TSOI MAN HUNG AND ANOTHER v. COMMISSIONER OF POLICE

CACV 395/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 395 OF 2007

(ON APPEAL FROM HCAL NO. 37 OF 2007)

----------------------

----------------------

-----------------------------------------

REASONS FOR JUDGMENT

----------------------------------------

Hon Le Pichon JA:

1.  The issue in this appeal is whether the Commissioner of Police is empowered by section 59E of the Police Force Ordinance to take a non-intimate sample of a swab from the mouth (also known as a buccal swab) of a person who has been convicted before a magistrate.

Background

2.  Each of the applicants was convicted in the magistrates’ court of the offence of possession of a dangerous drug contrary to section 8(1)(a) of the Dangerous Drugs Ordinance, Cap. 134.  After sentence, buccal swabs were taken by police officers from each of them.  The purpose of taking a buccal swab (which is a painless procedure involving the wiping a purpose-designed swab along the inside of the cheek) is to obtain a buccal cell sample in order to obtain that person’s DNA profile.

3.  The applicants obtained leave for judicial review and challenged the lawfulness of the decisions of the Commissioner to authorise the taking of the buccal swabs.  Chu J dismissed the application for judicial review on 20 November 2007.  At the conclusion of the hearing, the appeal was dismissed for reasons to be given in writing, which we now do.

Relevant statutory provisions

4.  The Police Force Ordinance was amended in 2000 by adding sections 59A to 59I to cater for the collection and use of DNA samples and profiles and the establishment of a DNA database.  Section 59C authorises an authorising officer in circumstances specified in that section to take a buccal swab from a person suspected of having committed a “serious arrestable offence” for the purposes of investigation.  Section 59E authorises the taking of buccal swabs where a person has been convicted of a “serious arrestable offence”.  That expression is defined in section 3 of the same Ordinance.  Section 59G provides for the establishment and maintenance of a DNA database and in the case of suspects, only samples from those who have been subsequently convicted of a “serious arrestable offence” will be stored.

5.  Section 59E, with the words “serious arrestable offence” substituted by its defined meaning (shown in square brackets below), reads:

“Where a person -

(a)    has been convicted of [an offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 7 years] …; and

(b)    …,

then a police officer of the rank of superintendent or above may authorise the taking of a non-intimate sample of a swab from the mouth of the person for the purposes of section 59G (1) and (2).”

6.  Section 8 of the Dangerous Drugs Ordinance reads:

“8.    Possession of dangerous drug otherwise than for

    trafficking, and consumption of dangerous drug

    (1)   Save under and in accordance with this Ordinance or a licence granted by the Director thereunder, no person shall-

(a)    have in his possession; or …

a dangerous drug.

    (2)   Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable-

(a)    on conviction upon indictment to a fine of $1,000,000 and, subject to section 54A, to imprisonment for 7 years; or

(b)    on summary conviction to a fine of $100,000 and, subject to section 54A, to imprisonment for 3 years.”

7.  Mr McCoy SC who appeared for the applicants accepted that at the moment of arrest for an offence under section 8(1)(a) of the Dangerous Drugs Ordinance, the offence was an indictable offence although the mode of disposition could be summary.  In this connection, both the Magistrates Ordinance and the Dangerous Drugs Ordinance are relevant.

8.  Section 92 of the Magistrates Ordinance, Cap. 227 provides that

“whenever any person is accused before a permanent magistrate of any indictable offence …the magistrate, instead of committing the accused for trial before the court, may deal with the case and convicted the accused summarily …”

Under section 8(2) of the Dangerous Drugs Ordinance (see § 6above), the offence of possession of dangerous drugs is triable either upon indictment or summarily.

This appeal

9.  The very short point raised on this appeal concerns the statutory interpretation of section 59E.  It is Mr McCoy’s contention that the power to authorise a buccal swab does not arise unless at the time of disposition of the offence, i.e. at the time of conviction, it is a “serious arrestable offence” and that it is irrelevant that the offence was a “serious arrestable offence” at the time of arrest.  It was said that the focus of the section was the time of conviction rather than the time of commission of the offence or of arrest.

10.  Mr McCoy accepted that an offence under section 8(1)(a) of the Dangerous Drugs Ordinance is an indictable offence and that its underlying indictability never changes.  But he submitted that once there is an election to proceed summarily, a jurisdictional limit is imposed on the court, and that has the consequence of altering the nature of the offence so that it ceases to be a “serious arrestable offence” because, upon election to proceed summarily, the accused can no longer be in jeopardy of imprisonment for 7 years.

11.  It is clear from the contentions of Mr McCoy that he attaches great significance to the word “conviction” used in section 59E(1).  Indeed, he submitted it was the ‘operative’ expression.  On reading the section, however, all it does is to identify the event that triggers the power contained in section 59E.  The nature of the offence, like its indictability, is set or fixed at the outset upon the commission of the offence.  The mode and place of disposition are matters of administrative decision which, normally, one would not expect to impinge upon the character or nature of the offence.

12.  The scheme of section 59 appears to support this reading.  Mr McCoy accepts that at the investigatory stage, it would be permissible for a buccal swab to be taken under section 59C even when the matter is eventually disposed of summarily.  Yet, on his reading of section 59E, there is no power to do so after conviction.  It was said that because it cannot be known at the time of investigation how the matter would be disposed of, the Commissioner was entitled to proceed on the basis of the offence attracting the maximum penalty.  The anomaly, characterized as a ‘structural problem’, was attributed to ‘inelegant drafting’.

13.  Section 59G deals with storage of DNA information and section 59H deals with the disposal of samples and records.  Section 59G(1)(a) provides that a non-intimate sample taken from a person pursuant to, inter alia, section 59C may be stored “if the person has been subsequently convicted of any serious arrestable offence”.  On Mr McCoy’s reading, there would be no power to store the DNA sample taken at the investigatory stage under section 59C from a person if that person is subsequently convicted in a magistrates’ court.  Yet, (again on Mr McCoy’s reading) it would appear that the Commissioner has no power under section 59H(1) to destroy the samples because it would not fall within any of the situations envisaged in paragraphs (i) and (ii) pursuant to which the sample obtained could be destroyed.

14.  Accordingly, if Mr McCoy’s construction is correct, a DNA sample taken at the investigating stage of a person who is subsequently convicted would fall between two stools: it cannot be stored but at the same time it cannot be destroyed.  One cannot attribute all of these anomalies to bad drafting when none of these anomalies would arise if, as is my view, whether or not an offence is a “serious arrestable offence” is determined when the offence is committed with the consequence that the power to take a buccal swab post-conviction arises even where the conviction is dealt with summarily.

Hon Stone J:

15.  I respectfully agree with the Reasons for Judgment of Le Pichon JA.

16.  The fundamental contention of Mr McCoy was that the relevant statutory provision, section 59E of the Police Force Ordinance, should be construed so as to permit of the surprising conclusion that it was the summary mode of disposition of that which, at the outset, was a “serious arrestable offence” which was sufficient to render it outwith the jurisdiction to authorize the taking of a buccal swab.

17.  For the analytical reasons advanced by my Lady, and as recognized by the learned judge below, this ingenious argument is untenable; the gravamen of section 59E is to inform the nature and quality of the offence which thereafter justifies the taking of such a swab, and the fact that, in the event, the offence is dealt with upon a summary basis cannot affect the jurisdiction as thus initially established.

Hon A Cheung J:

18.  I also agree with the reasons given by Le Pichon JA for dismissing the appeal with costs.