MO YUK PING v. SECRETARY FOR JUSTICE

HCAL 111/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 111 OF 2005

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J U D G M E N T

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1. This is an urgent application to seek leave to apply for judicial review.  The decision that is sought to be challenged is the decision of His Honour Judge Wright given yesterday, refusing an application made by the applicant for a permanent stay of criminal proceedings against her.

2. The relief sought is described in the papers as follows :

1.	An order of certiorari to bring up and quash the decision of His Honour Judge Wright, a Judge of the District Court, made on 23rd August 2005 refusing the application of the Applicant for a permanent stay of the criminal proceedings against her before His Honour in the District Court;
2.	An order of Prohibition prohibiting His Honour Judge Wright from continuing the criminal proceedings against the Applicant;
3.	An order under O.53 r.3(10)(a) of the Rules of the High Court that the criminal proceedings against the Applicant in DCCC 367/2004 and DCCC 636/2005 be stayed pending determination of this Application;
4.	An expedited hearing of this Application be granted.”

3. As the trial before Judge Wright is intended to be continued tomorrow, I have agreed to hear this application and to determine upon it today.

4. In the trial before Judge Wright, the applicant is one of several defendants.  Not all have sought a permanent stay, only the applicant and one other.

5. The applicant faces two charges, one of conspiracy to defraud and one of conspiracy to pervert the course of public justice.  The first charge, I am told, arises out of allegations of stock market manipulation.

6. When the trial commenced before Judge Wright, the application for a permanent stay was made.  It was made on two grounds.  First, notwithstanding the range of remedial measures available at the trial, a fair trial for the applicant was impossible.  Second, that this was one of those rare cases where the circumstances of the prosecution involved an abuse of power which so offended justice and propriety that, to protect the integrity of the justice system, the prosecution should be stopped.

7. In a judgment of 38 pages, Judge Wright held that a fair trial remained possible and that, in his view, this was not a rare case that demanded a stay in order to protect the integrity of the criminal justice system.

8. Leave is sought to challenge Judge Wright’s decision on the basis that the matter should finally be determined in law before the trial is allowed to proceed further.

9. When a criminal trial has commenced, it is accepted that only in exceptional cases will the trial be interrupted – perhaps for many months – to enable a matter of law to be resolved.  Matters of law constantly arise in criminal trials.  Trials after all are legal proceedings.  But if rulings of law made by a trial judge are disputed they can be challenged on appeal.  The criminal justice system is designed to this end.

10. It is also a founding principle of the judicial review jurisdiction that applications for judicial review should in most cases be applications of last resort.  Other remedies should first be exhausted.

11. In the present case, however, it is submitted that exceptional circumstances exist warranting this court exercising its discretion in favour of the application for leave.

12. In order to consider this application in context, something briefly needs to be said of how it has arisen.

13. I am told that in or about April 2003, officers of the ICAC – acting under telephone interception warrants, as I think they are called – intercepted telephone calls made on one or more of the applicant’s telephones.

14. There can be no suggestion that the officers were acting in bad faith.  The warrants had been issued by the Chief Executive in accordance with set procedures.  Those warrants were issued pursuant to s.33 of the Telecommunications Ordinance, Cap.106.  It reads as follows :

“Whenever he considers that the public interest so requires, the Chief Executive, or any public officer authorised in that behalf by the Chief Executive either generally or for any particular occasion, may order that any message or any class of messages brought for transmission by telecommunication should not be transmitted or that any message or any class of messages brought for transmission, or transmitted or received or being transmitted, by telecommunication shall be intercepted or detained or disclosed to the Government or to the public officer specified in the order.”

15. I am told that s.33 has been in existence since 1963 and, to date, its lawfulness in the context of the Bill of Right and/or the Basic Law has not been challenged.

16. In an open and free society, covert surveillance is a matter of sensitivity.  Indeed, I have granted leave recently in respect of two applications which go to the constitutional validity of covert surveillance.  The applicant’s challenge is therefore one of public interest, a point emphasised by Mr Cheng Huan SC, leading counsel for the applicant.

17. But public interest, of course, on its own, can rarely be good reason to take the exceptional step of interrupting an on-going criminal trial.

18. In respect of authorised telephone interceptions, I am told that the ICAC, and all other law enforcement bodies, use the information gathered for intelligence purposes only and not for evidential purposes in criminal prosecutions.  The distinction is important.

19. In respect of the applicant, therefore, any information obtained was never – at any time – intended to be used to support a prosecution.

