ Notwithstanding its development case by
case, I have no doubt that the discretion is now a general one in the sense that
it is to be exercised whenever a judge considers it necessary in order to ensure
the accused a fair trial. Reg. v.
Selvey [1970] A.C. 304 can be seen to be of critical importance. Viscount Dilhorne, though he was directing
his attention to the specific situation in that case (cross-examination of the
accused to his record) referred to cases concerned with other situations, e.g.
Rex v. Christie [1914] A.C. 545, Noor Mohamed v. The King [1949]
A.C. 182, Harris v. Director of Public Prosecutions [1952] A.C. 694 and
Kuruma v. The Queen [1955] A.C. 197, and concluded by saying, at
pp.341-342 :
‘It
[i.e. its exercise] must depend on the circumstances of each case and the
overriding duty of the judge to ensure that a trial is fair’ (my
emphasis).
Lord Hodson,
Lord Guest and Lord Pearce, with whom Lord Wilberforce agreed, were clearly of
the opinion that the discretion was a general one. Lord Hodson said at p.349: ‘Discretion ought
not to be confined save by the limits of fairness.’ Lord Guest said, at p.352, that the
discretion ‘springs from the inherent power of the judge to control the trial
before him and to see that justice is done in fairness to the accused’: and Lord
Pearce echoed his words at p.360F.”
113. It can
be seen from this important passage that two features stand out : ‑ first, the
existence of a discretion to exclude as well as admit; secondly, the emphasis in
the exercise of discretion on ensuring the fair trial of an accused. The fairness of a trial must also of course
include the concept of justice being done in fairness to the accused himself
(echoing the reference to Lord Guest’s speech in Kuruma v The Queen
[1955] AC 197).
114. These
two features were emphasized by the Court of Final Appeal in considering the
admissibility of confessions obtained in covert operations by the ICAC : ‑ see
Secretary for Justice v Lam Tat Ming and Another (2000) 3 HKCFAR
168. The Chief Justice emphasized the
“overriding duty” to ensure fair trial in the following passage at
178J‑179G : ‑
“
The Judge has the overriding duty to ensure a fair trial for the accused
according to law. For this purpose, he
has what should be regarded as a single discretion to exclude admissible
evidence, including a voluntary confession, whenever he considers it necessary
to secure a fair trial for the accused. The essential question is not whether the law
enforcement agency has acted unfairly in a general sense. It is no part of the court's function to
exercise disciplinary powers over the law enforcement agencies or the
prosecution as regards the way in which evidence they seek to adduce at trial
was obtained by them. See
R
v. Sang [1980] AC 402 at p.436G (Lord Diplock);
R
v. Cheung Ka Fai & Another [1995] 2 HKCLR 184 at
p.195 line 40 (Litton V‑P). The court's
function is to consider whether it would be unfair to the accused to use the
confession though voluntary against him at his trial.
The test of
unfairness is not that of a game governed by a sportsman's code of fair
play.
See
R v.
Sang [1980]
AC 402 at
p. 456D‑E;
R v.
Swaffield (1997-8) 192 CLR 159 at
pp.185‑6,
para.35 (Brennan CJ). Unfairness in this
respect is to be judged against and only against what is required to secure a
fair trial for the accused. R v. Sang at
p.453C
(Lord Scarman); Scott
v The
Queen
[1989] AC
1242
at p.1256A‑B.
However,
it is important to observe that in a just society, the conviction of the guilty
is in the public interest, as is the acquittal of the innocent.
See
R v.
Sang at p.437B
(Lord Diplock), p.456E‑F (Lord
Scarman); A‑G
v Lam Man Wah (No.2) [1992] 2 HKC 70 at
p.72C.
The requirement of
a fair trial for the accused involves the observance of principles including the
following which are relevant in this appeal: (1) No man is to be compelled to
incriminate himself; his right of silence should be safeguarded.
(2) No one
can be convicted except upon the probative effect of admissible
evidence.
To ensure
a fair trial for the accused, the court will exclude admissible evidence the
reception of which will compromise these principles.
R v. Sang [1980]
AC 402 at pp.436H‑437D (Lord
Diplock) and p.455C‑E (Lord
Scarman).”
115. But the
following question now requires to be answered in Hong Kong : what effect do
the provisions of the Basic Law and ICCPR have on the exercise of discretion to
exclude evidence in criminal matters? Do
they eliminate the existence of the discretion altogether or if not, how
prominent are they in the exercise of the discretion? In Lam Tat Ming, the Court of Final
Appeal did not consider the impact of either the Basic Law or the Bill of
Rights : see 173H‑I. Nor was the Basic
Law in existence at the time Cheung Ka Fai was decided.
116. 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 breach
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.
The above being the conclusions we have
reached on the questions posed, we now elaborate : ‑
(1)
As has been
emphasized time and time again (but bears repetition), the constitutionally
guaranteed rights and freedoms contained in Chapter III of the Basic Law lie at
the heart of Hong Kong’s separate system and such rights and freedoms are to be
construed generously : see Ng Ka Ling & Others v Director of
Immigration (1999) 2 HKCFAR 1, at 29A‑B; Gurung Kesh Bahadur at
485C‑D (paragraph 3). Where breaches
take place, these are serious matters of which account must be taken by the
courts. As we have said, the rights
contained in the Basic Law and the ICCPR are constitutionally guaranteed rights
and it must be recognized that common law principles will have to be changed to
take into account rights found in conventions or constitutions : see Wilson v
First County Trust Ltd (No.2) [2004] 1 AC 816, at 875 (paragraphs 180 and
182).
(2)
That said, it is
important to bear in mind that a constitutional document such as the Basic Law
states principles only in the most general of terms without condescending to
particularity, a point made in the judgment of the Court of Final Appeal in
Ng Ka Ling : see 28E. In the
present case, so far as Article 30 of the Basic Law and Article 17 of the ICCPR
are concerned, no hint is given in them as to the consequences of a breach of
these Articles.
