THE QUEEN v. KO HING HUNG

IN THE COURT OF APPEAL

1987, No. 116
(Criminal)

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J U D E M E N T

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Silke, V .-P.:

1. Ko Hing Hung was convicted after trial in the District Court for the offence of trafficking in dangerous drugs. The quantity concerned was a mixture of 442.18 grammes containing 37.52 grammes of salts of esters of morphine.

2. Briefly, it was the Crown's case that a police team has been keeping surveillance at the Fu Lee Restaurant on 11th October 1986. This team was led by Inspector Pannu.  He sat at a table with a person who was said to be an informer.  The rest of the police party were at other tables.  At about 2:10 a.m., the Applicant entered with a bag carried in his right hand, he came up to the Inspector’s table, spoke to the informant and the Inspector was identified to the Applicant.  There was a question asked as to whether the Inspector had brought the money.  He said he had but he wanted to see “the stuff” first. 

3. The Applicant got up, came around to another chair of the same table, beside the Inspector, and showed him the contents of the bag.  The Inspector there upon revealed his identity.  The Applicant, having tried to run away and to discard the bag, was apprehended.

4. The defence was that the Applicant was there for innocent purposes with a friend, a Mr. Chan, who remained outside.  There was a phone call made, he then saw Chan sitting with somebody and he goes up to the table.  He is then approached by the Inspector and, as he put it, “bumped and bustled” into the booth.  He denies carrying any bag.  He says the bag was found under the table after his arrest.  There was no suggestion in this defence that he was, in any way, there by pre-arrangement with the person described as the informer or had been asked to be there by him.  That defence was disbelieved by the trial judge.

5. When the matter first came on for hearing before this Court on 9^th June, a differently constituted Division heard part argument, and having heard it, thought that a matter lay for its consideration which could be properly argued by counsel.  It gave a Legal Aid Certificate for a Senior and a Junior.  The issue was section 57 of the Dangerous Drugs Ordinance.

6. Section 57 in its subsection (1)(b) contains an absolute prohibition on the disclosure of the name of an informer.  In its subsection (2), there could be an application in certain circumstances for that name to be disclosed.  Subsection (1) is governed by subsection (2).  There was such an application in the course of the trial in the District Court which application was refused.  It was in relation to that refusal which is the one of the two grounds of appeal, that the Court thought it proper there should be argument.

7. Mr. Keane, with him Mr. Wong, very properly said to this Court, and we are in entire agreement with him, that on the facts of this case the matter of the disclosure of the name of the informer did not arise.  He has, however, asked us, to give guidance to future courts on the meaning of subsection (2) of section 57, and to rule on the issue.  The second ground was not pursued.

8. Mr. Bruce who appears for the Crown would also be grateful for guidance on the matter, not only on section 57, but also on the similar but stylistically different provisions of section 38 of the Societies Ordinance and section 30A of the Prevention of Bribery Ordinance.

9. What subsection (2) says is:

“If in any proceeding before a court for an offence under this Ordinance the court, after full inquiry into the case, is satisfied that an informer willfully made a material statement which he know or believed to be false or did not believe to be true, or if in any other proceeding a court is of opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted the police, the court may permit inquiry and require full disclosure concerning the informer or such person.: (Emphasis supplied)

10. I emphasized the phrase “ in any other proceeding” because, at first blush, it could be considered to be in contradistinction to the opening words of subsection (2) “If in any proceeding before a court”.  It may be that the true reading of that section is that the opening words are governed by the subsequent passage relating to the willfully making of a false material statement and that the “in any other proceeding” relates to the ordinary common law position of disclosure.  But it would be, in the circumstances here, academic for us to come to any definitive ruling which could not have any bearing upon the result of the appeal and we do not think that we should take course.  While we have suggested a possible reading of the matter, we would leave the issue open until such time as it could become the actual ratio in a decided appeal.

11. In those circumstances, the application for leave to appeal is refused.

D. Keane, Esq, Q.C. & M.K. Wong, Esq. (Messrs. Fung & Leung) for Applicant.

A.A. Bruce, Esq. For Crown/Respondent.