20. The system employed was, I think, roughly as follows.  The tapes of the intercepted calls were studied by officers in the special unit authorised to do this work.  A paraphrase of what was heard was produced and from that paraphrase a synopsis was produced.  In short, a process of distillation took place.  The purpose was to isolate relevant intelligence, inculpatory or exculpatory.

21. Once this was done, in accordance with set procedures, the tapes were destroyed together with all the resulting written material other than those notes which were, it seems, the final distillation.

22. The destruction was not an act of bad faith.  The purpose was to protect the privacy of third parties.  It was done in accordance with set procedure.

23. In respect of this applicant, it appears that the intercepts were conducted on the basis that she may be involved in matters of corruption.  No intelligence of this kind was obtained.  However, as I am told, intelligence was obtained to the effect that the applicant may – and I stress ‘may’ – be involved in illegal stock market manipulation.

24. In the result, the intelligence unit gave to the investigative branch of the ICAC a very distilled piece of intelligence to enable a criminal investigation to commence.  Evidentially, of course, the investigation was starting from square one.

25. Once the intelligence was passed, all that was left, I understand, were a few notes.

26. I state again that the destruction of the great bulk of the intelligence material was not arbitrary.  The destruction of the material was in terms of an administrative or executive policy created by the Security Bureau to ensure that the rights of privacy of third parties were protected and, in addition, to ensure, as the Security Bureau saw it, a consistency of approach by all investigating agencies and, through that, a fairness of approach.

27. In the run-up to the criminal trial, the applicant was informed of the notes held by ICAC that concerned the earlier intelligence gathering.  The notes were disclosed as unused material.  For the prosecution, they had no evidential value.

28. It is a fundamental common law principle that the defence is entitled to access to unused material.  As Mr Cheng Huan puts it, it is the prosecution’s duty to disclose to the defence relevant material which includes information which may undermine its case or advance the defence case.  This duty is not limited solely to the disclosure of admissible evidence.  Information may not be admissible but may lead – by a train of inquiry – to evidence which is admissible.  Material which is not admissible may be relevant, nevertheless, and may be useful for cross-examination of a prosecution witness on credit.

29. In the present case, says counsel, the prosecuting authority was obliged by fundamental principles of disclosure under the common law to disclose all unused material, including all material created by the telephone interceptions, the tapes and notes and the like.  This was material which the applicant wished to see because it could be directly relevant to her defence. 

30. The material, of course, is no longer in existence.  It has been destroyed.

31. Mr Cheng Huan submits that the applicant would have wanted access to the material not simply because it was her common law right but because in her case it could have been of direct and material assistance to her.  What was said in the conversations had given rise to the criminal investigation.  More than that, one or more of the prosecution witnesses – accomplices – may have been recorded in those conversations.

32. What is argued is that the destruction of the material not only thereby denies the applicant a fair trial but is such a fundamental breach of the applicant’s constitutional rights that the prosecution cannot be allowed to proceed.

33. How does this asserted breach of constitutional rights come about?  It is said that s.33 of the Telecommunications Ordinance is inconsistent with art.30 of the Basic Law.  Art.30 reads :

“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.”  [my emphasis]

34. If, therefore, there are to be interceptions of private telephone calls they must be in accordance with ‘legal procedures’.  It is argued, I presume, that the phrase is narrower than the phrase ‘in accordance with law’ and implies procedures dictated by legislation.

35. But there were no ‘legal procedures’ in place, says Mr Cheng Huan, only administrative procedures and we do not have rule by executive decision, we have rule by law.

36. What amounts to ‘legal procedures’ in terms of art.30 is, I anticipate, not an easy issue, especially as the Telecommunications Ordinance gives power to the Chief Executive to order intercepts and thereby to set up a system for the rational and fair exercise of that power.

37. But, says Mr Cheng Huan, easy or not, in order to decide the application for a stay, Judge Wright was obliged to decide the issue of whether the procedures in place in respect of covert surveillance did or did not breach the Basic Law.  However, he refused to do so.  For that alone, his decision to refuse a stay is fundamentally flawed.

38. This brings me to a brief consideration of the judgment itself.  In my view, it is in many respects an impressive document, logical and articulate.  It has been of much assistance to me.

39. In respect of the possibility of a fair trial, the judge said :

“The only evidence before me in respect of these applications is that adduced by the prosecution.  Neither accused gave or led any evidence in support of her application, particularly in support of the contention that it is impossible to obtain a fair trial or to show how non-disclosure may, in some practical way, have prejudiced the defence.  In the case of the 1^st accused [the applicant] whose telephone conversations were undoubtedly monitored, there was no evidence dealing with the existence of exculpatory content in the monitored telephone conversations which allegedly had been omitted from the intelligence information.”