(3)
The jurisprudence
from the European Court of Human Rights points to the view that while there may
be consequences in terms of adverse declarations or awards of damages when basic
rights have been infringed, the admissibility of evidence obtained for criminal
proceedings resulting from any breach is a matter for the national laws of any
particular state. In Khan v United
Kingdom (2001) 31 EHRR 1016, at 1025 (paragraph 34), the court said
this : ‑
“While
Article 6 [of the European Convention, the equivalent to Article 87 of the Basic
Law] guarantees the right to a fair hearing, it does not lay down any rules on
the admissibility of evidence as such, which is therefore primarily a matter for
regulation under national law. It is not
the role of the Court to determine, as a matter of principle, whether particular
types of evidence – for example, unlawfully obtained evidence – may be
admissible or, indeed, whether the applicant was guilty or not.”
In Holland, a case to which we have
already referred, at 571 (paragraph 39) Lord Rodger of Earlsferry
said : ‑
“It
is trite that the [European] Convention does not concern itself with the law of
evidence as such. In particular, it does
not lay down that certain forms of evidence should be regarded as
inadmissible. Such questions are left to
the national legal systems.”
See here also R v Khan (Sultan) [1997] AC
558, at 581E‑F per Lord Nolan and also R v P at 159 per Lord Hobhouse of
Woodborough. In Halford, a case
involving a breach of the right to privacy (see paragraphs 103 and 104 above),
while the European Court of Human Rights held that the applicant’s right had
been infringed by the interception of telephone calls at her office, the remedy
was an award of damages. Nothing was
said about the use that could be made of the evidence obtained as a result of
the interception.
(4)
Mr Blanchflower made
it clear in his submissions that he was not advocating an automatic exclusion of
evidence should a breach of or derogation from the right to privacy occur. In our view, he was right not to do so. While it may be tempting to adhere so closely
to the fundamental rights contained in Part III of the Basic Law that any breach
of or derogation from them should result in the direst of consequences, this is
in our view too simplistic a stance. One
of the fundamental themes of a constitutional document such as the Basic Law
(and the ICCPR) is the recognition that society has many different interests to
be taken into account and very often, a balance must be struck. Derogations from constitutional rights are
sometimes permitted where they can be justified as being necessary, rational and
proportionate. This is in no way to
undermine the importance of constitutional rights but a court must at times
perform what can be a delicate balancing exercise.
(5)
In the present
context, there are two main competing interests, both facets of what can broadly
be called the public interest : on the one hand the interest in protecting and
enforcing constitutionally guaranteed rights; on the other, the interest in the
detection of crime and bringing criminals to justice. This latter aspect has been highlighted in
many cases, among them Lee Ming Tee (No.2) (to which reference has
already been made in the discussion of Ground 1 above) at 396A‑C
(paragraph 187); R v Khan (Sultan); Allie Mohammed v The State
[1999] 2 AC 111, at 123F‑G. It is hardly
surprising that this latter facet of the public interest receives
prominence. It is not only commensurate
with commonsense, the wording of the Basic Law also supports this. In Article 30 of the Basic Law, the concept
of the “investigation into criminal offences” is expressly mentioned, albeit in
the context of legal procedures allowing an invasion into the right to
privacy.
(6)
The balancing
exercise that faces the court in the exercise of its discretion in each case
where there has been a breach of or derogation from constitutional rights,
involves a consideration of the two facets mentioned in the last paragraph. The objective of the exercise of judicial
discretion is to ensure that a fair trial of the accused takes place. We have already referred to relevant passages
in the decision of the House of Lords in R v Sang and that of the Court
of Final Appeal in Lam Tat Ming (see paragraphs 112 and 114 above). In R v Khan (Sultan), a case involving
covert surveillance, Lord Nicholls of Birkenhead referred to the discretion to
admit or exclude evidence and the right to a fair trial contained in Article 6.1
of the European Convention as being concerned to ensure that those facing
criminal charges would receive a fair trial : at 583B‑C. He added at 583C‑D : ‑
“In
the present case the decision of the European Court of Human Rights in Schenk
v Switzerland, 13 E.H.R.R. 242 confirms that the use at a criminal trial of
material obtained in breach of the rights of privacy enshrined in article 8 does
not of itself mean that the trial is unfair.”
(7)
More recently, in
R v Looseley (Attorney‑General’s Reference No.3 of 2000) [2001] 1 WLR
2060, the House of Lords considered the question of entrapment in the context of
the right to a fair trial under Article 6 of the European Convention. We believe this decision provides valuable
guidance as to both the nature and the exercise of the discretion under
discussion. It qualifies what might
appear to have been the effect of R v Sang by emphasizing the principle
that the court could exclude evidence obtained by unfair means in circumstances
where the court considered the admission of the evidence to have such an adverse
effect on the fairness of the proceedings that the evidence ought to be
excluded : at 2066D‑F (paragraph 11), 2067F (paragraph 16), 2098A
(paragraph 122). We are conscious of the
fact that in the United Kingdom, the court’s discretion on the exclusion of
evidence is now governed by section 78(1) of the Police and Criminal Evidence
Act 1984 which is in the following terms : ‑
“ In any proceedings the court may refuse to
allow evidence on which the prosecution proposes to rely to be given if it
appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence
would have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it.”
However, in our view, this provision merely
reflects the common law position, certainly as it exists in Hong Kong (see
Lam Tat Ming at 178J‑179G) and probably in the United Kingdom as well
(see Sang in particular the speech of Lord Scarman referred to in
paragraph 17 above). This is also
recognized as a facet of the right to a fair trial contained in Article 6 of the
European Convention : see R v P at 158F‑159G per Lord Hobhouse of
Woodborough.
(8)
In considering the
fairness of a trial, the court must take a broad view of the overall
circumstances. The court must look at
the fairness of the actual trial itself : for example, whether the evidence
obtained in breach of constitutional rights is reliable in the first place.
Thus, for example, evidence which has
been “tricked” out of a person (say, by inducements improperly made) may be so
inherently unreliable that it ought to be excluded.
(9)
However, the court
does not just look at procedural fairness in the actual trial. It is also entitled to look at the overall
behaviour of the investigating authority or the treatment of the accused. Thus, circumstances may be such that it would
simply be unfair to an accused person to allow certain evidence to be used at
trial, for example, where an innocent person has been enticed to commit a
crime. There can be situations in which
it 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. It is clear from the passage
from Lord Scarman’s speech in Sang (see paragraph 112 above) that there
must be justice done to the accused himself.
The terms “affront to the public conscience” and “compromise the
integrity of the judicial system” are used by Lord Nicholls of Birkenhead and
Lord Hoffmann in Looseley at 2069H (paragraph 25) and 2080C
(paragraph 71). Mr Blanchflower
submitted that these terms were too vague as offering any useful yardstick.
However, we are of the view that,
although necessarily general in nature, they provide useful and readily
comprehensible concepts for the court to apply, marking the limits where the
court will take the view that enough is enough.
In Lee Ming Tee (No.2), Sir Anthony Mason uses these very terms in
the context of the grant of a permanent stay in criminal proceedings : see
394F‑296F (paragraphs 182‑188). In
Looseley, in referring to the term “fairness of the proceedings”
contained in section 78 of the Police and Criminal Evidence Act, Lord Nicholls
of Birkenhead said this at 2066F‑2067A (paragraph 12) : ‑
“The phrase
‘fairness of the proceedings’ in section 78 is directed primarily at matters
going to fairness in the actual conduct of the trial; for instance, the
reliability of the evidence and the defendant’s ability to test its
reliability. But, rightly, the courts
have been unwilling to limit the scope of this wide and comprehensive expression
strictly to procedural fairness. In R
v Smurthwaite [1994] 1 All ER 898, 902 Lord Taylor of Gosforth CJ stated
that section 78 has not altered the substantive rule that entrapment does not of
itself provide a defence. The fact that
the evidence was obtained by entrapment does not of itself require the judge to
exclude it. But, in deciding whether to
admit the evidence of an undercover police officer, the judge may take into
account matters such as whether the officer was enticing the defendant to commit
an offence he would not otherwise have committed, the nature of any entrapment,
and how active or passive was the officer’s role in obtaining the evidence. I do not understand Auld LJ to have been
expressing a contrary view in R v Chalkley [1998] QB 848, 874, 876. R v Chalkley was not an entrapment
case. Most recently in R v
Shannon [2001] 1 WLR 51, 68, para 39 Potter LJ, as I read his judgment,
accepted that evidence may properly be excluded when the behaviour of the police
or prosecuting authority has been such as to justify a stay on grounds of abuse
of process.”
(10)
On the other hand,
the breach of or derogation from constitutional guaranteed rights may be
outweighed by the public interest in ensuring that crimes are detected and
punished. Here, one needs to look
closely at two inter‑related aspects : the right that has been breached and the
extent of the breach. Though all rights
guaranteed by a constitution are to be accorded great respect and any breach or
derogation must always be considered a cogent factor in excluding evidence, one
must bear in mind that some rights are more fundamental and important than
others and that where a right is breached, this can occur in a multitude of
different situations. In Allie
Mohammed at 123H‑124C, Lord Steyn said this : ‑
“On the other hand, it is important to bear in
mind the nature of a particular constitutional guarantee and the nature of a
particular breach. For example, a breach
of a defendant’s constitutional right to a fair trial must inevitably result in
the conviction being quashed. By
contrast the constitutional provision requiring a suspect to be informed of his
right to consult a lawyer, although of great importance, is a somewhat lesser
right and potential breaches can vary greatly in gravity. In such a case not every breach will result
in a confession being excluded. But
their Lordships make clear that the fact that there has been a breach of a
constitutional right is a cogent factor militating in favour of the exclusion of
the confession. In this way the
constitutional character of the infringed right is respected and accorded a high
value. Nevertheless, the judge must
perform a balancing exercise in the context of all the circumstances of the
case. Except for one point their
Lordships do not propose to speculate on the varying circumstances which may
come before the courts. The
qualification is that it would generally not be right to admit a confession
where the police have deliberately frustrated a suspect’s constitutional
rights.”
(11)
Where the gravity of
a breach or derogation is small but the crime involved is a serious one, the
public interest will lean more favourably towards the latter factor with the
consequence that any evidence obtained as a result of the breach or derogation
will be admitted. In Shaheed, a
decision of the New Zealand Court of Appeal we have found of great assistance,
the following passages make out this point : ‑
“[147]
The starting point should always
be the nature of the right and the breach.
The more fundamental the value which the right protects and the more
serious the intrusion on it, the greater will be the weight which must be given
to the breach. If, for example, an
unlawful search or seizure involves a substantial invasion of privacy, like the
taking of a blood sample, that will count heavily against admissibility. It will do so not because the evidence of the
blood sample is self‑incriminatory, as has been held in Canada, but because of
its invasive quality. But where the
breach of rights is readily excusable (for example, a breach of s 23(1)(a) or
(b) in circumstances of urgency or danger) it will require rather less in the
way of vindication. The breach will then
be accorded less weight.
…..
[152]
It is also a matter which must
be given weight in favour of admission if the disputed evidence is not only
reliable but also central to the prosecution’s case – that the admission of the
evidence will not lead to an unfair trial and the case is likely to fail without
it. The more probative and crucial the
evidence, the stronger the case for inclusion, although this factor ought not by
itself to lead to automatic admission.