The judge continued :

“In simple terms, these applications are entirely speculative.  The accused are simply unable to point to anything whatsoever which enables either to say, other than on a purely assumptive or speculative basis, what material there was, which, by virtue of being deprived of it, results in the inevitability of the impossibility of a fair trial.  That, of course, is a matter of simple logic.  If the material no longer exists, for whatever reason, an accused may be unable to identify any material which is capable of use in the discharge of the onus.”

He then went on to say :

“It is important to retain at the forefront of one’s mind the fact that it is the accused who bear the onus to establish for the purposes of this first basis that, firstly, she has been prejudiced or potentially prejudiced and, secondly, that the prejudice or potential prejudice will result in it being impossible for her to have a fair trial.”

He concluded by saying :

“To discharge the onus, it is, in my judgment, simply inadequate to come to court to say that it is not known whether there is or is not material contained in that which has been destroyed, that the court must therefore assume that there was something that may have been of assistance to the accused and that the court must therefore assume that the accused is prejudiced by the deprivation of whatever that might have been.”

40. On behalf of the applicant, it is argued that the judge may have been wrong in law in putting the onus on the applicant to establish potential prejudice.  That, of course, is another issue of law arising in the course of the trial, again perhaps not an easy one.

41. In respect of the second limb of the application; namely, that there had been an abuse of power by the prosecuting authorities which must result in the prosecution being halted, the judge, as I understand it, said that the ICAC in this instance had been doing no more than following a policy which was incumbent upon it to do, that there was no suggestion it had acted in bad faith, and that the policy, whether consistent with the Basic Law or not, was inherently rational.

42. He therefore held as follows :

“	The destruction of materials about which complaint is made was effected by the ICAC in pursuance of a policy with which it was required to comply if it wished to engage in telecommunications intercepts. Even assuming, but without deciding, that sec. 33 were to be inconsistent with the Basic Law and consequently no longer of any force or effect that fact taken on its own would neither assist the Accused in establishing that it is impossible for them to have a fair trial nor alter the nature of the conduct of the ICAC, in carrying out the telecommunications intercepts or destroying the subsequent product, so as to characterise that conduct as unconscionable, being possessed of ‘serious fault’ or mala fide.
	It follows that, as interesting as the debate about sec. 33 may be, the position of the Accused will not be affected by any decision.”

43. In summary, having heard certain evidence and having heard submissions, the judge decided the matter on the two issues before him : first, is a fair trial possible?  He believed it was.  Second, had there been an abuse of process which went to undermine the integrity of the justice system?  He said no, there had not.

44. As to the constitutional validity of s.33, the judge, it seems to me, was saying in plain terms : even if there is an inconsistency, having regard to all the circumstances, it is not so profound in the case now before me that it denies the applicant a fair trial or so shocks the conscience of the court as to demand a stay.

45. It is difficult to criticize the judge for his conclusion.  Not all breaches of the Basic Law or the Bill of Rights demand remedial action, not all such breaches should bring criminal trials to a halt.  It is a question of weighing all relevant matters.  If it was otherwise it would become a game of ‘spot the constitutional slip and avoid the trial’.  The Basic Law is not such a draconian document.

46. I come now to look to whether, in all the circumstances and against this background, leave should be granted.

47. The standard test for leave is whether the material before me discloses matters which, on further consideration, might disclose an arguable case.  It is not a high test.  It is intended only to eliminate vexatious or hopeless cases.

48. As to the merits of the decision made by Judge Wright, there is clearly a prima facie arguable case.  It is not a hopeless case.  The issues before the judge were complex, both factually and legally, also in constitutional terms.

49. But, as I have said earlier, issues of law arise in criminal trials all the time and in many cases it may properly be argued that the decision in law should have been other than the one made by the trial judge.  But that is why the appeal process exists.

50. Mr McWalters SC, who has appeared for the respondent to assist me in so far as I ay require it, has shown me a judgment of the Court of Appeal – Dairy Farm Company Limited v. Director of Food and Environmental Hygiene, unreported, CACV283/2004 – in which in paragraph 28, per Rogers VP, the following is said :

“It is undesirable that there should be appeals and applications at an interlocutory stage of prosecution with a view to stifling the prosecution.  This court is mindful that it is undesirable to encourage judicial review proceedings in such circumstances as it would have a tendency to prolong proceedings and make what should be comparatively simple prosecutions into long, drawn-out litigation with consequential satellite litigation.”