Of course, if the evidence is less significant there is less reason to
admit it in the face of a more than a trivial breach of rights. If, however, the crime was very serious,
particularly if public safety is a concern, that factor coupled with the
importance of the evidence in question may outweigh even a substantial
breach. It may require the view to be
taken that exclusion of the evidence, leading to failure of the Crown case, is a
remedy out of proportion to the circumstances of the breach. The example of the serial murderer given in
Attorney‑General’s Reference is compelling. Public confidence in the justice system would
obviously be severely shaken were probative evidence to be excluded in such
circumstances unless perhaps the breach was both fundamental and
deliberate. Weight is given to the
seriousness of the crime not because the infringed right is less valuable to an
accused murderer than it would be to, say, an accused burglar, but in
recognition of the enhanced public interest in convicting and confining the
murderer. In contrast, where the crime
with which the accused is charged is comparatively minor, it is unlikely that
evidence improperly obtained will be admitted in the face of a more than minor
breach of the accused’s rights.
…..
[156] To sum
up, where there has been a breach of a right guaranteed to a suspect by the Bill
of Rights, a Judge who is asked to exclude resulting evidence must determine
whether that is a response which is proportionate to the character of such a
breach of the right in question. The
Judge must make that determination by means of a balancing process in which the
starting point is to give appropriate and significant weight to the existence of
that breach but which also takes proper account of the need for an effective and
credible system of justice. This
approach should not lead, in most cases, to results different from those
envisaged in earlier judgments of this Court but will, it is hoped, lead to a
judicial technique which involves a greater exercise of judgment than the
previous focus on a ‘prima facie rule’ may have encouraged.”
(12)
The public interest
of course lies in the effective prosecution and punishment of crime, but account
must also be taken by the court of the detection of crime by the investigating
authorities. In Lee Ming Tee
(No.2), Sir Anthony Mason referred
to the “public interest in the detection and punishment of crime”
(emphasis added) : see 396A‑B (paragraph 187).
Accordingly, in our view, when conducting the balancing exercise, a court
must also have regard to the fact that some crimes are by their very nature
surreptitious and not easily detected.
Often, it may be that the investigating authorities are driven to resort
to covert investigative techniques in order properly to detect criminal
activity. All this does not naturally
provide any excuse from the breach of or derogation from constitutional
guaranteed rights, but it is a factor for the court to weigh in the balancing
process when considering the admissibility of evidence.
(13)
In the present case,
we are of course concerned with the right to privacy. This is without doubt an important right
which must be accorded due respect.
However, it must be put into proper context. As Lord Steyn said in Attorney General’s
Reference (No.3 of 1999) [2001] 2 AC 91, at 118D‑G : ‑
“It
must be borne in mind that respect for the privacy of defendants is not the only
value at stake. The purpose of the
criminal law is to permit everyone to go about their daily lives without fear of
harm to person or property. And it is in
the interests of everyone that serious crime should be effectively investigated
and prosecuted. There must be fairness
to all sides. In a criminal case this
requires the court to consider a triangulation of interests. It involves taking into account the position
of the accused, the victim and his or her family, and the public. In my view the austere interpretation which
the Court of Appeal adopted is not only in conflict with the plain words of the
statute but also produces results which are contrary to good sense. A consideration of the public interest
reinforces the interpretation which I have adopted.”
117.
Returning then to the facts of the present case, we are mindful that a
retrial has been ordered by us and that therefore the question of the
admissibility of the covert surveillance tapes may again surface for
determination. It is accordingly
undesirable for the Court to say too much other than to state the legal
principles that govern this matter, which we have done. It was necessary to do so since, on one view,
the surveillance evidence could have been rendered inadmissible by the mere
breach of the right to privacy alone. On
the facts of the present case, however, as Mr Blanchflower has argued that the
edited portions of the tapes of the covert surveillance ought not to have been
admitted by the Judge, we should briefly state our views on this. Essentially, Mr Blanchflower complained that
Pang J paid insufficient regard to the breach of the Applicant’s right to
privacy by the ICAC, operating as they were without legal (or indeed any)
procedures in place : see the Admitted Facts (paragraph 107 above). He also submitted that the Judge applied the
wrong legal principles.
118. In our
view, on the facts before the Judge (and we stress this), his decision to admit
the tapes was correct : ‑
(1)
As is clear from his
succinct ruling on the question of admissibility, the Judge accepted that the
Applicant’s right to privacy had been infringed. He also accepted that no legal procedures
were in place regarding the use of covert surveillance techniques.
(2)
However, the Judge
emphasized the fact the ICAC had obtained the permission of the Director of
Housing to conduct the covert surveillance and that this took place in the
Applicant’s office. He noted that the
use of covert tactics were at times an essential weapon and referred to the
Chief Justice’s judgment in Lam Tat Ming at 180J‑181A where he said : ‑
“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.”
(3)
Although the Judge
could have been more detailed in the statement of the applicable legal
principles, he did not have the benefit of the extensive analysis and arguments
that we have been provided nor did he have the luxury of time.
119. For the
above reasons, this Ground of Appeal fails.
Grounds 4, 5 and 6 : The right of
silence
120. These
grounds of appeal all deal with the right of silence. Factually, Grounds 4 and 5 relate to the
first two of three video‑recorded interviews.
Ground 6 relates to comments made by the Judge during the summing‑up that
the Applicant did not inform the ICAC during any of the video‑recorded
interviews that he had a habit or hobby of counting money and that this version
only emerged during his testimony at trial.
121. The
complaint in Ground 4 is that the Judge failed to delete the questions and
answers in the tape recording and transcript of the Applicant’s first interview
where he exercised the right of silence, or he failed to direct the jury that
the failure to respond to allegations made to the Applicant in that interview by
exercising his right of silence could not constitute evidence against
him.
122. Ground 5
challenges the Judge’s admitting into evidence the tape recording and transcript
of the Applicant’s second video‑recorded interview during which he exercised the
right of silence.
123. The
difference between the first and second interviews was that during the first,
the Applicant answered a large number of questions only declining to answer a
few whereas from the beginning of the second interview, after having taken
advice from his solicitor Mr Raymond Ho, the Applicant had steadfastly chosen
not to respond to almost any of the questions put to him.