51. In earlier judgments, I have said that the criminal process must be allowed to continue and only in very exceptional cases – invariably when matters go to fundamental jurisdiction – will the collateral process of judicial review be permitted.  In the present case, the fundamental jurisdiction of the court to conduct the trial cannot be questioned.  The stay of application was a matter for the judge to determine in his discretion.  He had the power to do so and his decision does not undermine his jurisdiction.  Whether he was right or wrong does not go to fundamental jurisdiction.  It is a matter which – if necessary – can be dealt with on appeal.

52. It is also important, in my view, to consider not only whether there is an alternative procedure, that is, by appeal, but whether the real issue can be conveniently determined by that means.  If it can then clearly the alternative procedure – appeal – should prevail and should be the route adopted by the aggrieved person.  If, on the other hand, the alternative procedure is not apt to deal with the real issue then there is nothing to prevent an application for judicial review.  In the present case, I am satisfied that the alternative procedure is the entirely correct procedure to deal with the real issues arising out of the stay application and the judge’s decision in that regard.  As I have said, the criminal division of the Court of Appeal deals regularly with profound constitutional issues and, I believe, in the criminal jurisdiction is the appropriate court.  Considerable caution must be exercised by this court before it allows the integrity of the criminal process to be interrupted by reason of the exercise of its supervisory jurisdiction.  It has been said that judicial review is a remedy of last resort.  That must be emphasized.  It is not a remedy of first resort although all too often attempts are made to make it so.

53. During the course of submissions, Mr Cheng Huan has placed considerable reliance on the decision of the Supreme Court of Canada in R. v. Carosella [1997] 1 SCR 80.  It is said that this judgment goes directly against Judge Wright, both in respect of his finding that the onus of establishing a fair trial was on the applicant and his finding that the application for a stay on the grounds of a fair trial being impossible was ‘speculative’.

54. However, in my judgment, it is important to bear in mind that Carosella was a majority judgment of the Supreme Court of Canada – indeed, it was a majority judgment, I think, by a majority of one – and there were powerful dissenting judgments by judges, including La Forest J, which suggest that the approach of Judge Wright is the approach to be preferred.  In this regard, I cite the minority judgment :

“While the production of every relevant piece of evidence might be an ideal goal from the accused’s point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial.  Where evidence is unavailable, the accused must demonstrate that a fair trial, and not a perfect one, cannot be had as a result of the loss.  He must establish a real likelihood of prejudice to his defence.  It is not enough to speculate that there is the potential for harm.  Materials can be easily lost and setting too low a threshold for finding a breach of the right to full answer and defence would bring the justice system to a halt.  While it is true that, with regard to certain rights, a court can infer the necessary degree of prejudice, this is not uniformly so.”  [my emphasis]

The judgment goes on to say :

“To demonstrate that a breach has actually occurred often demands a finding and measuring of the prejudice suffered.  Given the nature of the action which is being challenged in the present case – the actual pursuing of the prosecution – it seems quite appropriate to require a demonstration of a real likelihood of prejudice.  There are ample legal and policy reasons for placing this onus upon the accused.  The burden is not an unmanageable one and is consistent with established jurisprudence.  For missing evidence to cause a violation of the Charter, therefore, the accused must demonstrate upon a balance of probabilities that the absence of the evidence denies him a fair trial. … It is not proper to state that a Charter right has been violated and that a fair trial cannot be had based on pure speculation.”

55. I have been told that the s.33 issue has not yet been resolved.  If the issue falls to be determined in the context of criminal proceedings, which way will our courts go?  Will they follow the majority or the dissenting minority?  If the views of the minority are chosen then it seems to me that a decision can best be made within a full factual context and that context must be created by allowing the trial to be completed and evidence led.  Perhaps then the applicant will be able to demonstrate – on the evidence – that she has been prejudiced or has suffered the real likelihood of prejudice.

56. To my understanding, applications for a stay are not confined to the beginning of a trial.  Judge Wright is master of his own court and can act at any time to protect the integrity of process in his court.

57. I am satisfied, therefore, even though a prima facie arguable case has been demonstrated, that this is not an exceptional case which requires this court to exercise its supervisory jurisdiction at this time.

58. In my judgment, the imperatives point to the fact that justice in the longer term will be assured by having this trial completed and then, if necessary, having the issues resolved on appeal against a fully realised evidential background.

59. I understand the argument that a reasonably long trial lies ahead.  I understand that if the issue of a stay can be determined finally it may – only ‘may’ – make the trial redundant.  But these are not matters, in my view, which should persuade this court to exercise its jurisdiction.  Whether there will be a saving in time, cost and concern is in this case problematic.

60. In my judgment, in this case, the integrity of the criminal process must prevail.  Leave is refused.

61. If it is necessary, I will hear from the parties on a separate occasion concerning costs.