124. It will
be remembered that it was during the third video‑recorded interview that the
Applicant started to make admissions relating to various occasions when he had
received corrupt money. The questions
put to him in the third interview referred to several occasions in which he was
seen (as recorded by audio/visual surveillance devices) of handling money in his
office. The surveillance video recording
was played during the second interview when the Applicant refused to answer
questions put by C I Yang. In the third
interview, the video recording was not played but was referred to in the
questions.
125.
Objection was taken by the Applicant’s counsel as to the admissibility of
the video tapes of the three interviews as well as the transcript of the
conversations in them. The grounds of
such objection were set out in written form, raising allegations of oppression
and inducement on the part of C I Yang. Any
admissions made by the Applicant were accordingly said to have been made
involuntarily.
126. It is
trite law that the right of silence is one of the requirements of a fair
trial. In Lam Tat Ming & Anor
at 179E, the Chief Justice, with whom all other members of the Court of
Final Appeal agreed, in a passage already quoted in paragraph 114 above,
stated : ‑
“The
requirement of a fair trial for the accused involves the observance of
principles including the following which are relevant in this appeal: (1) No man
is to be compelled to incriminate himself; his right of silence should be
safeguarded. (2) No one can be convicted
except upon the probative effect of admissible evidence. To ensure a fair trail for the accused, the
court will exclude admissible evidence of the reception of which will compromise
these principles. …”
127. In Lee Fuk Hing v HKSAR
[2005] 1 HKLRD 349 at 369E, Mortimer NPJ stated
categorically that : -
“55. … it is inappropriate in Hong Kong to use a
person’s silence against him in any way.”
He continued : -
“56. A person’s right against self-incrimination
(his right of silence) would otherwise become a possible source of
entrapment. It is unfair for a person to
have the right to remain silent, and usually to have been reminded of this right
through the caution, and then for his silence to be put against him at
trial.”
128.
The absurdity of allowing
adverse inferences to be drawn from the exercise of the right of silence has
been succinctly put by Lord Mustill in R v Director of Serious Fraud Office,
Ex p Smith [1993] AC 1, at 32 : -
“…there
is the instinct that it is contrary to fair play to put the accused in a
position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of
his own mouth; if he refuses he may be punished for his refusal …”
129. The
previous distinction drawn between criticising the exercise by an accused of his
right of silence (which was not permissible) on the one hand and commenting on
his failure to put forward an innocent explanation when given an opportunity to
do so, thus affecting his credibility (which was permissible) on the other hand
is now no longer valid : see Lee Fuk
Hing at paragraph 55 and Petty & Maiden v R [1991] 173
CLR 95. The law is now settled that no
adverse inference can be drawn from the fact that an accused has exercised the
right of silence.
130. The main authority on which
Mr Blanchflower
relied in support of Grounds 4 and 5 was
R v Welch [1992] Crim LR 368, where the trial judge, despite objection,
allowed evidence of the interviews with the accused in that case to go before
the jury in toto. In those
interviews, a number of questions had been put to the accused who answered them,
but they were interspersed with questions which he declined to answer. In allowing the appeal, after identifying
three questions asserting the interviewing officers’ belief in guilt of the
appellant, to which the accused had simply responded “Nothing to say”,
Taylor LJ giving the
judgment of the Court of Appeal in England observed : ‑
“The
effect upon the jury may very well have been to make some of them wonder why on
earth he [the accused] did not answer if he was an innocent man. …
…it
was extremely important that he [the judge] should give a proper direction as to
their [the jury’s] approach to the interview.
They should have been reminded in regard to it that although he [the
accused] was saying ‘Nothing to say’ at a number of points, he had every right
to do that and was not bound to answer the questions. The judge should have indicated to the jury
that they should not infer guilt from his failure to respond. … the learned judge ought to have indicated
to the jury that accusations made in an interview by police officers,
particularly accusations not supported by evidence elsewhere, did not amount to
any evidence in the case, and that where the defendant declined to reply the net
result of such questions and answers was nil.”
131. Mr
Blanchflower referred us to four occasions in the first interview in which the
Applicant declined to answer the questions put to him and submitted that serious
prejudice had resulted because the questions related to some of the charges and
the Applicant had been cross‑examined on some of them. He submitted that it therefore became
necessary for the Judge either to excise them or to give a specific direction
that they be disregarded. It was said
the Judge’s general direction in his summing‑up about the Applicant’s right to
silence and his exercising it was insufficient to remedy the prejudice thus
caused.
132. In
Welch, the English Court of Appeal referred to R v Mann [1972] 56
Cr App R 750. At 757 of Mann,
Widgery LCJ stated : -
“It
is, of course, well established by authority that, if an accusation is made
against a suspected person, the mere fact that he is silent in the face of the
accusation is not the basis upon which an inference against him can be
drawn. If one wanted modern authority,
it is found in HALL v. R. [1971] 1 W.L.R. 299.
If the accused had failed to respond and kept silent to every question,
it may very well be that on that simple principle it would be said that the
evidence of the abortive dialogue, the one-sided dialogue, should not be
admitted. But here one gets a different
situation. One gets a number of
questions answered by the appellant, which means the questions and answers are
clearly admissible, and interspersed with those are questions which he refused
to answer. There are a great many
reasons, we feel, why in a situation of this kind it is right that the whole
dialogue should go in before the jury.
Sometimes indeed it will be for the benefit of the suspect, although this
time it must be right, Mr. Lewis says, that in the end it reacts against him
rather than in his favour, but, subject always to the discretion of the judge in
individual cases, we think a dialogue of this kind which is clearly admissible
in part should go in in toto in the ordinary case. We think that is a much more likely route to
the truth, and we find no substance in the end in the complaint in this case
that a blue pencil should have been used and those questions which had not been
answered should have been excised.”
133. In
HKSAR v Chow Wing Man, CACC 613/2002 (20 August 2004, unreported), the trial judge had allowed the prosecution to show the jury
a video film of an interview with the accused in which he
was not willing to answer any questions and also to produce a transcript of that
interview. On appeal, this Court
distinguished Mann by stating that in that case, there could be no reason
to adduce evidence of the interview other than to attack the Applicant’s
credibility by his only giving an account for the first time at trial. Stuart-Moore Ag CJHC observed :
‑
“63. We have concluded that the first interview
… should not have been exhibited in either video or written form … The
applicant’s silence, in the face of highly pertinent questioning on issues of
crucial significance, may, we consider, have had an adverse effect on his
trial. The applicant had received legal
advice, before the interview began, that he was entitled not to answer the
questions he was asked and the caution, at the start of the interview, provided
him with confirmation of his right to remain silent. Although the judge made no adverse comment in
this regard, and had directed the jury not to hold the applicant’s silence
against him, we are driven to the conclusion that the jury may have used the
applicant’s refusal to answer as a reflection on his credibility because they
had seen on video and read in the record of interview the full extent of the
questioning. Such material should, in
the particular circumstances which had arisen, have been excluded from their
consideration. It provided a wholly
‘one-sided dialogue’ to adopt the words of the judgment in R v Mann
(above). If the applicant had been
selective as to which questions relating to the murder he chose to answer and
those which he declined to do so, then no doubt the whole of the interview could
have been admitted but the applicant answered none of them.”
134.
Mr Blanchflower’s complaint against the admission of the first
interview into evidence was that the Judge failed to excise those questions to which the
Applicant had merely responded by exercising his right of silence. However, it is abundantly clear that in the
duration of about 3½ hours of the first interview, there were only four or five
occasions when the Applicant did exercise his right to remain silent. On the authority of Mann, we do not
see any justification to say that the Judge was wrong. In our view, the jury was entitled to see the
whole course of the interview. Moreover,
Mr Harris, counsel for the Applicant at trial, did not ask the
Judge to excise any part of the interview nor indeed did he raise any objection
to the admissibility of the unanswered questions. This distinguishes the present case from
Welch where a submission had been
made to the judge to exclude the questions.
Accordingly, Ground 4
fails.
135. The
factual situation of Ground 5, which related to the second interview, is as we
have already observed quite different.
It commenced in the presence of Mr Raymond Ho, the Applicant’s solicitor.
Upon Mr Ho’s advice, the Applicant exercised his right to remain silent throughout,
even after Mr Ho had left the interview in the middle of it. Mr Zervos drew our attention to a few portions of the
interview in which the Applicant did give answers to make the point that there was
not a total absence of answers on the Applicant’s part. However, such answers as there were, consisted
only of corrections of mistakes made by the interviewer.
136.
Mr Blanchflower submitted that Chow Wing Man
therefore applied to the second interview : it had no probative value
and was prejudicial to the Applicant.
Mr Zervos, however,
contended that the relevance
of the second interview was not for
the purpose of attacking the Applicant’s credibility at all. Rather, it provided a complete picture of
what had transpired during the three interviews and if anything, this supported
the Applicant. There was a marked
contrast between the first two interviews (in which the Applicant made no
admissions) and the third in which all the incriminating admissions were made by
him. Thus, so the argument ran, this
supported the Applicant’s contentions that the admissions had been obtained
through oppression and inducement.
Moreover, Mr Zervos emphasised that there was no prejudicial effect on
the Applicant, which distinguished the present case from
Welch and Chow Wing Man,
because the questions put to him in the second interview (which he did not answer) were
similar to the questions put to him in the third interview when he made material
admissions of receiving corrupt money on various occasions. The unanswered allegations in the second
interview were in fact agreed to in the third interview, and as such there could
be no prejudicial effect on the Applicant.
137.
Mr Blanchflower informed us that although Mr Harris had not objected to the admission in evidence of the
first and second interviews on the basis of irrelevance or prejudice,
Mr Harris had told him that the reason was that the point had
not occurred to him. In reply to
Mr Zervos’ submission that the first and second interviews
were produced in fact for the benefit of the Applicant, Mr Blanchflower suggested that the contrast
between the three
interviews could have been achieved
simply by the parties agreeing as a fact that there were the first two
interviews where the Applicant had not made any admissions.
138.
Regarding Mr Zervos’ submission that the first and second interviews
were adduced in evidence in order to give to the Judge and the jury the whole picture of what went on between
the Applicant and the ICAC officers during all of the interviews after he had
been arrested, Mr Blanchflower referred us to R v Boyson [1991] Crim LR
274 where the English Court of Appeal held that the judge had wrongly admitted
the evidence of a co‑accused’s conviction at the trial. In relation to the argument that the evidence
was necessary for the jury to have the whole picture, the Court
stated : ‑
“That
in our judgment, is not a proper basis for allowing evidence to go before a
jury. Before any piece of evidence which
is challenged can go before a jury in a criminal case the court must be
satisfied: (1) that it is relevant; (2) it is admissible; (3) that its probative
value outweighs its prejudicial value; and (4) that it is not otherwise unfair
under section 78 [of the Police and Criminal Evidence Act 1984]. The fact that it may be part of ‘the whole
picture’ is nothing to the point. We do
not approve what seems to be a growing practice of allowing evidence to go
before a jury which is either irrelevant, inadmissible, prejudicial or unfair
simply on the basis that it is convenient for the jury to have ‘the whole
picture’.”
139. However,
viewing the circumstances of this case as a whole especially given the lack of
any objection raised at the time by the Applicant’s counsel and the important
aspect of the benefit to the Applicant in contrasting the content of the three
interviews, we are of the view that evidence of them was correctly
admitted. We also agree with the
submission of Mr Zervos that the allegations made in the second interview
did not have the prejudicial effect on the Applicant suggested by
Mr Blanchflower as similar allegations were made to him in the third interview when he made admissions. The prejudicial effect of the allegations
contained in the unanswered questions in the second interview had, in our
judgment, been subsumed in the Applicant’s inculpating admissions in the third
interview.
140. In any
event, one also has to bear in mind the general direction given by the Judge in
his summing‑up regarding the right of silence : ‑
“ First, you will remember during the
first interview and during part of the second interview the defendant exercised
his right of silence when he was asked questions about the suspected offences by
Mr Eric Yang. Members of the jury, any
person suspected of a criminal offence or charged with an offence is entitled to
say nothing when asked questions about it.
You must not hold the defendant’s refusal to answer questions against
him. The exercise of the right to
silence cannot amount to an admission of any kind, nor can it be taken to
reflect a guilty conscience. You must
bear this in mind.”
141. Ground 5
therefore fails. We now turn to
Ground 6.
142. This
ground complains about the Judge’s following comments in the
summing‑up : ‑
“
He [the Applicant] told us, nevertheless, he would also have the habit of
going back to his home, throwing the money on his bed and then try to put them
back right again. That was what he
said. You will recall he never told the
ICAC during any of the interviews that he had this habit of counting
money.
In cross-examination he was asked by
Mr McNamara
about the habit of counting money. The
question was: ‘Why didn’t you tell the ICAC that you have a habit of counting
money?’ His answer: ‘If there had been
only two incidents, I would have mentioned that. But I had the impression that they had a lot
of information on me. He also said –
that is, Mr Yang
– that he had believed that the corrupt money had something to do with my son,’
hence, he had chosen not to tell the ICAC people about his habit.”
143.
Mr Blanchflower referred to the transcript to show that in fact
Mr McNamara, counsel for the prosecution at trial, had not
asked the Applicant about his alleged habit of counting money at
all. Mr McNamara’s questions in cross‑examination of the Applicant were as to why he had not told
the ICAC that two sums of money he had received from two persons as gifts were
not returned to them although the Applicant testified that he had intended to do
so. Mr Zervos was unable to contradict this.
144. On this
issue, Mr Blanchflower relied on Lin Ping Keung v HKSAR [2005] 8 HKCFAR 52, where the trial judge made a mistake
as to the date of the arrest of the accused’s sister whom he had
alleged was in possession of the dangerous drugs found in the flat they
shared. In allowing the appeal,
Chan PJ emphasised the importance of the great care and accuracy
that needed to be taken
in stating the facts in a
summing‑up, particularly if adverse comments were to be made based on those
facts. Chan PJ observed at 61I : ‑
“32. It is of course permissible for a judge to
make adverse comments on the defence provided it is based on an accurate
reflection of the evidence and is fair and balanced. Whether in the present case, had the judge
not made an error of fact, his comments were within permissible limits is
debatable. But making such comments on a
basis which did not accurately reflect the evidence is
unacceptable.”
145.
Mr Blanchflower also submitted that the Applicant’s explanation at the trial about his
habit of counting money went to the “heart” of his defence: the money he was
seen counting in the surveillance recordings was his own money, not corrupt
money; and that his credibility was crucial to his defence. It was stressed that the Judge’s comments
which referred to and emphasised prosecution counsel’s impermissible questioning
would have been interpreted by the jury as a direct attack on the Applicant’s
credibility. It was an attack which
impermissibly breached his right of silence and thus his right to a fair
trial.
146. In
respect of the right of silence, Mr Blanchflower relied on Lee Fuk Hing,
where Mortimer NPJ said at 369I‑J : -
“58. … the questions and answers complained of
were inadmissible. They invited the jury
to form an adverse inference against the accused because he had not disclosed
his defence earlier to the police. They
raised inferences not only of guilt but also that the defence lacked
credibility. It was a serious breach of
the accused’s right of silence and to a fair trial according to
law.”
147. On the
other hand, Mr Zervos relied on the following passages in
Mortimer NPJ’s judgment in an attempt to justify the Judge’s comments even though he had to accept
that the Judge had made an error in quoting from the evidence:
“57.
We may add that, of course, if an
accused person makes a statement to the police (under caution or otherwise)
which is inconsistent with his defence which can be fairly criticized on other
grounds it is open to the prosecution to cross examine and comment upon that
statement and its relevance to the defence.
The judge may also invite the jury to draw relevant and fair inferences
even if they are adverse to the accused.
…..
67. … A judge’s task when summing-up includes
directing the jury on the relevant law, identifying the issues to be decided and
summarising the relevant evidence. In
summarising the evidence he is entitled to comment upon it to assist the
jury. These comments in appropriate
circumstances may be robust but they must always be fair and the judge must
always direct the jury to consider the evidence in a fair balanced and impartial
manner.”
148.
Mr Zervos submitted that the video recordings of the
surveillance when the Applicant was seen counting money in his office were
played for his viewing during the second interview and they were referred to in
the third interview. In the third
interview, the Applicant provided an explanation for the counting of money. Thus, he submitted, the Judge’s remarks were
appropriate in the circumstances and should also be viewed in the light of his
directions to the jury that the Applicant’s exercise of his right to remain
silent should not be held against him (see paragraph 140 above).
Moreover, the present case should be distinguished from
Lee Fuk Hing in
that the Applicant here did not exercise completely his right to
silence as he had relinquished that right in the third interview.
149. However,
Mr Zervos had to accept that the Judge had made a mistake in quoting
the evidence. He submitted nevertheless
that the mistake was a minor irregularity that should not diminish the safety of
the convictions.
150. In our
judgment, the mistake and the comments made by the Judge created a serious
irregularity. Nowhere in the interviews
had the Applicant been asked as to why he counted money. He was merely asked of the source of the
money that he was seen in the video recordings to be counting. At the trial, no question was directed at his
habit of counting money and this fact was only volunteered by him when he was
cross‑examined by Mr McNamara.
He was not even
cross‑examined on the veracity or
reliability of the habit. If any adverse
comment was to be made in this context, we are of the view that the Applicant
ought fairly to have been given the opportunity to respond. In the absence of such an opportunity, the
Judge’s comments were unfair.
151. The
Judge’s comments could have underminded the credibility of the Applicant or his
defence. In the circumstances of this
case where the comments were not based correctly on the evidence and where the
Applicant was not given any opportunity to answer any allegation attacking the
veracity or reliability of his alleged habit of counting money, the comments
were not justified and were unfair. They
encroached on the right of silence and notwithstanding the general direction to
the jury about this right, they were in our view not permissible.
152.
Accordingly, we allow the appeal on this ground. The consequence of this is that, in
circumstances where a retrial should be ordered in relation to Ground 1, a
retrial should be ordered on this ground as well.
153. There is
always a risk that this kind of comment by judges presiding at trials may be
seen as a breach of the right to remain silent and may thus form a basis for
challenge on appeal. They should well
bear in mind the following advice given by Humphreys J when he delivered the judgment of the Court of Criminal
Appeal in Tune (1944) 29 Cr App R 162, at 165 : ‑
“This
Court thinks it right, … to make this observation: It is probably better, where
a person has been charged with a criminal offence after having been cautioned
and has either made no answer at all, or has made some observation which in
itself is not in the nature of an explanation of the charge, that the presiding
Judge should say nothing about it beyond telling the jury exactly what was said
or not said on that occasion, because many observations of different sorts by
learned Judges have from time to time been made the subject of appeals to this
Court. If nothing is said by way of
comment by the presiding Judge, no point can be raised.”
Conclusion
154.
Mr Blanchflower submitted in relation to each of the Grounds of Appeal
that were he to succeed on any of them, the consequence should be that the Court
ought not even order a retrial. In our
view, although the Applicant succeeded under Grounds 1 and 6, the correct course
was to order a retrial.
155. In
further support of his arguments, Mr Blanchflower also referred to the fact that
the Applicant was 60 years old, had liver and kidney problems, had already
served 13 months’ imprisonment and that the offences with which he was charged,
dated back to events of 5 to 7 years ago. We had taken all of these factors into account
but remained of the view that given the seriousness of the offences and the
available evidence in support of them, the interests of justice were better
served by ordering a retrial.
156. On the
question of costs, we now invite the parties to make their submissions in due
course.
(Geoffrey
Ma)
|
(K H Woo)
|
(Robert
Tang)
|
Chief Judge, High
Court
|
Vice
President
|
Justice of
Appeal
|
Mr M Blanchflower SC and Ms Maggie Wong
instructed by Messrs Simon
C W Yung &
Co for the Applicant
Mr Kevin P Zervos SC & Ms Winnie Ho of the
Department of Justice
for the
Respondent
2006年9月29日，陈裘大在香港高院就11项公职人员收受利益罪重新受审，他独自到高院应讯，并否认全部控罪。陈裘大在被告人席上表现平静，边听案情边作笔记，累了便闭目养神。法官伦明高提醒五女二男陪审团，不要理会报章杂志和电子媒体的报道，应专注案中证供作判断，决定被告有否贪污受贿。
陈裘大为应付本次诉讼，特地聘请资深大律师郭栋明出庭抗辩。辩方曾指偷拍侵犯私隐，争取将偷拍数钞票片段拒纳入呈堂证据，但申请失败。
2006年11月14日，香港高等法院裁定，房屋署前工程师陈裘大受贿案9项贪污收贿罪成立，监禁6年，追回110万港元贿款，同时丧失650万港元退休金。法官亦指出，陈裘大的行为未有损害房署工程项目的安全标准。
主审法官伦明高形容陈裘大贪污行为如蜘蛛结网般，陈裘大位处蜘蛛网中心，四周收受承办商的贿款，当承办商遇到困难向他求助时便给他贿款，陈同时又向他们提出索贿要求。
法官又指出，陈裘大身为房署总屋宇装备工程师，位高权重，月薪逾11万港元，受房署及公众的信任，却利用职权制造机会，不停收受贿款；而其中一项控罪，指他收受贿赂协助朋友的儿子取得政府合约工程师职位，代表其贪污行为扩张至另一新领域。
法官指斥陈裘大的贪污行为严重违反诚信，罪责十分严重，贪污持续长达8个月，至少接受6名人士贿款达150万港元。法官重申，已考虑陈年届61岁，以往品格良好，至于健康欠佳，需等候换肝，并非减刑因素，实际上都是他贪污咎由自取。
法官另应控方申请，按防止贿赂条例颁令要陈裘大交出实收的贿款104万港元，另按刑事诉讼程序条例交出廉署在其办公室查获的6万港元现金。法庭拒绝陈裘大申请上诉时获准保释以便陈裘大就医。
涉嫌向陈裘大行贿的被告黄洪基及余志伟后来向上诉庭上诉获准，获颁令永久终止聆讯，无罪释放
。
2008年2月，陈裘大向上诉庭提出减刑上诉，并披露其肝病恶化，并由其中一名儿子捐出部分肝脏以续命。不过上诉庭颁下书面陈词驳回其上诉，并维持原判。判词称，现时难以找到比陈裘大更露骨的公共贪污案，如果再重审，刑期应比现在判处的6年监禁更长。
2008年10月，由于陈裘大服刑期间行为良好，并且已服刑满一半，惩教署批准了陈裘大提出的“监管下释放计划”申请，如愿获提早释放，回家接受监管。他须做工作、住在家中及接受惩教署监管，直至刑满才恢复真正自由身。
2010年05月12日
【本報訊】三名物料承建商涉串謀以190萬元賄賂房屋署前總屋宇裝備工程師陳裘大，08年在區域法院被裁定串謀造假賬罪成。其中被判監五年的被告黃洪基及余志偉提出上訴，今年初獲判上訴得直，聆訊永久終止。
上訴庭昨頒佈判決理由，廉政公署偷錄及聽取被告與律師的對話，侵犯法律專業特權，濫用法庭程序，嚴重公然侮辱法庭公正及公眾良心，剝奪被告享有公平審訊的權利。
上訴庭又斥責廉署知道錄音涉法律專業特權後，仍沒有尋求律政司意見，連最基本的程序也沒有去做。對於原審法官拒絕被告申請終止聆訊，上訴庭指欠缺理據，又批評原審法官盡信廉署調查員的證供，做法不可取。案件編號： CACC424/08
